Mimesis Law
17 November 2017

Missouri Public Defender Makes A Point About Indigent Defense Funding

August 5, 2016 (Fault Lines) — In a move that’s sure to result in an immediate smile from anyone familiar with the dismal state of indigent defense funding in this county, the head of Missouri’s public defender’s office has appointed the governor to represent an indigent defendant:

Fed up with what he says is the governor’s failure to properly fund his overwhelmed office, the state’s lead public defender ordered Gov. Jay Nixon this week to represent a poor person in Cole County this month.

Michael Barrett said he was using a provision of state law that allows him in extraordinary circumstances to delegate legal representation “to any member of the state bar of Missouri.” He’s starting with the state’s highest-profile lawyer: Nixon.

The letter he sent the governor is really something:

Delegation_of_Representation_Part1Delegation_of_Representation_Part2

Sure enough, Missouri law really does give the director of the office of the state public defender the power to “[d]elegate the legal representation of any person to any member of the state bar of Missouri.” It says he “may” do it and provides no conditions, so it seems Barrett is well within his discretion appointing the governor to the case. I can’t find anything limiting whom he can appoint.

Furthermore, based on the claims Barrett sets forth in the letter, the governor really deserves to be forced to do some indigent defense, as he’s clearly hostile to the right to counsel for indigent defendants. It would be wonderful to teach him a lesson. After all, he vetoed a bill providing relief to the public defense system despite acknowledging its “significant stress,” cut its budget last year by $3.47 million, and restricted its budget by 8.5% this year without doing anything of the sort to his own budget. Forcing him to personally champion a right his actions suggest he abhors just feels right.

Nixon is exactly why we have the types of problems we do with indigent defense all over the county. He’s a politician, so why would he care about taking care of the people least likely to be allowed to vote? There’s no powerful lobby for criminal defendants. Instead, the smart move for a politician is to calm the frightened electorate by convicting more people faster and easier. Defunding indigent defense probably seems like a pretty good way to do that. It scores points for being fiscally conservative and tough on crime at the same time. It’s a winning combination for anyone hoping to appeal to the law and order crowd.

Furthermore, even if there weren’t powerful incentives for the governor to ignore or actively impede effective indigent defense, his bio suggests he still wouldn’t have any special reason to care about it anyway. He was licensed in 1981 and only practiced five years or so before joining the state senate in 1986. He was elected state attorney general in 1992 and apparently spent pretty much the rest of his career in that job. Nothing in his history suggests he’s every cared enough to do the dirty work of representing individuals accused of committing crimes in the past thirty years. He probably hasn’t done much real legal work for individual clients at all.

Sadly, as amusing as the whole thing is, there are a few big problems with it. There’s not just the fact the governor is powerful enough to figure out a way to weasel out of his duties, but also the fact he’s sure to do an abysmal job if some poor indigent defendant actually gets stuck with the governor as his lawyer.

The governor is probably going to manufacture some conflict of interest because of his role as governor or as attorney general previously. If he can’t do that, he’ll find some way to get off the case by claiming his work as governor is so important that to force him to waste his time on trifling matters like the fate of a individual facing the wrath of the government in an unfair system would somehow be injurious to the public safety.

I can’t find authority or make a good argument for those things, but I haven’t really looked that hard. A guy as powerful and important as Nixon is sure to find something that’ll get him out if he just pays enough people enough money to work out an argument plausible enough to convince a judge or make it not worth it to have appointed him. Wait until you see how quickly and generously he funds his own defense against what he’s sure to view as an unfair appointment. It’ll put his hypocrisy on full display.

On top of that, the worst outcome might be that he actually has to represent someone, as he’s sure to suck at it. Not only is he completely unqualified, but he isn’t going to care. What indigent defendants in Missouri don’t need are famous lawyers who are actively hostile to their right to counsel. They don’t need elected government lawyers who haven’t been engaged in the real practice of law for three decades either. A guy who fits both categories, someone like the governor, is a disaster.

If some unlucky indigent defendant really does get the governor as his lawyer, Barrett would be crazy if he didn’t assign a deputy public defender to mentor and supervise him. Unfortunately, that sort of negates the reason for the governor’s appointment in the first place. Also, it would also make things a lot easier for the governor, and half of what makes the situation so enjoyable is the idea that he’d experience the unpleasantness he’s helped create for people in the position in which Barrett is trying to put him.

Even without the help of an assistant public defender, the governor is unlikely to really see first hand what it’s like to be a public defender in Missouri. Sure, it would be funny to try to force him to go through the little hassles of things like setting jail visits, negotiating with unreasonable and incompetent prosecutors with way too much power, and getting stuck in court for no reason other than the fact nobody cares one tiny bit about his schedule, just to name a few. However, he’s unlikely to experience that. If he’s forced to do the case, everyone will bend over backwards to make it easy for him. He’s important, and he’s being made to do something he doesn’t like. He won’t get the treatment real public defenders get.

What Missouri needs is committed, well-trained, and well-paid public defenders with reasonable caseloads. What they got was an amusing way of bringing that to the public’s attention. It’s better than nothing, but only if it actually changes something.

4 Comments on this post.

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  • TMM
    5 August 2016 at 10:32 am - Reply

    Actually, there is a limitation — the rules governing conflict of interests. The Governor is head of the executive branch of government which gives him responsibility over several agencies that might be involved in investigating a case (e.g. Highway Patrol). The governor also has the ability (on request of the local prosecutor) to assign the Attorney General’s Office to assist in any prosecution. I am expecting the Governor’s Office will have the motion to withdraw filed very quickly and that the trial court will grant it.

    p.s. In Missouri, the General Assembly only meets for four months; so the Governor would have been in private practice for the remainder of the year during the six years that he served in the State Senate — albeit two of the years would have been spent running for the U.S. Senate in 1988 and Attorney General in 1992.

  • Picador
    5 August 2016 at 5:12 pm - Reply

    From reading the statute, it looks to me like a grant of the power to delegate handling of a case to any WILLING member of the state bar — i.e., the Director isn’t limited in his ability to delegate cases. I suspect the Courts would read it (in light of any relevant legislative history), not as a grant to the Director of the power to draft unwilling lawyers into service, but instead as simply a grant of discretion as to whom to put in charge of files without restriction as to that lawyer’s experience, etc.

    As much as I would like to believe otherwise, I suspect the Governor is on the right side of this issue. Nice publicity stunt though!

    • shg
      5 August 2016 at 5:32 pm - Reply

      If you capitalize a word, say WILLING, does that let you insert it into a statute where it doesn’t exist? Does that work for all words and all statutes, where capitalizing it lets you stick it in? If so, this could be HUGE!!!

  • Epically Trolling Jay Nixon
    8 August 2016 at 9:43 am - Reply

    […] — 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 […]