Nearly 1,000 criminal defendants in Jackson County have been told they must wait indefinitely before they may be assigned a public defender, the Jackson County district defender testified May 30 during a conference aimed at addressing defender caseloads.
Ruth Petsch, who heads the public defender’s office in Jackson County, acknowledged in sometimes tearful testimony during the daylong conference that some of the 960 people on the office’s so-called “postponement” list are in custody. Those people remain in limbo — lacking legal representation to assist them in getting out of jail and in the early aspects of their cases, she said.
In her testimony, Petsch maintained that the internal “postponement list” created by her office was not actually a “waitlist” for defender services because the clients on the internal list have been told they will eventually get legal services. Under state law, only presiding judges have authority to establish a waitlist.
Petsch did not say how many of the people on the internal list remain jailed. But citing caselaw established in 2012, Petsch contended that her office is required to serve clients in the order in which they applied for defender representation, rather than to prioritize cases involving jailed clients.
That precedent, State ex rel. Missouri Public Defender Commission v. Waters, bars defenders from sidestepping some clients to serve others, even if the others are jailed, she testified. Her office is asking Presiding Judge David M. Byrn to consider such a court-sanctioned waitlist that would allow the office to prioritize such cases, among other remedies.
Petsch was the first of a group of witnesses during the conference to argue that attorneys in her office have more cases than they can ethically handle.
Since late 2017, she has attempted multiple times to hold such a conference, which is required by a state law approved by lawmakers in 2013, Section 600.063.
Those efforts were rebuffed by former Presiding Judge John Torrence, who instead blamed the caseloads on the office’s own policies. Torrence eventually accepted a conference, but he denied Petsch’s request that it be held on the record. Petsch appealed, and in June 2018, the Western District Court of Appeals reversed Torrence’s decision, saying that an on-the-record conference was required to create a record for potential appeal.
Byrn now is overseeing the case because he is the current presiding judge.
Petsch told Byrn that the Jackson County Public Defender’s office implemented its postponement list in 2017 following the attorney-discipline case of Karl Hinkebein, a Columbia public defender whose case is believed to be the first disciplinary action tied to defenders’ caseloads to reach the Supreme Court.
When pressed by Byrn to provide the authority for the creation of the list, Petsch acknowledged that under another section of the same 2013 law, Section 600.062, her office is prohibited from turning away cases.
She said her attorneys also are required to meet ethical obligations.
“It goes to the Rules of Professional Conduct,” which require attorneys to turn away cases they are unable to adequately handle, she said.
Since her office implemented the postponement list, 364 people who qualified for a defender later found money to hire their own attorneys, Petsch said.
Petsch testified for nearly three hours, breaking down and crying at least twice — once in response to Byrn’s assertion that she had not done enough in a timely manner to obtain a hearing, and again while she recounted the strain under which she said attorneys in her office are working.
She pushed back on the first point, saying her husband was hospitalized for nearly two months around the time the Western District remanded the case.
“To me, that’s a little unfair,” she said, listing previous attempts to set up a conference. “I’m very upset you’d say I’m acting in bad faith.”
When Byrn suggested someone else in her office could have met with the court, Petsch noted that her office now is represented by counsel in the matter and that would have amounted to ex parte communication.
Petsch said the delay also in part was due to hopes of a resolution in a federal civil case against the Missouri Public Defender System, brought by the ACLU of Missouri, which recently reached a settlement that has yet to be approved by a judge. Among other things, the settlement calls for a caseload standard based on a 2,080-hour work-year.
In regards to the stress and burnout her attorneys face, she said some have come to her needing immediate leave for mental health issues and have expressed they have considered harming themselves.
“They come here with a goal to help the people who no one else is helping,” she said. “When they can’t, it’s crushing.”
Byrn questioned Petsch about her office’s 60 percent decrease in cases during the past 10 years, and how that squared with maintaining the same number of staff — 35 attorneys. He also compared Jackson County to St. Louis County, which handles more cases but has only about 20 staff attorneys.
Petsch said Jackson County handles a higher number of murder cases and other high-level felonies that generally require more time and attention, while St. Louis County tends to handle more probation-violation cases.
The defender’s office’s attorney, John C. Aisenbrey of Stinson, said the office is seeking either a waitlist or appointment of private counsel to handle cases.
Byrn probed for other potential options for relief. Petsch discussed how dockets could be scheduled in a better manner for public defenders, as well as having judges address their cases at a fixed time, rather than in a first-come, first-served approach on dockets.
Byrn asked for Petsch’s thoughts on vertical representation, which is the office’s practice of assigning defenders to clients for the entire length of the case; scheduling one public defender to handle a number of public defender clients in one docket; and an early-disposition docket, which the 16th Circuit previously used and the court has previously supported because it can resolve certain lower-level felonies quicker.
Petsch said docket attorneys and the early-disposition docket both present problems when it comes to attorneys’ ethical obligations.
She defended the office’s use of vertical representation, saying that it helps to instill clients’ trust when they work with the same attorneys through each stage of their cases. She maintained that it allows for better representation of clients.
Also testifying on March 30 was Walter Stokely, the office’s juvenile coordinator who has worked in the office for two years.
Stokely testified that he tried eight cases as first chair in the past year.
He said his practice is “more or less putting out whatever fire is burning at the time” on his trial schedule, rather than having enough time to dedicate himself to reviewing discovery and investigative work on a case.
It’s not clear when Byrn will rule on the matter.
The case is In Re: Area 16 Public Defender Office, 1716-MC14505.