Commentary: Parsing prosecutor’s public defender claims

Eric Zahnd, president of the Missouri Association of Prosecuting Attorneys, has declared there is no Missouri State Public Defender caseload problem, just an imaginary crisis created by the leadership of the public defender system [“Much public defender work should be contracted out,” Oct. 29].  As proof, he points to the latest audit of the public defender system.  The audit he trumpets, however, does not support his conclusions.

The caseload challenges faced by Missouri’s public defenders have been studied and well-documented by a variety of organizations: in 2005, a Missouri Bar Task Force and an outside consultant retained by The Missouri Bar; in 2006, the Missouri Senate Interim Committee; and, most recently, Dean Norman Lefstein, the former chair of the ABA’s Criminal Justice Section and one of the nation’s leading experts on public defender caseload issues.

Prosecutorial table-pounding does not change the facts found by each and every one of these: Missouri’s public defender system has too many cases and too few lawyers to meet its constitutional obligations. Their findings are in fact supported by the findings of the audit, which states that “increases in the MSPD’s growth in caseload has outpaced its growth in staffing resources” and that over the past 20 years, public defender caseload has increased by 70 percent as compared to staffing, which has trailed at a 58 percent increase.

Contrary to “throwing in the towel,” as Mr. Zahnd accuses, the system’s leadership has responded to the growing caseload by eliminating its Alternative Sentencing program and closing specialized juvenile offices in order to maximize lawyer positions. We have redistributed staff, caseload and geographic areas of responsibility where possible and coordinated with any and all volunteer lawyer programs in efforts to address the problem.  But we have reached the point of rearranging deck chairs on the Titanic.

Mr. Zahnd’s solution is to contract out all the misdemeanor cases to the private bar. MSPD doesn’t necessarily disagree with that approach, but that, like other solutions, would require funds not currently available. Until a longer-term fix is developed, MSPD has no choice but to limit the number of cases coming in the doors to what its lawyers can constitutionally and ethically handle.

The audit does not dispute that Missouri’s public defenders are overloaded and in need of relief. The questions raised by the audit instead have to do with how MSPD calculates when to say, “this office can take this many cases and no more” and whether MSPD should have utilized a national defender caseload standard adopted by the Department of Justice in 1973 as part of its “caseload protocol.” MSPD chose this standard not because it was adopted in 1973, but because it was still being recommended by the ABA in 2006 and because a 2005 caseload study of the Maryland Public Defender by the National Center for State Courts resulted in a very similar standard. Turns out that the time savings from computers and cellphones cited by Mr. Zahnd have been more than offset by complex digital and computer evidence, DNA, forensics and requirements that defenders need to be versed not only in criminal law, but also in immigration consequences of convictions. In fact, the Washington State Supreme Court just a few months ago adopted these same standards for its public defenders. If MSPD leadership is completely off the reservation in determining where to draw the line on caseload, we are at least in good company.

Still, MSPD does agree that a caseload standard specific to Missouri would be preferable, and we are in the process of developing that standard. Mr. Zahnd takes umbrage with my statement that the new standard is likely to have Missouri public defenders taking fewer cases rather than more. Let me be clear: That was not MY opinion but that of Dean Lefstein, the nation’s leading expert on public defender caseload issues. It was his assessment that we are turning away too few cases, not too many, and it was because of this assessment that we chose to continue using our current “line” to turn away excess cases even as we undertake to refine our process.

Mr. Zahnd also lambasts MSPD for failing to collect $70 million in old debts from indigent clients. It would be wonderful if Missouri’s indigent defendants and inmates had $70 million in their pockets or bank accounts, available for the asking, but here are the facts: MSPD is statutorily required to assess liens against its clients. We collect close to $1.6 million per year as a result. About 60 percent of that comes from MSPD intercepting tax refunds and lottery winnings due clients with outstanding liens. The remainder is collected by the courts as part of court costs. To go after the remaining “$70 million,” MSPD would have to institute close to 390,000 separate collection efforts on liens averaging $181 owed — not a terribly cost-effective proposition.

Interestingly, by statute, these liens are enforceable by the prosecuting attorneys of the state. Several years ago, Mr. Zahnd and some of his colleagues volunteered to begin enforcing PD liens if, and only if, MSPD would give prosecutors a percentage of the collections or support a surcharge payable to the prosecutors — because the increase in workload could not be accommodated without an attendant increase in resources.  Funny — that sounds just like what public defenders are saying.

Missouri’s public defenders are hardworking, talented lawyers doing their best to provide effective representation to their clients, but their capacity is not unlimited and the caseload has grown beyond their ability to keep up. This reality has been recognized by The Missouri Bar, the Supreme Court, the state Legislature, the governor and, yes, even the state auditor. It has been recognized by everyone who has looked at it, except the prosecuting attorney’s association. Ours is designed to be an adversarial system, with prosecutors and defense counsel on opposite sides. It is unfortunate that this adversarial approach to justice appears to have spilled beyond the courtroom doors.

Cat Kelly is director of the Missouri State Public Defender System.