STATE EX REL. MISSOURI PUBLIC DEFENDER COMM'N. v. PratteSTATE EX REL. MISSOURI PUBLIC DEFENDER COMM'N. v. Pratte
Wendy W. Horn, Patrick L. King, St. Francois County Prosecuting Attorney‘s Office, Farmington, MO, for respondents in no. SC 89882.
Stephanie Morrell, Assistant Prosecutor, Boone County Prosecutors‘s Office, Columbia, MO, for respondents in no. SC 90195.
MICHAEL A. WOLFF, Judge.
Introduction
These writ proceedings raise the question of the role of the courts, the public defender commission and the legal profession in fulfilling Missouri‘s constitutional obligation to provide attorneys to represent indigent defendants facing incarceration for their alleged crimes.
There is an apocryphal story in legal circles that a well-known prosecutor some years ago voiced his support for the state to provide attorneys for those accused of serious crimes, noting that without legal representation, an accused cannot be tried: “I can‘t fry `em if I can‘t try `em.”
The quip lacks good taste, but it highlights the state‘s problem. These cases are about public safety as well as constitutional rights. An adequate supply of lawyers available to represent indigent defendants is as important to the functioning of the criminal justice system as are adequate resources for law enforcement, prosecutors and the courts.
The public defender brought these writ proceedings after the respondent judges appointed public defenders in three cases, contrary to rules established by the commission to control the caseload of the statewide public defender program.
These cases are three of more than 83,000 in the most recent fiscal year in which a public defender was assigned to defend indigent persons charged with crimes that carried potential for incarceration.1
The constitution protects the right of an accused to an attorney; the state of Missouri, through its executive and the General Assembly, provides the funds to meet this obligation. The problem that the commission confronts is that the resources provided for indigent defense are inadequate.2
The statewide public defender system, under rules adopted by the commission, had the capacity last fiscal year to spend only 7.7 hours per case, including trial, appellate and capital cases.3
These three writ proceedings raise questions as to the validity of the commission‘s rules governing caseload management. Before dealing with the specific problems presented by these three writ cases, it is useful to review the constitutional right to counsel and the history and current status of the public defender system to understand the overall problem these cases represent.
The Constitutional Right to Counsel
“The Sixth Amendment [to the United States Constitution] provides, `In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence [sic].‘” Gideon v. Wainwright, 372 U.S. 335, 339 (1963) (omission in original). Because the right to counsel is “fundamental and essential to a fair trial,” it has been applied to the states through the Fourteenth Amendment. Id. at 342.4 The right to counsel has been described “as one of the most pervasive rights [of a criminal defendant] `as it affects the defendant‘s ability to assert any other rights he may have.‘” In re D.J.M., 259 S.W.3d 533, 535 (Mo. banc 2008) (quoting State v. Dixon, 916 S.W.2d 834, 837 (Mo.App.1995)). “Indeed, [t]he assistance of counsel is often a requisite to the very existence of a fair trial.” Argersinger v. Hamlin, 407 U.S. 25, 31 (1972). As a result, the United States Supreme Court has held that “[n]o person may be imprisoned for any offense ... unless he was represented by counsel at his trial.” Id. at 37.5
Beyond simply ensuring that counsel is appointed to assist every defendant who faces the possibility of imprisonment, a judge also must ensure that the defendant has effective assistance of counsel. Taylor v. State, 262 S.W.3d 231, 249 (Mo. banc 2008) (“The Sixth Amendment affords all citizens facing criminal charges the right to effective assistance of counsel.“); State ex rel. Wolfrum v. Wiesman, 225 S.W.3d 409, 412 (Mo. banc 2007) (“Any defendant that has exercised his right to counsel is guaranteed effective assistance of counsel, and courts should do the utmost to protect the defendant‘s right to adequate and competent representation.“); see also Strickland v. Washington, 466 U.S. 668, 686 (1984).
Effective representation under the Sixth Amendment requires appropriate investigation, preparation and presentation of the client‘s case by counsel. Taylor, 262 S.W.3d at 249.
