Mimesis Law
10 August 2020

Epically Trolling Jay Nixon

August 8, 2016 (Fault Lines) — The appointment of Missouri Governor Jay Nixon as counsel to an indigent defendant is a publicity stunt, but at least it’s a funny one. As the letter from Michael Barrett, Missouri’s top public defender, states:

As Director of the Public Defender System, I can only hire attorneys when I have the funding to do do. […] To avoid having to close one or more offices, the remaining option is to consider use of Section 600.042.5, which gives the Director of the Public Defender System the authority to “[d]elegate the legal representation of any person to any member of the state bar of Missouri.”

As of yet, I have not utilized this provision because it is my sincere belief that is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis. However, given the extraordinary circumstances that compel me to entertain and and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique problem to address it.

Har de har har. To be fair, Nixon didn’t exactly create the problem, but in two terms as governor, he definitely made the problem worse, and not just through neglect. In 2005, a study commissioned by the Missouri Bar concluded that “the Missouri State Public Defender System is on the verge of collapse,” and that “the crisis is no longer looming, it exists right now.” A follow up study in 2009 concluded that “Missouri‘s public defender system has reached a point where what it provides is often nothing more than the illusion of a lawyer.”

The problem was pretty simple…too many cases and not enough lawyers. MSPD did what it could. Support staff and supposedly “non-essential” staff positions (like social workers) were reduced or eliminated. They also started refusing to take certain categories of cases (like probation violations), and got shot down. They asked the Supreme Court that the time standards for cases involving public defenders to be relaxed, and were rejected.

Things came to a head in 2010, when the Springfield office refused to represent Jared Blacksher on the grounds that they were overloaded. The Blacksher case made its way to the Missouri Supreme Court, who upheld MSPD offices’ right to turn cases away. Every office that was over capacity for three consecutive months “certified” itself as unavailable. The courts (not MSPD) started ordering private attorneys to represent indigent defendants without pay; regardless of whether they had any criminal law experience or, in some cases, whether or not they were still practicing law at all.

As one might imagine, this went over really well with the private bar. Corporate general counsel, law professors and lawyers who are now stay-at-home parents are not really equipped to represent defendants, especially the “challenging” ones. Even if they were, and had the inclination to help out, there were practical difficulties like a lack of malpractice insurance and a place to meet their new clients. One imagines the 28-year-old mother of three in the article linked above trying to decide whether to meet with Joe Meth Head in the living room or the nursery.

Lawyers having more political capital than poor people, this got the Legislature’s attention, and in 2013, they responded by threatening to eliminate the public defender system altogether and replace it with a contract system. This also caused a lot of problems, both for the management and individual attorneys. For example, one young public defender,[1] engaged to be married at the time, asked his fiancé if it wouldn’t be a good idea to postpone the wedding until he was sure he had a job. His fiancé hugged him, very sweetly informed him that marriage was for better or for worse, and that if he ever suggested again that the Missouri Legislature had veto power over the setting of their wedding date, she would break his kneecaps.

MSPD backed off and started accepting all qualified clients, regardless of caseload. The lesson having been learned, the Legislature stayed the execution. The then-MSPD director sent an all-hands email the morning after the 2013 legislative session ended that said, “Everybody breathe.” Maybe they should have called the Legislature’s bluff. That would have blown up the system, and thrown all their employees out of work, but something better might have been built out of the rubble. To be fair, I can say that now with the benefit of hindsight; in 2013, I was mostly concerned with keeping my job and my kneecaps intact.

MSPD went back to the drawing board. One of the criticisms was that the calculation of caseloads was based on unverified, outdated time standards promulgated in 1973. To establish a new baseline, another study was commissioned to establish exactly how much time was needed for an attorney to handle particular types of cases. Part of this involved lawyers keeping track of their hours, which led to considerable whining from lawyers[2] who weren’t used to entering in a computer EVERY SINGLE TIME they picked up a particular case file.

Those whiny ones were proved wrong when the Legislature, looking at the new data, appropriated an additional $3.4 million to the MSPD. Nixon withheld it, and MSPD sued to get it released. The stunt of appointing Nixon seems to be an effort to generate favorable publicity while that’s going on.

And make no mistake, it’s a stunt, though a savvy one. Barrett didn’t appoint, for example, any of the legislators that sit on the budget committee. Also, Nixon is out of the governor’s mansion at the end of the year, and the Missouri Legislature only meets from January to May; so (hopefully) there isn’t much Nixon can do to retaliate except grin and bear it.

MSPD has played Charlie Brown to the Legislature’s and/or Governor’s Lucy for 15 years, before Nixon was there, and no doubt continuing when the next guy takes over. This epic troll has probably generated more favorable publicity then anything they’ve done before. While some commentators[3] are pessimistic, maybe this time Charlie Brown will split the uprights.

[1] Me.

[2] Me.

[3] Me.

3 Comments on this post.

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  • Scott Jacobs
    8 August 2016 at 9:37 am - Reply

    His fiancé hugged him, very sweetly informed him that marriage was for better or for worse, and that if he ever suggested again that the Missouri Legislature had veto power over the setting of their wedding date, she would break his kneecaps.

    I like her already…

  • CLS
    8 August 2016 at 3:40 pm - Reply

    Noel:

    While it may be a stunt, and one designed to provide a symbolic “middle finger” to the Governor for all he’s done to undermine indigent defense, do you think stuff like this and Derwyn Bunton’s office in New Orleans refusing to take cases will finally spark enough discourse about adequately funding indigent defense?

    If enough jurisdictions “act out,” would that feasibly make someone decide to take action in your eyes?

    Regardless, great work.

    • Noel Erinjeri
      9 August 2016 at 12:19 am - Reply

      “If enough jurisdictions “act out,” would that feasibly make someone decide to take action in your eyes?”

      Depends on the form of the acting out. The lawsuits in New Orleans and Missouri have a chance of accomplishing something, like the finding of a Sixth Amendment violation. The Nixon thing is good for a laugh, but the benefits are strictly intangible.

      In places that use court appointed attorneys instead of public defenders, I’m rapidly becoming convinced that the only way to change anything is for attorneys to refuse to take cases until the courts are willing to provide reasonable compensation.