Jay Nixon, For The Defense

At Fault Lines, Orleans Chief Public Defender, Derwyn Bunton, was crossed, following his painful decision to start refusing cases that his office could no longer competently handle.

We are committed to operating within the “triangle of defense:” on one side of the triangle are constitutional mandates, on another side are ethical requirements and on the other side are professional standards. Our cases have to fit in that triangle, and to the extent our cases don’t fit in the triangle, our representation is compromised, ineffective or non-existent.

The fact was that the volume was overwhelming, the burdens on public defenders intolerable and the reality that his staff, no matter how great their effort and dedicated to their clients, the constitution and ethics, was unable to function within the “triangle of defense.”  Derwyn had no option but to say no.

But that raises a question. Is the situation in Orleans Parish that much worse than other places that there, but only there, the ram had hit the wall?  Were other public defenders doing fine, or at least meeting minimal requirements? Was Derwyn wrong, perhaps too demanding, or are others wrong, not demanding enough?

On August 2, 2016, Michael Barrett, the director of the Missouri State Public Defender sent a letter to Governor Jay Nixon

Seven years ago, your office vetoed Senate Committee Substitute for Senate Bill No. 37, which would have provided caseload relief to an overburdened public defender system. In denying that relief, you acknowledged that MSPD was operating “under significant stresses” and committed to working with the General Assembly to fix the problem, but never did.

Instead, you have repeatedly cut funding for an indigent defense system that continues to rank  49th in the U.S., with a budget that the consumer price index indicates has less value now than it did in 2009. After cutting $3.47 million from public defense in 2015, you now cite fiscal discipline as reason to again restrict MSPD’s budget, this time by 8.5%. However, and despite claims that revenues are considerably less than expected, you did not restrict a single dollar from your own budget, and the average withhold from 12 of your executive agencies does not even add up to one half of one percent (.47%).

While funding methods vary wildly from place to place, there are two universal problems: first, funding for public defense is invariably inadequate. The “why” is simple; it’s not sexy, there’s no electoral bang for the buck and poor criminal defendants aren’t the most sympathetic group to taxpayers.

Second, in the scheme of allocating scarce resources, indigent defense funding sucks up funds that elected officials can’t use for themselves, their offices, their staff, their projects, their needs and desires. Somebody is going to do without, and it’s not going to be the guy who makes the funding decisions.

But unlike Derwyn, Michael Barrett decided to go a different route.

As Director of the Public Defender System, [ can only hire attorneys when [ have the funding to do so. Because you have restricted that funding, MSPD must hold a significant number of vacant positions open to have the necessary funds to make it through the fiscal year, a task which is exacerbated by a 12% increase in cases over the year prior. To avoid having to close one or more offices, the remaining option is to consider the use of Section 600.042.5, which gives the Director of the Public Defender System the authority to “[d]elegate the legal representation of any person to any member of the state bar of Missouri.”

The word “delegate” may be somewhat misleading. Usually, it refers to handing off responsibility that is vested in one party to another. Indeed, the representation of the poor is a responsibility, a duty, that is imposed by the Constitution under the 6th and 14th Amendments upon the state or local subdivisions. If they want to prosecute, they have to provide counsel to defend. It is a very serious responsibility.

But its use here is rather different. Section 600.042.5 of the Missouri revised statutes provides:

5. The director may:

(1) Delegate the legal representation of any person to any member of the state bar of Missouri;

In this usage, delegate means “press into service.” Some might call this “slavery,” though that would be a shallow understanding of the usage. Rather, this would be a licensure obligation imposed upon lawyers. When you undertake admission to practice law, it comes with certain obligations. Adherence to the Code of Professional Conduct is such an obligation. So too is being required to perform pro bono representation.  And this duty, unpleasant though it may be, falls within the requirements imposed on lawyers. After all, no one forced you to become a lawyer.

It’s not to say that there aren’t concerns and arguments against the imposition of forced labor on lawyers. Indeed, there are plenty, ranging from competency to defend the accused to the financial demands that many lawyers struggle to meet. Much as the public may not realize it, not all lawyers are rolling in money, and can afford to take the hit of providing free representation in their spare time.

But Barrett has chosen to narrow his focus in his first exercise of the authority he possesses under law.

As of yet, I have not utilized this provision because it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis. However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it.

Therefore, pursuant to Section 600.042.5 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defense, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case.

Boom.

Granted, it’s a gimmick. Derwyn’s approach was to take on the system, and it left indigent defendants standing naked before the court.  Barrett, on the other hand, seeks to make his point with a scalpel, one incisive cut in the hope of driving the point home to the governor by pressing him into service and making it his personal duty.

Will this work? Will this do more than make a quick splash, get a laugh out of those who enjoy the irony and appreciate karma?  Will Jay Nixon actually do it, or pass it off on someone else, since the representation of the individual assigned to him is the duty at hand, and as long as the person is competently defended, it doesn’t matter who actually stands in the well. No doubt Nixon knows a guy or two who would do him a favor and fill in for him.