History of the Office of State Public Defender
When a defendant is found to be indigent in Missouri, the defendant‘s Sixth Amendment right to counsel is usually met by the judge appointing the “Office of State Public Defender“.6 The public defender‘s office, however, currently is facing significant case overload problems. Its lawyers and its staff are overworked.
Following the Gideon decision in 1963,7 Missouri‘s indigent defendants were represented by unpaid court-appointed attorneys. State v. Green, 470 S.W.2d 571, 572 (Mo. banc 1971). But in 1971, this Court held that it would no longer “compel the attorneys of Missouri to discharge alone `a duty which constitutionally is the burden of the State.‘” Id. at 573 (citing State v. Rush, 46 N.J. 399, 217 A.2d 441, 446 (1966)). The Missouri legislature in 1972 enacted legislation establishing a public defender commission and creating a “blended system of local public defender offices and appointed counsel programs.”8
One year later, in 1982, the General Assembly created the Office of State Public Defender under the control of the public defender commission.
Finally, in 1989, in response “to the rising cost of the contract counsel program and the increasing difficulty finding private practitioners willing to take on indigent cases for the fees paid by the State Public Defender System, the system was reorganized....” Public Defender Timeline at 2. The new system gave the director “the authority to hire assistant public defenders, as well as contract with private attorneys, in order to provide defense services `by means of a centrally administered organization.‘” Williamson, 971 S.W.2d at 838 (quoting
During the last two decades, the number of persons sentenced for felonies in Missouri
When the state established the public defender system in the early 1980s, one in 97 Missourians was under correctional control — either in jail or prison12 or on probation or parole. In 2007, by contrast, one in 36 was under correctional control, and 32 percent of those were incarcerated in prison or jail.
During the decade of the 1990s, the population of Missouri grew by 9.3 percent, while the prison population grew by 184 percent.13 Recent data show more than 56,000 individuals on probation; nearly 20,000 on parole (supervision that follows a prison term); more than 10,000 in Missouri jails (many of whom are awaiting trial) and about 30,000 in state prisons.14
The state‘s vast increases in criminal prosecutions have not included commensurately increasing resources for the public defender. Much of Missouri‘s law enforcement and prosecutorial budgets are from local sources, while the public defender system is funded by the state government.15
Current Status of the Office of State Public Defender
Although the General Assembly‘s creation of the public defender‘s office may have lessened the problems that were occurring at the time this Court decided Wolff, the office once again is facing inadequate resources, largely as a result of the increasing caseloads generated by the increasing numbers of persons charged with crimes. In January 2006, an interim committee of the Missouri Senate issued a “Report on the Missouri State Public Defender System.” The committee found that although the public defender‘s office had had no addition to its staff in six years, its caseload had risen by more than 12,000 cases. REPORT OF SENATE INTERIM COMMITTEE ON THE MISSOURI STATE PUBLIC DEFENDER SYSTEM A-1, Jan. 2006. The report cited an assessment of the system stating that “`the probability that public
The commission enacted
The commission also distinguishes among the different types of felony offenses in its calculations by dividing the broad National Advisory Council “felony” category into subcategories of “sex offenses” and “other felony offenses.”18 In addition, the commission‘s standards add categories for probation violation cases,
The commission determined that each lawyer has 2,340 hours per year, or 45 hours per week, available. Yet other factors must be taken into account, which are subtracted from that number: (1) 216
To determine whether a district office has exceeded its caseload standard, the commission determines the number of cases assigned to the office in each category of case types. Each case then is multiplied by the number of hours that a lawyer should need to devote to the case (see Appendix C) and then totaled to determine the total number of hours needed for attorneys to handle the caseload assigned to that district. This is done based on the number of cases in three-month intervals. If the number of hours needed to handle the caseload is greater than the number of available attorney hours, the district is placed on “limited availability” status pursuant to
When that determination is made, the director must file a certification of limited availability with the presiding judge of each circuit court or chief judge of each appellate district affected. This certification must be accompanied by statistical verification that the office has exceeded its maximum-allowable caseload for at least three consecutive months. Notice that an office is at risk of limited availability also must be provided to each presiding or chief judge at least one month before limiting the availability of the district office. After notice is given, the rule requires the district defender and other members of the public defender management personnel to consult with the court and prosecutors to determine which categories of cases are to be excluded from representation when the district is designated as having limited availability. Once a district office is certified as having limited availability, the district defender must file with the court a final list of categories of cases that it no longer will take.
