KRCG 13 Investigates: Some rural judges are resistant to state public defender problems

Judge Doug Gaston sits on the bench in Texas County (Ashley Zavala/KRCG).

Public defenders in Missouri have spent the last couple of years explaining their caseload problems to judges across the state. Some judges have been receptive to the issue, while others have been resistant.

When a person is charged with a crime, and he or she can't afford an attorney, the state is supposed to provide one. Missouri's public defender agency contends funding and turnover has made it almost impossible to effectively uphold this constitutional right.

While larger city judges in Kansas City, St. Louis, and Columbia have acknowledged the problem, KRCG 13 found some rural judges meet public defender caseloads with impatience, or a refusal to recognize the problem.

Turnover turmoil

Matt Crowell has been the Area 25 District Defender for three years. His area covers two judicial circuits including the 25th ( Phelps, Pulaski, Maries, and Texas Counties) and parts of the 42nd (Crawford and Dent Counties).

"We've always had a caseload issue," Crowell said. "Within the system we have a problem and within my office we have a bigger problem being in a rural jurisdiction and covering a large area," Crowell said.

After the Missouri Supreme Court put a public defender on probation for neglecting clients as a result of a high caseload, Crowell said his office has tried to implement wait lists and talk to judges about the issue.

"We've seen push back from our local judges," Crowell said.

Crowell said his office has 14 attorneys, 10 of which he has seen turnover in the last two years. He said his office is comprised mostly of lawyers fresh out of law school with fewer than two years of experience in the field. He said he has the youngest staff in the state.

"The most commonly cited reason why people leave is due to the judges," Crowell told KRCG13. "The way judges treat the attorneys here is unfair. I don't know the judges purposely treat them badly, I'm not saying that they're treating them differently than anybody else, but when you're dealing with young, fresh out of law school attorneys, you need to push them a little less," he said. "They don't feel like the courts around here respect what they're doing."

The National Advisory Committee on Criminal justice (N.A.C.) suggests each lawyer should have no more than 150 felony cases or 400 misdemeanor cases per year. Crowell said his attorneys average about 150 cases at a time.

"[That] is in excess of the N.A.C. Standard and the Rubin Brown standard, which these courts don't want to give any weight to," he said.

According to the Missouri State Public Defender Commission's most recent annual report, the Rolla area office had the fifth most cases behind Springfield, St. Louis City, St. Louis County, and Kansas City. The office was assigned 3,762 cases in fiscal year 2017.

The director of the Missouri State Public Defender's Office, Michael Barrett, echoed Crowell. "These judges consistently demonstrate a knowing disregard for a lawyers ethical concerns and have been known to verbally chastise our lawyers," Barrett said. "I have routinely been confronted with attorneys who threaten to quit unless they are transferred to another jurisdiction."

Crowell said most of the judges aren't that bad to deal with, he said it's little things that accumulate over time.

"Texas County is the extreme," Crowell said. "It's where we had some of the most problems in the judiciary." Crowell cites high bond amounts, and a high-tempered judge for some of the issues in his area's southern-most county.

Both Barrett and Crowell said young attorneys have been berated by Judge Doug Gaston.

"We can't be as accommodating as we'd like," Crowell said. "In Texas County, it results in threats, subtle threats of contempt, which over time, it makes the attorneys feel like they fear for their freedom, they fear threats against their bar license."

Crowell said late last year, Judge Gaston had an indigent suspect in jail on a $100,000 bond on charges of stealing gasoline. The assistant public defender assigned to the case told him there was a conflict with the case because the office was representing a co-defendant. Crowell said the judge wanted an immediate answer on whether the public defender could enter the case, but Crowell said it would take time before the office could make a determination. Gaston then went on the record, yelling at the young lawyer. "When the judge asks you a question, you look at the judge and respond!" Gaston is heard yelling in the recording.

"He's telling us we need to do more to get them out of jail, when it's the judge's bond in the first place, it's ridiculous," Crowell said. "That's not an atmosphere anyone wants to practice in."

Plead guilty or defend yourself

Crowell said some judges in his jurisdiction want to work through his office's issues, while others won't. All judges in Crowell's jurisdiction declined to comment for this story. One judge told KRCG 13 he had to let the record speak for itself.

The record shows, in order to address caseload issues, area defenders have been encouraged to have caseload conferences with circuit judges. The conference allows judges and attorneys to discuss the issue, and also allows judges to determine what relief, if any, the court can give public lawyers.

As a result of a caseload conference in the 25th circuit, Judge John Beger issued an order stating the court denied the office's claims,. The court did not find public defenders ineffective because of the caseload problem. Beger wrote the caseloads are not inconsistent with those of a practitioner or prosecutor, nor what it knows about public defenders in years past.

