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Public defenders say criticism based on bad information

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Public defenders say criticism based on bad information
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Missouri Bar Association recommendations to ease public defender workload

• Change laws to eliminate jail time for some nonviolent, nonaggravated offenses. (Public defenders only handle cases with a risk of incarceration.)

• Change rules to allow the advance interview of a criminal case witness to be electronically recorded, saving time and money on deposition transcripts.

• Restrict changes of venue to mostly felonies and allow the change only for the trial, not pretrial hearings.

• Change rules to extend time standards in a way that would allow defendants in misdemeanor cases more time to secure money for private counsel.

• Differentiate felony from misdemeanor cases when deciding who is indigent, reflecting that it usually costs less to obtain private counsel in misdemeanors.

• Establish a permanent Missouri Bar committee on issues related to funding for prosecutors and public defenders.

• Pass legislation encouraging diversion programs for low-level, nonviolent offenders to make restitution and obtain treatme

ST. LOUIS COUNTY • In a courtroom clash, the prosecutor sits at one table and the defense lawyer at another, balanced in debate over the guilt of the defendant.

Outside the courthouse, the battlefield is a lot less defined as Missouri's public defenders take steps to widen a work slowdown that had drawn the wrath of some prosecutors.

The defenders say they are overworked beyond the breaking point. Some prosecutors say they don't believe it. And the sides cannot agree on a common set of numbers to frame their dispute.

Robert P. McCulloch, the St. Louis County prosecuting attorney, has complained that if he can prosecute 100 percent of the criminal cases with 31 trial lawyers, the public defender should be able to handle the 28 percent it represents with its 17 lawyers.

But it's not 28 percent at all, according to Cathy Kelly, deputy director for the Missouri State Public Defender System. "It can't be tracked," she insisted. "None of us are counting cases in the same way."

As the system's scattered offices became overloaded, it suspended acceptance of new clients in three court circuits for the remainder of July and warned that more would come. St. Louis County was among those formally warned. Since then, the number of counties put on notice has grown to 56 — including Jefferson and Lincoln but not the city of St. Louis.

The impact on defendants has been minimal so far, with only the three circuits affected and their deferred July cases accepted with the arrival of August. But some of the system's doors are expected to close again each month, possibly a little earlier each time.

While the effect is not very noticeable now, waits for help could increase in the longer term, and judges could face pressure to appoint private counsel to fill the gaps.

Public defenders in Florida have taken similar measures, according to the National Center for State Courts.

Some critics have accused the Missouri system of exaggerating its problems to pressure the Legislature for more money in tight times.

Dean Dankelson, who is president of the Missouri Association of Prosecuting Attorneys and Jasper County prosecuting attorney, recently called the tactics "reckless, self-interested and irresponsible," and accused the defenders of "attempting to hold the entire criminal justice system hostage."

Kelly denied it, saying: "I find it silly and insulting that so much energy is being spent trash-talking. It's not going to fix the problems."

She said the state's money troubles don't relieve the system of its duty to provide quality representation. "We understand the economic circumstances right now, but we can't just decide that we can't afford to abide by the Constitution."

The workload is easily misunderstood, she said.

For example, a case assigned to the associate circuit level first and then passed along to the circuit division is counted twice by the courts but once by the defender system. It skews the percentage with a false impression that the defender is representing only one of two clients.

Also, she said, prosecutors count cases in which the defendant is serving probation as an open case. Public defenders don't, again giving a falsely low impression of their numbers.

Beyond that, prosecutors and public defenders in a particular county don't always handle the same types of cases. The public defender's trial office in St. Louis County assigns attorneys to juvenile cases, while the prosecutors do not; the Family Court has its own lawyers.

And there are differences in the basic work. Police do much of the investigation for prosecutors. The public defender system does its own, and its lawyers must conduct time-consuming interviews with clients who may be held in jails with cumbersome visitation policies.

Dankelson said ideas from the Missouri Bar Association's Criminal Justice Task Force should be considered before the defenders refuse cases. "That was a drastic step to take before we've even had the opportunity to try to implement the task force's recommendations," he complained.

Those suggestions included measures for easier management of cases after changes of venue, and statute changes to allow fines instead of jail time for some offenses. Public offenders are only assigned in cases that carry a penalty of incarceration.

"I would rather see everyone in the justice system working on this," Dankelson said. "Our concern is that justice will be delayed for both the victims and the defendants."

The defenders say they have worked for five years with the Bar Association, Legislature and Missouri Supreme Court. "This isn't out of the blue," Kelly said.

Some jurisdictions have tried their own solutions. In Springfield, a volunteer program assigns private attorneys to criminal clients for free. In Kirksville, prosecutors agreed not to seek jail time for certain minor offenses.

The last two chief justices of the Missouri Supreme Court gave warnings about the problem.

In February, Chief Justice William Ray Price told legislators, "Either increase the public defender's funding or tell the public defender who to defend and who not to defend within the limits of their funding."

The year before, Chief Justice Laura Denvir Stith suggested that some defendants might walk free without a trial if the crisis continued to grow.

The public defender system has 368 attorneys and a 2011 operating budget of $34.7 million and has repeatedly asked for more.

This year, it sought an extra $4.1 million to hire more lawyers and $8 million for 206 support workers. That would have provided one secretary, investigator and legal assistant for every three attorneys. Currently, there is an investigator for every 6.7, a legal assistant for every 10.84 and a secretary for every five. Lawmakers responded with no more for lawyers and $250,000 more to expand the support staff.

Kelly said the agency's attorneys are expected to work 45 hours a week, with time off for vacations and illness. Last year, she said, they forfeited enough vacation time to do the work of 12 additional lawyers, as most were too busy to take all their time off.

The average cost per case was $376 in 2010, she said, while public defense cases contracted to private counsel cost the state about $750 each.

The pay range for public defenders starts at $37,296 and goes to $68,000 for the district defender, the top attorney in each office.

Some of the senior attorneys in the system, including those who work capital murder cases, make more because they were employed when state employees were still getting step increases in pay, officials said.

Said Kelly, "I think we have gotten as lean as we possibly could get and provide effective counsel."

Copyright 2012 STLtoday.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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