Mimesis Law
15 August 2020

Missouri Governor Jay Nixon, Meet The Sixth Amendment

August 5, 2016 (Fault Lines) – Constitutional rights are pretty inconvenient, but the people sure do love them. If America woke up one morning without its freedom of speech, people would revolt in the streets. Same with guns, or the police searching people and their homes at will, or all the other things protected by the Constitution.

But if a poor person wakes up without the right to counsel, what do you care? If you aren’t poor and you aren’t charged with a crime, no big deal, right? Apparently, Jay Nixon, the governor of Missouri is not too worried about those poor people and their problems. So the Director of the Missouri State Public Defender System, Michael Barrett, decided to force him to care.

Missouri’s public defender system, like most, is in crisis mode. Too many cases, not enough lawyers. Money is the only fix. Without the money to hire more lawyers, the problem just keeps getting bigger. Unless people stop getting arrested and prosecuted. And there aren’t a lot of reports out there that the police and prosecutors are working on shoestring budgets.

Public defenders in Missouri started the battle with a lawsuit against the governor. To get out of crisis mode, the office determined it needed another $4.5 million. It got $1 million. Which is still over $20 million less than it actually needs to fulfill its duty. Compare that to the prisons.

“If we continue as we’re going, the right to counsel dissipates in Missouri. If just you look at the Department of Corrections budget, it has increased by $60 million under the Nixon administration,” says Barrett.

$60 million increase for the prisons. But Missouri is $20 million short for the lawyers trying to keep people out of those prisons. That more or less sums up society’s priorities when it comes to criminal justice.

If you know anything about suing the state, it’s sort of a ceremonial attack. While it’s always hard to beat the government, the civil system is definitely set up to make lawsuits like this impossible. So Michael Barrett decided to make things a little more personal.

A Missouri law gives the director of the State Public Defender office the power to appoint any member of the Missouri bar to represent a poor person charged with a crime. Governor Jay Nixon is a member of the Missouri bar. So Barrett exercised his power to appoint the governor to a case.

Therefore, pursuant to Section 600.042.5 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defense, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case.

Is this a stunt? Maybe. Scott Greenfield thinks it’s a gimmick and Governor Nixon won’t actually represent his newest client. He may be right. There are plenty of people who would jump at the chance to help the governor out of a jam. Even though it’s pretty sad his duty as a lawyer, triggered by his failure to do his duty as a governor, is considered a jam.

Barrett points out that these budget cuts are not some government fat that can be cut with little thought. This is for real. It is important. More important than the luxuries the government has no problem funding.

“Before you fund parks, before you fund trail expansion, before you fund a farmer’s market in Jefferson City, you have to meet your obligations,” says Barrett. “Each lawyer in the system has anywhere between 150-225 cases. The only way to handle them is essentially to process the cases. Each client is not receiving an investigation of their case, meeting with the lawyer, getting discovery done, motion practice. That’s what our attorneys have an ethical obligation to do for each and every client, but because there’s too many clients and not enough lawyers, there’s just not enough time in the day to represent each client ethically.”

Barrett can’t bring this home to the public. Most people aren’t going to end up needed a public defender, so who cares? But those that do need a lawyer will get a real slap in the face when the government shows up with an arrest warrant. Because everybody is poor compared to the government. They don’t run out of money. You? You’re going to find out that a good defense to serious criminal charges can cost more than the average American makes in a year.

Instead, Barrett tried to bring the problem home to the next best person; the guy who is supposed to be representing the public. There aren’t a lot of details on the case assigned to Nixon, but let’s consider it hypothetically.

Maybe Nixon has to go see his client in a local jail. Maybe he has to spend all day waiting for a jail guard to let him in, or make him an appointment, or even acknowledge his presence. Then he gets to sit in a little room without his cell phone and listen to a desperate man tell a sad story about a tragic life.