The excessive number of cases to which the public defender‘s offices currently are being assigned calls into question whether any public defender fully is meeting his or her ethical duties of competent and diligent representation in all cases assigned. The cases presented here to this Court show both the constitutional and ethical dilemmas currently facing the Office of State Public Defender and its clients.
The Three Writ Proceedings
Preliminary writs were issued in three cases.27 In two of the cases, the respondent circuit court judges appointed the public defender to represent criminal defendants even though the appointments violated the rules promulgated by the commission. In the third case, the respondent circuit court judge appointed a public defender in his private capacity to represent the criminal defendant even though the appointment violated a Missouri statute. The pertinent facts and procedural histories are set forth in the following sections.
Standard of Review
The extraordinary remedy of a writ of prohibition is available: (1) to prevent the usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted. State ex rel. T.W. v. Ohmer, 133 S.W.3d 41, 43 (Mo. banc 2004).
Prohibition may be used to “undo” acts done in excess of a court‘s authority “as long as some part of the court‘s duties in the matter remain to be performed” and may be used “to restrain further enforcement of orders that are beyond or in excess of a [court‘s] authority....” State ex rel. Robinson v. Franklin, 48 S.W.3d 64, 67 (Mo.App.2001) (citation
State ex rel. Missouri Public Defender Commission, J. Marty Robinson, and Wayne Williams vs. The Honorable Kenneth W. Pratte
Facts and Procedural History
The state charged Steven Roloff with first-degree assault and abuse of a child. Roloff was represented by private counsel from June 2007 through mid-October 2008, at which time respondent Judge Pratte granted private counsel leave to withdraw. As a result, Roloff applied for a public defender. The public defender‘s office for St. Francois County determined that Roloff was ineligible for its services, but Judge Pratte ordered the public defender to enter the case. The public defender then filed a motion to rescind the appointment and requested an evidentiary hearing. At the hearing, the public defender argued that Roloff had the means to obtain counsel and cited
The State Public Defender System shall not represent indigent defendants who have at any time during the pendency of the case retained private counsel. The public defender shall not be available to assume representation where private counsel is allowed by court order to withdraw from representation regardless of the cause for such order of withdrawal unless approved by the director.
The state responded that Roloff was indigent and eligible for public defender services noting that Roloff was not the source of any of the money used to pay for a bond or for his attorney. Though Roloff had his relatives and friends pay $9,000 in attorney‘s fees, the private counsel filed no pre-trial motions except for his motion to withdraw. Judge Pratte overruled the public defender‘s motion to rescind the appointment.
The commission, State Public Defender Director J. Marty Robinson and Wayne Williams, the St. Francois County public defender,28 then filed a petition for a preliminary writ of prohibition in this Court, which granted the preliminary writ.
Analysis
The public defender argues that Judge Pratte exceeded his authority and abused his discretion in appointing the public defender‘s office to represent Roloff because he is ineligible for services under
The General Assembly has delegated certain powers to the commission as stated in
Though the commission and director are granted the authority to promulgate necessary rules, the rules may not conflict with statutes. Pharmflex, Inc. v. Div. of Employment Sec., 964 S.W.2d 825, 829 (Mo.App.1997).
The initial determination of the indigency of a person seeking the services of the public defender is made by the defender.
