Public defenders sued for use of waiting lists

Scott Lauck//February 27, 2020

A new round of litigation is seeking to address the inadequacies of Missouri’s public defender system.

A class-action lawsuit has been filed in Cole County Circuit Court, alleging that the use of public defender “waiting lists” is unconstitutional. The suit seeks an injunction against the wait lists, as well as a declaration that the state provide competent counsel to all indigent defendants on such lists or else dismiss all charges against them.

“Reliance on waiting lists constitutes outright denial of counsel to those most vulnerable within the criminal legal system,” Amy Breihan of the Roderick & Solange MacArthur Justice Center said in a news release announcing the suit on Feb. 27. “Without intervention by the court, public defenders and judges will continue to endorse this practice that destroys lives, communities and any semblance of integrity in criminal proceedings across the state.”

Also bringing the suit are the American Civil Liberties Union, the ACLU of Missouri and the law firm of Orrick, Herrington & Sutcliffe.

The suit names the State of Missouri, the Missouri Public Defender Commission, the recently appointed system Director Mary Fox and judges in counties throughout the state alleged to have kept the eight named plaintiffs incarcerated while they awaited an attorney. The public defender system and the Missouri Attorney General’s Office didn’t immediately respond to requests for comment.

The Missouri State Public Defender System has argued for years that it cannot keep up with its caseload while ensuring adequate representation to all defendants its attorneys are assigned to represent. In some counties, district offices have placed indigent defendants on a waiting list until an attorney becomes available.

The lawsuit alleges that as of Jan. 7, more than 4,600 individuals, including about 600 in pretrial detention, were on a wait list. Three defendants have waited in pretrial detention for more than two years, the suit alleges, and another 44 have waited for more than a year.

The ACLU and the other groups had previously filed suit in 2017 alleging “multiple and longstanding systemic deficiencies” in public defender services. After other state entities were dismissed, the groups reached a tentative settlement with the public defender system that would have set limits on defender caseloads.

But in January, U.S. District Judge Nanette K. Laughrey refused to approve the proposed consent judgment, saying it was “not the vehicle” to solve the problem. Among other things, Laughrey said the settlement couldn’t be enforced effectively and would have applied only to its named defendants, as she earlier had denied class-action certification.

The case is David et al. v. State of Missouri et al. A case number wasn’t immediately available.