When all that is done, some 25-year old prosecutor will offer his client decades in prison for a crime of poverty. Nixon can sit in court for hours waiting for his case to get called, or cancelled, or ignored. And that is just one case, instead of the hundreds a real public defender is handling.

Yeah, yeah, yeah. I get it. He is the governor. Nixon probably won’t get the same shitty treatment the rest of the world gets from the criminal justice system. But it’s a nice thought.

When it’s all said and done, Barrett’s move is more than a gimmick. It’s a message. Like Ice Cube said:

Either they don’t know, don’t show, or don’t care about what’s going on in the hood.

The public is never going to care. But maybe Governor Nixon might start to care. Just a little bit. And that’s all it would take to make the Sixth Amendment right to counsel a real constitutional right.

9 Comments on this post.

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  • Gavin Peters
    5 August 2016 at 9:36 am - Reply

    Gov. Nixon has responded that the appointment is not legal, since it was done without his consent. That seems to fly in the face of the statute, the text of which was quoted above. I wonder if he considers his bar association dues legal?

    • shg
      5 August 2016 at 9:53 am - Reply

      Nixon’s response:

      “It is well established that the public defender does not have the legal authority to appoint private counsel,” said Nixon spokesman Scott Holste.

      Usually, “well established” is followed by some small degree of evidence to demonstrate that it’s “well-established.” But maybe that, too, doesn’t apply to governors.

      • Greg Prickett
        5 August 2016 at 1:57 pm - Reply

        I wonder what would happen to a normal lawyer who blew off an appointment and disregarded their client? Can anyone say “Bar Disciplinary Committee?”

        Not that I’m suggesting that the good governor is violating his ethical obligations or such, seeing as how he told us that he doesn’t have to, and then provided the authority on which that statement was based.

        Oh, wait….

    • TMM
      5 August 2016 at 2:26 pm - Reply

      Governor Nixon has the better of the textual argument. Subsection 5(1) authorizes that the Director can “delegate” the representation of an indigent offender to a private attorney. Elsewhere in the same statute, Subsection 1(1), the Director is authorized to contract with private attorneys.

      In other parts of the public defender statutes, there are provisions governing offices that need assistance for high case loads (Section 600.062-600.064). Those provisions require the public defender system to file a motion with the court and permits the court to appoint a private attorney.

      • Greg Prickett
        5 August 2016 at 3:27 pm - Reply

        @TMM, that’s not what the statute says, it makes absolutely no reference to a “private” attorney. The relevant section states: “Delegate the legal representation of any person to any member of the state bar of Missouri…” Mo. R.S. 600.42.5.(1).

        Gov. Nixon is a “member of the state bar of Missouri” and therefore eligible for appointment. It is well established that the state may compel attorneys to represent indigent defendants, see Williamson v. Vardeman, 674 F.2d 1211, (8th Cir. 1982).

        The other parts of the statute do not limit the Director’s ability to make such appointments, they merely authorize another way to provide legal representation to the indigent.

        • TMM
          5 August 2016 at 4:41 pm - Reply

          Since Missouri courts have never interpreted this language, I respectfully disagree about how the courts will read these clauses together. The rest of the provisions would be surplusage if the delegate in subsection 5(4) means the same thing as appoint.

          • Greg Prickett
            5 August 2016 at 8:07 pm -

            What are you talking about? There is no RS 600.42.5(4), there is only (1) and (2). The first allows delegation for representation, the second allows determination of indigency. If you are going to cite to a law, please do so where we can actually find it. Otherwise there is no way for anyone to intelligently answer your statement.

          • TMM
            8 August 2016 at 10:18 am -

            Greg, Haven’t you ever had a typo?

  • California Is Losing Its Grip On Criminal Justice
    1 March 2017 at 4:34 pm - Reply

    […] must pay for; year after year, across the nation, states as ideologically diverse as Louisiana, Missouri and New Mexico find ways to fail to meet their constitutional obligations or significantly scale […]