A rule such as
In determining that Roloff was indigent, Judge Pratte took into account all of the factors provided in the statute. Under Argersinger, trial judges have an obligation to ensure that every indigent person‘s right to counsel is met if the indigent faces the prospect of imprisonment. 407 U.S. at 42. Though the trial
This Court holds that the portion of
State ex rel. Missouri Public Defender Commission, J. Marty Robinson and Kevin O‘Brien vs. The Honorable Gene Hamilton and The Honorable Gary Oxenhandler
Facts and Procedural History in Writ Against Judge Oxenhandler
Jacqueline Pickrell, with counsel from the public defender‘s office, pleaded guilty in April 2002 to the felony of passing bad checks. A month later, she received a suspended imposition of sentence and was placed on five years of probation. A year later, Pickrell was found in violation of her probation and was placed on probation under a suspended execution of a three-year sentence.30 In April 2008, Pickrell‘s probation was suspended and she was taken into custody; she applied for the services of the public defender‘s office for District 13, Boone County. The public defender‘s office filed notice with the court that it was unavailable to represent Pickrell because it had excluded services for alleged probation violations while it was on limited availability status under
The commission maintains caseload standards that identify the maximum caseload each district office can be assigned, pursuant to
Despite the fact that Pickrell was on probation under a suspended execution of sentence, respondent Judge Oxenhandler appointed the public defender‘s office to
Analysis
The public defender contends here that
While the Court notes that the commission‘s rule authorizes the public defender to limit when an office is available to serve indigent defendants, the rule cannot authorize the public defender to decline categories of cases that the statute requires the public defender to represent.
The rule,
In this case, the District 13 public defender‘s office was found to be “of limited availability” under
Facts and Procedural History in Writ Against Judge Hamilton
Mark Lobdell was charged in July 2005 in the Boone County circuit court by information with the class D felony of leaving the scene of an accident. Lobdell was represented by the public defender‘s office and pleaded guilty to the charge. In September 2005, the circuit court suspended execution of a four-year term in prison and sentenced Lobdell to five years of probation. If he were to complete the five-year probation successfully, he would not serve prison time. A violation of probation, however, could result in the execution of his four-year prison sentence.
Lobdell appeared in court, without counsel, in November 2008 after being charged with violating his probation. Lobdell applied for defender services, and District Public Defender Kevin O‘Brien determined that although Lobdell was indigent, his probation violation case was within the category of cases for which the District 13 public defender office was “unavailable” pursuant to
The public defender filed a petition for a writ of prohibition in the court of appeals, which issued a preliminary writ prohibiting Judge Hamilton from appointing O‘Brien to represent Lobdell. This Court granted transfer after opinion by the court of appeals.33
Analysis
Although the state is correct that
Not allowing O‘Brien to be appointed in his private capacity does not effectively make
The Remedy Under the Commission‘s Rule
When current state funding is inadequate to provide the effective representation to all of Missouri‘s indigent defendants that the United States and Missouri constitutions require, the commission‘s rules present an approach to dealing with the situation. The statute assigns the management of the public defender system
The proper remedy for the public defender — under the caseload management portions of the rule — is to certify the office as having “limited availability” once its maximum caseload is exceeded for three consecutive months as prescribed in
- the prosecutors’ agreement to limit the cases in which the state seeks incarceration;
- determining cases or categories of cases in which private attorneys are to be appointed;35
- a determination by the judges not to appoint any counsel in certain cases (which would result in the cases not being available for trial or disposition);36 or
- in the absence of agreement by prosecutors and judge to any resolution, the rule authorizes the public defender to make the office unavailable for any appointments until the caseload falls below the commission‘s standard.