But something has to be done.  Can’t blame Barrett for trying. Can’t blame Derwyn for trying. We can, however, blame elected and appointed officials in all three branches for allowing the situation to come to this. And we can blame the public for not giving a damn whether the Constitution is honored or ignored, as long as it doesn’t touch their pockets or lives.

26 thoughts on “Jay Nixon, For The Defense

  1. Thomas Downing

    Great. Sounds like Grisham, but still great. I hope he follows up with such members of the legislature as are also lawyers. Should that happen, I would give odds that Section 600.042.5 is 1.) repealed, or 2.) made to apply only to solo practitioners who have a record of doing criminal defense work, or 3.) most likely, amended to and an exemption for elected officials “and others as designated from time to time by the governor.”

    1. Patrick Maupin

      The legislators only receive $36K/year from the state, and they voted for increased funding, and, as you point out, they could defang the public defender’s office, so of course the PD should go out of his way to fuck with them.

  2. Levi

    I realize it’s a gimmick, but is there anything stopping him from sending the next letter to AG Koster, then in a more targeted way picking DAs in the jurisdictions for which the public defenders are most overloaded? At least, until Nixon gets a change to section 600.042 pushed through (which will probably be quick)..

    1. REvers

      If I was Joe Defendant, I don’t really think I’d appreciate having a sitting prosecutor appointed to defend me. Not even as a gimmick.

  3. Michael McNutt

    David Snively from Monsanto and other top lawyers appointed from large companies might get him where he wants to go quicker. Messing with Nixon is a gimmick, messing with large companies that put Nixon in office might actually get some funding and job done.

  4. Patrick Maupin

    First they ignore you, then they laugh at your gimmick, then the judges start sanctioning lawyers for incompetence, then a couple get disbarred…

    Hey, a fella can dream, can’t he?

  5. Alex Bunin

    Michael Barrett’s letter is a way to get wider press coverage for an under-reported issue. Derwyn Bunton’s stand is really the only action a public defender can take to force the issue of underfunding to a resolution. I respect and support both of them.

    1. SHG Post author

      Kind of interesting, though, to see how many people take Barrett’s effort to press Nixon into service seriously. Pity the poor man who would end up with him as his lawyer.

      1. John Barleycorn

        Pity the poor man who draws the straw of the former Missouri Attorney General?

        Granted Nixon was part of the ’90s get tough on crime wave but that you seriously doubt he could pull it off says something.

        Licensure obligation what a concept.

        Hope Barrett is ready to play, this could go several interesting ways that Barrett might not be expecting.

        Nice club you all have going for you though.

      2. Andrew Fleischman

        That’s the struggle I’m having with this. It’s awesome PR. It makes me want to stand and cheer. But did they clear this with the client?

          1. SHG Post author

            This isn’t exactly “generally.” Clients are still entitled to competent, conflict-free counsel.

            1. Kirk Taylor

              The PD made it a point to assign a case where the defendant is free, without bail, pending trial. This ensures that any delay or shenanigans have minimal effect on the client.

              This was well thought out by the PD

        1. Laura Lou

          This was thoroughly discussed with the client and he fully granted permission to move forward with the plan, knowing everything that would come with it. MSPD covered their bases.

  6. Derek Tokaz

    Surely there’s some sort of ethical problem when you use that power to punish or harass your political opponents.

    Even if we don’t take the appointment seriously, it seems rather distasteful to treat that power as a political football.

      1. Derek Tokaz

        Surely, as in “There’s gotta be something in the rules of professional conduct that’s prohibits this tomfoolery, right? The rules are pretty long, and I remember in orientation they told us not to be dicks to each other.”

        Rule 4-4.4(a) gets pretty close, though not quite on the mark since it applies to what you’re doing while representing a client. There’s probably something else in there, but I dunno, they didn’t teach the rules of professional conduct in my professional responsibility course.

        1. SHG Post author

          If by “pretty close” you mean, “has nothing to do with it,” then I agree. Otherwise, either there’s a DR or there isn’t. There isn’t. Even if it feelz like there should be, there isn’t. And frankly, I don’t share your feelz on the issue in any event. You’re entitled to your feelz, but that doesn’t make it an ethical question, no less a disciplinary rule violation.

  7. Noscitur a sociis

    “In this usage, delegate means “press into service.” ”

    Does it? My reading would have been that it allows the public defender to contract out cases to private attorneys (as long as they’re members of the Missouri bar). While I didn’t spend a lot of time on it, I didn’t uncover any authorities that shed much light on the matter in either direction.

    1. SHG Post author

      If you’re going to address something I’ve written, at least read it correctly. The “press into service” refers to what Barrett is trying to do, not what the law provides. But even so, if you have can’t be bothered to do the legwork, why offer your “reading” that you pulled out of your ass without any basis whatsoever?

      More importantly, this is the sort of silly question a non-lawyer might ponder. Barrett isn’t seriously expecting Nixon to represent the guy. He’s making a point.

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