Fixing Missouri's broken public defender system

Wednesday, November 7, 2012

Missouri's current public defender system is broken.

It's not broken because there is "constitutional crisis" created by too large a caseload for public defenders. No, an independent audit released earlier this month by the Missouri auditor shattered that myth. It revealed "significant concerns" and "unsupported assumptions" in the way the public defender system measures its caseload.

Prosecutors know from experience that public defenders are qualified attorneys who routinely provide their clients effective legal representation. They are not at risk of committing malpractice because they are overworked. Courts have found that public defenders provide ineffective assistance to their clients less often than paid criminal defense attorneys.

The auditor rightly questioned whether using a productivity standard from 1973 -- and then assuming that standard should be lowered by more than 25 percent -- is a poor baseline in an age in which every attorney's efficiency has skyrocketed due to the availability of cellphones, email, Internet-based legal research, and the other vast technological improvements of the last 40 years.

But the director of the public defender system was immediately quoted as having concluded that any new formula to calculate public defenders' caseload burden will show public defenders should be turning away even more cases.

No doubt it will. When the people responsible for creating the new formula have already decided what it should show, the self-fulfilling prophecy certainly will be realized.

But it doesn't stop there. When the auditor found that the public defender system had failed to take appropriate action to try to collect $70 million in outstanding liens and promissory notes, the director responded within hours of the audit's release that "we have no expectation" of collecting additional money because the system "historically" had only collected on 24 percent of the liens filed. So much for trying.

Police, prosecutors, courts and crime labs face the same funding constraints of public defenders. Comparisons between public defender and prosecutor caseloads show individual prosecutors routinely handle two to three times more cases than public defenders, all without turning away cases and threatening to close their offices.

Simply put, the current public defender system is broken beyond repair because its top brass has surrendered in the face of its challenges. The only suggestion the public defender leadership ever offers is that they need more money. When the state budget is already stretched too thin, Missourians deserve a better solution.

So what is to be done and why do prosecutors care? The rules governing lawyers give prosecutors the special responsibility to be "ministers of justice." We readily accept our unique role in the criminal justice system, where prosecutors safeguard not just the rights of crime victims and the citizenry we represent, but the rights of criminal defendants we prosecute as well. When the public defender system starts turning away clients on a wholesale basis, the entire criminal justice system is undermined.

We need to consider a new model where we reserve state-paid public defenders for the most serious felonies, such as murders and sexual offenses, while contracting representation of misdemeanors and low-level felonies to private counsel who could do the work more efficiently.

Doing so would leave Missouri with a smaller, leaner public defender system comprised of experienced attorneys to handle the most complex cases. And established criminal defense attorneys have indicated they would line up to bid on the lower-level cases, which they say can usually be resolved in far less time than the public defender's outdated protocol suggests.

Privatizing part of our criminal defense system makes sense, especially when the leaders of the public defender system have thrown in the towel on the existing structure.

Eric Zahnd is the prosecuting attorney in Platte County and president of the Missouri Association of Prosecuting Attorneys.

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