This prevents the rejection of categories of cases, such as occurred here and which the Court expressly rejected in Bonacker and Sullivan. By applying the caseload management provisions of the commission‘s rule, the public defender system is allowed to manage its offices and control its caseload.37
That said, the Court expects that presiding judges, prosecutors and the public defender will work together cooperatively to decide the appropriate measures to take when a public defender office is on “limited availability” status because its caseload exceeds the commission‘s standards as determined
Appointing Lawyers to Fill the Need
The resolution of these writ proceedings leaves remaining a troubling question: can lawyers be conscripted to fulfill the state‘s obligation to provide counsel without being paid for their services? This Court in 1971 announced that it no longer would appoint counsel without pay to meet the state‘s obligation to provide counsel. Green, 470 S.W.2d at 572. But the Court drew back a bit 10 years later in Wolff. That case drew a distinction between the lawyer‘s time and out-of-pocket expenses — the lawyer‘s time can be conscripted but not the lawyer‘s money. Wolff, 617 S.W.2d at 67.
The problem has grown substantially in the 28 years since Wolff was decided. The commission estimates that, to handle the public defender‘s current assigned caseload, 176 additional trial division lawyers and 21.87 additional appellate division lawyers would be needed to meet the standards the commission has set in its rules. ANNUAL REPORT OF THE PUBLIC DEFENDER COMMISSION at 70, 72. There currently are 300 trial division attorneys and 35.5 appellate division attorneys. Id. These numbers tend to show that if the criminal justice system depends on appointing lawyers to work without compensation, the burden of taking such work in many communities may fall disproportionately on the relatively few lawyers who are experienced in handling criminal cases.
Since Wolff, a number of courts in other states have confronted this issue, and some have gone so far as to require the state to increase funding for public defender services, a course that most courts, including this Court, would be reluctant to pursue.39 The appointment of sufficient numbers of private lawyers to meet the need, however, raises the prospect of the state being sued under the federal civil rights law,
Lawyers, however, are members of a profession and have an obligation to perform public service, as this Court has noted in Wolff and other cases. This Court
Lawyers, as members of a public profession, accept the duty to perform public service without compensation. But there are many criminal cases that are sufficiently difficult or complex that an appointment to provide representation without compensation may be oppressive or confiscatory, especially if the burden of providing such representation falls on the relatively few lawyers who appear fully qualified to defend difficult criminal cases. The prerogative of the state, through its courts or otherwise, to dictate how an individual lawyer‘s professional obligation is to be discharged may be limited by principles that apply to regulatory takings and other deprivations of property without due process of law.40
The troubling question of paying lawyers is not presented directly in these writ proceedings, but the issue lurks behind the application of the only coercive remedy the trial judges of this state currently possess — the appointment of counsel who would be required to work without pay. While not a coercive remedy available to the courts, the provision in
The statute, chapter 600, creates the public defender‘s office and gives the commission authority to manage the system. In the commission‘s effort to do so in a manner that allows the attorneys to uphold their ethical duty to provide effective assistance of counsel to their clients, the commission promulgated
The provision in the rule that excludes an otherwise indigent person from representation on the basis of having retained private counsel previously is contrary to the statute and is invalid. This Court‘s preliminary writ in case No. SC89882 against respondent Judge Pratte is quashed.
The provision of the commission rule allowing a public defender office to decline categories of cases is contrary to the statute and is invalid. The preliminary writ in case No. SC89948 against respondent Judge Oxenhandler is quashed.
The trial court has no authority to appoint a full-time public defender in the lawyer‘s “private capacity.” The writ against respondent Judge Hamilton in case No. SC89948 is made permanent.
PRICE, C.J., TEITELMAN, RUSSELL, BRECKENRIDGE and FISCHER, JJ., and SWEENEY, Sr.J., concur.
STITH, J., not participating.
