Audit focuses on Mo. public defender caseloads

Thursday, October 11, 2012

JEFFERSON CITY, Mo. (AP) -- Missouri Auditor Tom Schweich raised concerns Wednesday about how the state public defender system tracks attorney caseloads.

The state audit concluded the public defender system does not have enough information to accurately determine the staffing and resources needed to manage workloads, while noting that public defenders have seen a significant uptick in caseloads.

The public defender system has maximum caseload standards for offices across Missouri. When those limits are exceeded for three consecutive months, the public defender director can opt to certify that an office has limited availability to accept new cases. Leaders in the public defender system then are supposed to work with prosecutors and judges to reduce demand for public defenders. New cases can be refused for the public defender office if an agreement is not reached.

Schweich said the public defender system has been using a "bad baseline" to determine caseloads. Instead of calculating the actual time spent on different types of cases, the system has used a national standard from 1973, he said. The auditor also questioned whether the calculation of how much work must be completed and the public defenders' capacity to do it allows for a valid comparison.

He said the current method would tend to overstate workloads.

"Now they still may be overworked but because they're not using actual data and because they are using an apples to oranges methodological comparison, it will overstate their workload," Schweich said.

Cat Kelly, the director of the public defender system, said an expert the system consulted indicated Missouri public defenders have been significantly overloaded.

Kelly said officials have started to track time spent on different types of cases and are working to develop a better system for managing caseloads. However, she said there needs to be a method for controlling workloads to ensure public defenders are not assigned too many clients. The state must provide a lawyer to anyone accused of a crime that carries a possible jail or prison sentence if that person can't afford to pay for an attorney.

"When you're drowning, you don't wait for the perfect lifeboat, you grab the log that goes past," Kelly. "We are working on the perfect lifeboat, we hope to have it out and make it usable and seaworthy for the long haul. But right now we are using the current protocol that we have to keep people's heads above water."

Currently, the public defender system has limited cases for 27 trial and four appellate offices. The move affects criminal courts in 90 of Missouri's 114 counties.

Last month Cape Girardeau County Judge Ben Lewis emailed an administrative order to lawyers about implementation of a rule that will cap caseloads locally. Under the rule, which took effect Oct. 1, case deferrals in the 32nd District Defender's office are likely because the local public defender's office could exceed its caseload capacity under the new rule.

Last year public defenders in the 32nd District Defender's office -- made up of Perry, Bollinger, Cape Girardeau, Scott and Mississippi counties -- exceeded the new rule's cap by about 79 percent.

However, Cape Girardeau County Prosecuting Attorney Morley Swingle on Wednesday reiterated what he said last month, echoing the audit report in saying that the way the public defender's office tracks caseloads could lead to an exaggeration of hours worked.

Concern about Missouri's public defender system has percolated for years.

A special state legislative committee studied the issue in 2006. Three years later, lawmakers approved a measure that would have allowed the Public Defender Commission to set maximum caseload standards and establish waiting lists, but the bill was vetoed by Democratic Gov. Jay Nixon.

Missouri prosecutors have questioned whether public defenders face a problem with caseloads. The Missouri Association of Prosecuting Attorneys said Wednesday the state audit "shatters the unsupported claim of a `constitutional caseload crisis"' and that public defenders have refused to represent poor defendants without reliable data.

The prosecutors' group suggested public defenders be reserved for people accused of murder, sexual offenses and other serious felonies with private lawyers contracted to represent those accused of misdemeanors and low-level felonies.

Associated Press writer David A. Lieb contributed to this report.

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