It was only a few years ago when public defender Tina Peng publicly said what everyone knew, that she was failing her clients. It wasn’t that she didn’t care, or wasn’t a good lawyer, but that it was impossible to provide effective assistance of counsel given the numbers. Too many defendants. Too few lawyers. Not enough time to do a job beyond being a warm body standing next to an unknown person in a courtroom while they pled their life away.
One might have reasonably thought this fundamental problem had magically been resolved, given what’s been happening over the past couple of years. Public defenders have become the heroes of their own stories on social media, calling each other (but mostly themselves) badass, obsessed with using their time to respect the gender identity of defendants in lockup rather than use their three minutes to glean salient information to respond to the probable cause at arraignment.
Or maybe the diversion of funds for the representation of undocumented immigrants that could have been used for indigent defense made you assume the money for public defenders was no longer an issue. After all, if there was money for lawyers for undocumented immigrants, certainly the indigent citizens in criminal court were already covered.
But if the problem was solved, why then would there need to be a wait list in Missouri?
“The reality is that even without an official wait list, the same effect is happening within our office,” Stephen Reynolds, head of the county’s public defense office, told The Appeal. “Lawyers do not have the time to work on cases and clients are neglected, so it just ends up being an unofficial wait list.”
In St. Louis County, where 4,118 people applied for public defender services in the last fiscal year, there are 21 public defenders. Roughly 75 percent of them have caseloads considered “excessive,” according to an October court filing that requested the wait list.
Officious people who have never had the pleasure of defending a human being come up with limits on what constitutes an “excessive” caseload. It serves the empirical desire to have numbers to point at when explaining why more lawyers, which means more money, is needed. In the trenches, however, empiricism doesn’t cut it.
A case will take as much time as it needs, no matter what the number crunchers say. Some take less. Some take more. Some take much more. But from a distance, no one would question the impossibility of 21 PDs being capable of defending 4,118 indigent defendants. Or half that number. Or a quarter of that number, if they’re going to actually provide effective assistance of counsel. And that assumes every one of those 21 PDs is highly experienced, skilled and capable of doing so, if they only had the time.
In Orleans Parish, Derwyn Bunton decided to do the unthinkable. Just say no. It was highly controversial, as it left indigent defendants without any representation when the PDs maxed out their capacity, and it brought the ACLU down upon them for their inability to overcome Newton’s Third Law.
In St. Louis, the proposed solution is to put indigent defendants on a wait list.
“Client cases are not worked on. Phone calls are not returned. Confined clients are not visited,” wrote Reynolds in the filing.
The wait list, he says, will lead to better outcomes for people his office represents because his attorneys will have more time to work on their cases. Without it, poor defendants will continue to be forced to take more plea deals and potentially serve longer sentences. Ninety-nine percent of convictions in Missouri are the result of guilty pleas, according to Missouri courts system data.
To some extent, it’s a triage system, where defendants in the most serious cases won’t be constrained to wait while others won’t be so “lucky.”
Under the criteria Reynolds is proposing, people who are incarcerated or have been charged with a Class A or B felony such as murder, rape, and armed robbery will not have to wait to be assigned an attorney. The list will instead be reserved for people charged with Class C, D, or E felonies. These include offenses such as involuntary manslaughter, drug possession, and fraud. To get off the list, a person may either be assigned a private attorney or wait until a public defender can accept clients “as workload permits.”
While this suggests that those charged with the most serious crimes will be covered, it’s not as if defendants charged with lesser felonies (forget misdemeanors) aren’t in dire need of representation and their consequences aren’t any big deal. And this is happening with the cooperation of their newly elected progressive prosecutor, who thankfully appreciates the constitutional duty as established in Gideon.
“A wait list may be the least-bad alternative available,” Bell wrote in a Nov. 20 filing supporting the list. “While our offices are often diametrically opposed in court, we agree that defendants need and deserve adequate representation and it is widely known that the office of the public defender, like our office, is understaffed and overworked.”
There is, of course, an entirely different way to view this problem, the failure to provide competent counsel to indigent defendants charged with crimes. This isn’t a burden to be carried by public defenders, in particular, or lawyers, in general. This is a constitutional duty, and as such is a burden upon society at large.
The problem is paying taxes to cover the cost of indigent defense never got anyone elected to office, as it’s just not the sexiest use of public monies like cops, prosecutors or prisons. But if cops arrest the poor, and district attorneys prosecute them, then they need lawyers to defend them. They didn’t ask to be arrested or prosecuted, and you can’t shift the problem to them by begging the question of guilt.
Yet, the problem is dumped on 21 public defenders in St. Louis to cover 4,118 indigent defendants, a physical impossibility that they’re somehow expected to either figure out, manage or pretend isn’t a problem. While PDs on the twitter all look like Clarence Darrow, they’re more likely to look like Tina Peng in real life. The adequacy of indigent defense isn’t remotely fixed, and no innocent defendant feels better about getting life plus cancer as long as you used her preferred pronoun.