Appendix A
Appendix A: NAC (National Advisory Council) Caseload Standards
| Non-capital homicides | 12 cases per year or 1 new case per month |
| Felonies | 150 cases per year or 12.5 new cases per month |
| Misdemeanors | 400 cases per year or 33 new cases per month |
| Juvenile cases | 200 cases per year or 17 new cases per month |
| Appeals | 25 cases per year or 2 new cases per month |
Appendix B
Appendix B: Missouri Public Defender Modifications to NAC Standards
| Non-capital homicides | 173 hours per case |
| Felonies | 14 hours per case |
| Misdemeanors | 5 hours per case |
| Juvenile cases | 10 hours per case |
| Appeals | 83 hours per case |
Appendix C
Appendix C: Missouri Public Defender Modifications to NAC Standards with Additional Distinctions within the NAC Categories
| Non-capital homicides | 173 hours per case |
| Sex offenses | 31 hours per case |
| Other felony offenses | 14 hours per case |
| Misdemeanors | 5 hours per case |
| Juvenile cases | 10 hours per case |
| Appeals | 83 hours per case |
| Rule 29.15 cases | 62 hours per case |
| Rule 24.035 cases | 21 hours per case |
| Probation violations | 5 hours per case |
Appendix D
Appendix D: Attorney Hours Available for Case Work
| 2,340.0 | Annual available hours per attorney |
| - 320.5 | Average non-case-related tasks [13.7 percent of 2,340] |
| - 216.0 | Average holidays and annual leave |
| - 51.5 | Average attorney sick leave [2.2 percent] |
| ________ | |
| 1,752.0 | Average available hours per attorney or |
| 438.0 | Per attorney per three-month interval |
Notes
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have [sic] a perfect one. He requires the guiding hand of counsel at every stop in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
Argersinger, 407 U.S. at 31 (quoting Powell v. Alabama, 287 U.S. 45, 68-69 (1932)).(1) High standards of indigency and verification should be maintained for the appointment of counsel;
(2) Attorneys should be accorded the right to a hearing as to whether appointment would work any undue hardships;
(3) Non-payment for prior appointed service for a period in excess of 120 days should be grounds for excusing the lawyer from additional appointments;
(4) Attorneys are not obligated to advance personal funds in substantial amounts to cover costs or expenses in the preparation of the defense;
(5) Employment by the government will not excuse appointment to represent an indigent accused;
(6) Payment to attorneys of fees and costs by the Public Defender Commission must be in the order certified and received by the Commission;
(7) The executive and legislative branches should assume their share of the responsibility for a solution of the problem of defending the indigent accused;
(8) The Supreme Court would refuse to hear other than the most extraordinary applications for relief from appointed service.
William A. Knox, The Right to Counsel: Public Defender and Assigned Counsel Representation, Mo. PRAC. SEC. 6.9 (2009) (citing Wolff, 617 S.W.2d at 67-68.).In all criminal cases the defendant shall have the right to appear and defend in person and by counsel. If any person charged with an offense, the conviction of which would probably result in confinement, shall be without counsel upon his first appearance before a judge, it shall be the duty of the court to advise him of his right to counsel, and of the willingness of the court to appoint counsel to represent him if he is unable to employ counsel. Upon a showing of indigency, it shall be the duty of the court to appoint counsel to represent him. If after being informed as to his rights, the defendant requests to proceed without the benefit of counsel, and the court finds that he has intelligently waived his right to have counsel, the court shall have no duty to appoint counsel. If at any stage of the proceedings it appears to the court in which the matter is then pending that because of the gravity of the offense charged and other circumstances affecting the defendant, the failure to appoint counsel may result in injustice to the defendant, the court shall then appoint counsel. Appointed counsel shall be allowed a reasonable time in which to prepare the defense.
Courts have the power to appoint lawyers, and this authority is discussed in the section of this opinion titled Appointing Lawyers to Fill the Need.
In these proceedings, none of the parties represents a specific defendant‘s interest in obtaining appointed counsel, but none of the indigent defendants in these three cases is denied counsel because of this Court‘s resolution of these writ proceedings.
Our primary obligation is to the people to insure the continued operation of the criminal justice system, for without it, the peace of the community cannot be attained as the guilty cannot be convicted nor the innocent be acquitted. As a necessary part of this system the accused is entitled to counsel and, where indigent, counsel must be provided. It is our first obligation to secure to the indigent accused all of his constitutional rights and guarantees.
Wolff, 617 S.W.2d at 66-67. This remains true today. This Court must protect the rights of all criminal defendants to ensure that each one‘s Sixth Amendment right to counsel is met.