Beger wrote in the document filed January 11, 2018, the court felt there were "additional methods" available to lighten the workload of all involved. Beger suggested some defendants, especially those incarcerated on lower level felonies, may want to accept an offer from the state. "If the defendant admits guilt to counsel and indicates a desire to accept the state's offer, delay in doing so on the part of the defender counsel could be a disservice to the client." Beger also suggested prosecutors implement a practice of "pro se disposition of low level felonies", meaning defendants would represent themselves without a lawyer. Beger wrote such a docket helped reduce public defender misdemeanor caseloads several years ago. "A drug possession pro se docket would likely be beneficial as well," Beger wrote.

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Beger also said not all witnesses need to be deposed. "Defendants have the right to take depositions and this court would never interfere with that right," Beger wrote. "Taking depositions that do not further the defendant's planned defense wastes time and money for all involved." He said the assistants should rely on the district defender and his deputy defender to determine when the time and money is warranted for a deposition.

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"That ruling really hurt morale in my office," Crowell said. "That morale problem is leading to people leaving, and I can't stop the bleeding."

Crowell said he was encouraged when circuit judges in Dent and Crawford County acknowledged the problem. In a caseload conference document, Judge Sidney Pearson III directed circuit clerks to contact private counsel to see if any would be willing to accept some cases on behalf of indigent defendants. In his suggestions, Judge Pearson also included the possibility of a waitlist and directed prosecutors to determine if any cases can be disposed of without a jail or prison sentence.

While the remedies were included in the order, Crowell said none have been effective. He said judges in the circuit have assigned several cases to private attorneys, but none of the public defender cases have been approved for a waitlist.

The legislature is listening, while the Governor won't respond

"I think judges have the authority to admit there's a constitutional crisis," Crowell said. "Because if they did, they would get the attention of the legislature."

Missouri's public defender system has been the subject of several studies. The American Bar Association has said the state needs more than 300 additional attorneys to effectively handle its caseload. A right to counsel advocacy group found Missouri ranks second to last in the country in funding for public attorneys. The poorest state in the country, Mississippi, is ranked last.

The organization also found Missouri spends the least amount of money among public defender systems that receive 100% of its funds from the state.

"Instead of adequately funding what is constitutionally required, in this case a poor persons right to counsel, the state has, for far too long, opted to fund more politically expedient parts of the criminal justice system - such as jails and prisons," Barrett said.

Barrett noted Missouri has the eighth highest incarceration rate in the U.S., and the second highest incarceration rate among women. "It would not be this artificially high if we gave every defendant timely access to competent counsel."

A presentation provided by the Council of State Government Justice System advised Missouri, the state either needed to invest in improving its justice system or prepare to spend nearly $500 million on new prisons.

Barrett said about 80,000 Missourians retain services from the public defender's office a year. He said lawmakers made a significant first step in addressing some of the issues after it approved about $4 million in additional funds for the agency in the FY2019 budget. Barrett said $3.2 million would be used to make public defender salaries more competitive compared to other state agencies, while other funds would help revive the agency's juvenile unit in St. Louis.

"Lawmakers deserve a ton of credit for addressing one of the primary drivers of excessive caseloads - and that's turnover among our employees , which is about 20%." Barrett said. "Because of unconscionably low salaries, we are currently unable to recruit and retain licensed attorneys for any significant amount of time, so cases pile up. This year's budget, led by Rep. Fitzpatrick and Sen. Brown, addresses that immediate concern."

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While some lawmakers have made an effort to address some of the agency's issues, Barrett said Governor Eric Greitens has been silent.

Barrett said his office has sent the governor's office six letters over the last couple of years, requesting a meeting to discuss the persisting problems for public lawyers. He said the governor's office has not responded once.

Crowell said despite the challenges, he's proud of his job. "We are providing a service that is noble, honorable," Crowell said. "We go against unbelievable odds everyday. I admire the people I work with," he said. "We can affect the outcome."

How other courts handle the caseload across Mid-Missouri

  • 13th (Boone, Callaway): Judge Kevin Crane has appointed some private lawyers to cases, Boone County also has a waitlist system in place for indigent defendants.
  • 19th (Cole): Judge Patricia Joyce participated in a caseload conference with the area public defender, Justin Carver. Carver said Joyce acknowledged the office has a caseload issue.
  • 26th (Camden, Miller, Morgan, Moniteau): A caseload conference was held with Judge Kenneth Hayden in Miller County with area prosecutors and the area defender in December. A response to the conference has yet to be issued. Judge Hayden declined to comment for this story.

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