Supreme Court weighs earlier attorneys for defendants

A raft of cases before the Missouri Supreme Court could determine just how early in a criminal case a defendant is entitled to a lawyer.

The court on Feb. 6 heard five cases concerning four unrelated defendants who made their initial appearances in court before a lawyer entered his or her appearance. It’s a case that pits a bedrock principle of criminal law against the practical realities of making it happen.

Matthew Mueller of MGM Law in St. Louis, who represented all four defendants on appeal, argued that defendants face serious matters at those hearings, such as entering an initial plea or having their bond conditions set. Those arraignments also give the defendant a short deadline to claim certain rights, such as a change of judge or of venue, which are waived after 10 days.

“It can’t be said that the defendant intelligently entered his plea because there was no counsel to advise him of his possible defenses,” Mueller said.

The cases involve Robert Woolery, who was convicted on drug charges in Pettis County; Lorandis Phillips, who was convicted of robbery and assault charges in Scott County; James Logan, who was found to have threatened a restaurant employee in Boone County and to have committed a separate assault; and Tiffany Mills, who was convicted in Jackson County of assaulting a woman she thought was sleeping with her boyfriend.

All but Phillips were eventually represented by the public defender, but Mueller said his clients spent time in jail before those lawyers came into the case.

The judges, however, continually pressed Mueller to show how the defendants were prejudiced. It was not clear that any of them, for instance, would have asked for a change of judge even if they’d had a lawyer at the outset.

“The degree of prejudice can never be known,” Mueller said.

Nonetheless, it was clear that the court recognized the potential pitfalls for defendants who lacked legal counsel. Chief Justice Mary R. Russell noted that such defendants wouldn’t know to question the conditions of their bond or to file a writ challenging their lack of representation.

“Practically speaking, how does an unrepresented defendant know they have the right to that remedy?” she asked.

“I’m not sure an unrepresented defendant would know the intricacies of Rule 33,” Kristen S. Johnson, one of several assistant attorneys general defending the convictions, responded. But, she added, those issues could be addressed once the defendant had a lawyer.

In an amicus brief, the Missouri and national chapters of the Association of Criminal Defense Lawyers argued that, while a long line of Missouri precedents have held that arraignment is not a critical stage, those cases date to a time when the deadline to seek a change of judge or of venue was much longer. However, court rules passed in the 1990s required such requests to be made within 10 days of arraignment.

The criminal defense associations noted that people who appear in court without an attorney “are almost universally not rich,” lack support from family and friends, have some mental health problems and know little about the court system.

“In short, they are the people most likely to say or do the wrong thing, and those most vulnerable to abuse, neglect, or honest mistakes by the system that can have serious consequences,” the groups wrote. “They are the people perhaps most in need of an attorney at this critical stage.”

In a brief filed in all five cases, Mary Fox, the director of the State Public Defender System, noted some of the practical difficulties in providing counsel at arraignment hearings, at least through the defender system. Under current law, the defender system must determine whether the defendant is indigent and make sure the attorney has no conflicts of interest before entering an appearance.

“The eligibility determination process is a multi-step process that must be conducted in a thorough manner to ensure that the eligible applicant receives counsel that is conflict-free and able to provide effective assistance of counsel,” Fox wrote.

Because of the delays inherent in appointing public defenders, Mueller suggested that the court create a system for judges to appoint private lawyers to perform that role. But that solution raised its own issues, such as how to prevent those private lawyers from being stuck with the case permanently — or how much good they could do on a case they knew nothing about.

“You couldn’t effectively represent the person if you hadn’t met them before that day,” said Craig A. Johnston, an assistant prosecuting attorney in Boone County.

The cases are State v. Woolery, SC100170; State v. Phillips, SC100247; State v. Logan, SC100265 and SC100325; and State v. Mills, SC100303.