Gideon Alert: Missouri prosecutors call for shutting down the state public defender office

BY David Carroll on Monday, August 16, 2010 at 9:46 AM

Our American system of justice presumes that law enforcement officials are human, and thus fallible.  Despite the overall dedication and professionalism of the hundreds of thousands of citizens employed in the police and prosecution functions in this country, it is simply impossible to always arrest and prosecute the right defendant for the right crime in every single instance.  If errorless law enforcement existed, there would be no need for a jury of one’s peers to weigh the evidence in a case before an impartial judge.

Because American jurisprudence is based on an adversarial court process, competent defense lawyers are necessary to scrutinize and challenge the arresting officers’ tactics, the police investigation, the lawfulness of any searches and seizures, the credibility of the evidence, and the district attorney’s theory of the case to improve the overall quality and effectiveness of law enforcement itself.  Arguably, it is because of a strong adversarial process that the United States is in the forefront of cutting edge public safety technologies – like DNA evidence – that help to exonerate the innocent while convicting the guilty

The notion that public defense providers are a critical component of a functioning justice system appears lost on a couple of Missouri prosecutors who want to essentially rig the game to their advantage by having policy-makers close up shop at the Missouri State Public Defender altogether, as reported in the August 15th, 2010 Springfield News-Leader.  This new appeal comes on the heels of a different prosecutor calling the Missouri caseload crisis a “contrivance,” as reported in the July 29, 2010 Gideon Alert.

The reason the prosecutors give for wanting the Missouri state public defender shut down is their claim that the office “refuses to do what it was mandated to do: represent indigent defendants,” despite having $39 million in state-supported funding.  This argument is specious at best.  Public defenders are not simply to represent indigent defendants, but to represent them adequately.  If $39 million is not enough to allow public defenders to have manageable caseloads and the time to provide adequate representation, then public defenders are ethically required to refuse new cases as they are doing throughout Missouri.

Masked in the guise of fiscal responsibility, the prosecutors offer four delivery service alternatives to replace the state public defender office that would significantly lower the quality of right to counsel services in Missouri.  Two alternatives are essentially different incarnations of low-bid, flat fee contracting.  Flat fee contracting is oriented solely toward cost reduction, in derogation of ethical and constitutional mandates governing the scope and quality of representation.   Fixed annual contract rates for an unlimited number of cases create a conflict of interest between attorney and client, in violation of well-settled ethical proscriptions compiled in the Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, written by NLADA and adopted by the American Bar Association (ABA) in 1985.  Guideline III-13, entitled "Conflicts of Interest," prohibits contracts under which payment of expenses for necessary services such as investigations, expert witnesses, and transcripts would "decrease the Contractor's income or compensation to attorneys or other personnel," because this situation creates a conflict of interest between attorney and client.  For attorneys wanting to practice criminal law in a flat fee jurisdictions, refusal to take every case for a single flat fee effectively precludes them from practicing their chosen vocation in the area where they prefer to live.  For these reasons, all national standards, as summarized in the eighth of the ABA’s Ten Principles of a Public Defense Delivery System, direct that: "Contracts with private attorneys for public defense services should never be let primarily on the basis of cost; they should specify performance requirements and the anticipated workload, provide an overflow or funding mechanism for excess, unusual or complex cases, and separately fund expert, investigative and other litigation support services.”

The other two alternatives offered by the prosecutors are also variations on a similar theme – either rely on volunteer attorneys or conscript new attorneys for five years to handle all indigent defense cases.  If volunteerism and conscription is so good for the defense side of the aisle, would not the same fiscal theories apply for prosecution as well?  Would Missouri prosecutors be willing to take their own advice and have all prosecutions handled by people not being paid or forced into services after law school?  The answer would, of course, be a resounding “no” for the simple reason that just because someone has a bar card does not mean they are qualified to either prosecute or defend a person in a criminal action.  After all, would anyone feel confident going to a dermatologist for open heart surgery simply because both are doctors?