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Nixon vetoed bill to cap public defenders' caseload; jury's still out on final verdict

This article first appeared in the St. Louis Beacon, July 21, 2009 - Prosecutors and public defenders commonly spar in the courtroom. But their courtroom antagonism spilled into the political arena over legislation to allow public defenders to cap their caseloads.

Faced with legislation they said would be disastrous to the criminal-justice system, prosecutors went into overdrive, saying the measure would gum up the system. For their part, public defenders argued the cap was needed to limit a caseload they say is out of control.

County officials -- including two representing the St. Louis area -- urged Gov. Jay Nixon to veto Sen. Jack Goodman's legislation. Their plea was successful; Nixon struck down the legislation last week.

Prosecutors say the veto is a step in dealing comprehensively with a justice system that is overworked and strapped for resources. But at least one sponsor of the bill may push for the measure to be reinstated, despite Nixon's veto.


Public defenders saw the measure as solving a burgeoning caseload, especially when funding for the state agency has been static for years. (The state is responsible for the public defender system, while individual counties are in charge of handling the needs of local prosecutors.)

During the session, Goodman, R-Mount Vernon, presented the bill as a "safety valve": Public defenders aren't exempt from rules preventing attorneys from taking on too many cases. Because of that, some worry their law licenses could be at risk.

Moreover, Goodman has said the possibility of discipline for too many cases could be a disincentive for attorneys to become public defenders. That, he said, could make it more difficult for poor people to receive effective legal counsel.

"It's not usually ... a sexy cause for me take up, advocating for more people to defend accused criminals," Goodman said earlier this year. "But I come at this from the perspective of a former assistant prosecuting attorney. And I have seen this crisis building over several years."

Under the bill's provisions, the director of the public defenders would first contract excess cases to private counsel. But if the money isn't present, the director would inform courts that a public defender is unavailable. Any person eligible for services would be put on a waiting list.

While the Missouri General Assembly experienced deeply partisan divides over major issues, Goodman's bill could be seen an example of broad bipartisan action.

Goodman -- a candidate for the congressional seat of U.S. Rep. Roy Blunt, R-Stafford -- managed to push the bill through the Senate without any "no" votes. House Speaker Ron Richard, R-Joplin, steered the bill to the House General Laws Committee, which typically has been a conduit for fast-tracked legislation. It passed out of that committee unanimously.

In the House, the bill even received kind words from Democrats. Rep. Don Calloway, D-Bel Nor, called the legislation one of the most important bills the legislature passed in the 2009 session.

The bill ultimately passed without opposition in the Missouri Senate and with only 16 "no" votes in the House. Both margins are enough to override a veto.

But despite the broad support for the bill across party lines, loud rumblings of discontent could be heard when the legislative session came to a close.


Organizing dozens upon dozens of prosecutors to speak up against Goodman's bill was akin to "herding cats," said Dwight Scroggins, Buchanan County prosecutor.

By his own admission, Scroggins --  president of the Missouri Association of Prosecuting Attorneys -- said the state's prosecutors were outgunned during the legislative session. Prosecutors didn't mount their attack until fairly late in the process. By the time Warren County Prosecutor Michael Wright testified, the measure was already on track to pass by a wide margin.

Nevertheless, prosecutors raised alarm bells about the bill. Among other things, they were opposed to provisions to scrap the need for a public defender if the prosecutor did not seek jail time for a defendant.

Nixon's office released numerous letters asking the governor to veto Goodman's legislation. Both St. Louis County Prosecuting Attorney Bob McCulloch and St. Louis Circuit Attorney Jennifer Joyce asked Nixon to veto the bill.

Joyce said the proposed changes in Goodman's bill would "detrimentally affect the criminal-justice system."

"The bill is premised on the theory that there is a crisis in the public-defender system," Joyce wrote. "If such a crisis exists, then it must therefore affect the entire criminal-justice system. "

Joyce also wrote that the legislation would place "an impossible burden" on prosecutors to determine whether the state would seek jail time for misdemeanors.

"Often this decision could not be made before valuable information and criminal history about the defendant can be obtained," Joyce wrote. "This will undoubtedly result in delay, dismissing and refilling of cases, which will delay justice to crime victims."

McCulloch wrote about the potential harm on the flow of cases.

"I will leave it to others to decide if this is an unlawful delegation of legislative authority," McCulloch wrote concerning the ability for the Public Defender Commission to implement a caseload cap. "However, even it is proper, it creates constitutional issues regarding speedy trial requests and other motions -- not to mention the absolute injustice to the victims who have a constitutional right to a timely disposition of the case."

Numerous judges also requested that Nixon veto the bill.


In his veto message, Nixon said the public defender caseload shouldn't be resolved by allowing "the Public Defender Commission to establish maximum caseload standards and create waiting lists for criminal defendants."

"Permitting the Public Defender Commission to unilaterally establish caseload limits will simply shift the burden to other participants in an already burdened criminal justice system," Nixon wrote. That "will not aid crime victims who will have to wait for justice to be imposed, prosecutors who may feel the necessity to prematurely waive jail or prison time in order to move a case forward, or criminal defendants who will have their day in court delayed."

Nixon spokesman Jack Cardetti said the bill did not address the systemic problems within the public-defender system.

"The governor said there are difficulties in the public defender system. He just did not believe this was the specific way to address those," Cardetti said. "One of the reasons he didn't think is because it didn't alleviate the burden. It only shifted the under-resourced criminal justice system."

Scroggins said Nixon's decision-making had much do with his understanding of the courts. Before Nixon became governor, he spent 16 years as Missouri's attorney general. Scroggins added he hoped the veto would spur a comprehensive approach to solving the problems of the criminal-justice system.

But Cardetti said Nixon didn't necessarily agree with those prosecutors who say public defenders are not overworked. Such sentiments were commonly expressed to the governor.

Boone County Prosecutor Daniel Knight, for instance, wrote that he did not believe "the workloads of the local public defenders are overly burdensome, especially when compared to the workloads of attorneys in my office."

"Despite the fact that individual public defenders in Boone County handle only a small fraction of cases that each prosecutor handles, public defenders in this county are considered by the Public Defender Commission to be ... among the most overworked attorneys in the state!" Knight wrote.

Joyce wrote that "prosecutors handle 100 percent of the cases in the criminal justice system, while public defenders statewide handle approximately 30-40 percent of the overall caseload."

McCulloch wrote that the caseload numbers provided by the public defender system are "at best inaccurate and at worst fabrications."

"Perhaps in some parts of the state the public defenders are overburdened, but the numbers put forth by the [public defender system] are unreliable and cannot provide a valid basis for any proposed remedy," McCulloch said.

One point of conflict is whether probation violations should be included in a caseload count. Public defenders include them, even though the office of the state court administrator does not count them as separate. Public defenders argue that the instances take up time and manpower.

In any case, Cardetti pointed to Nixon's veto letter that acknowledged "challenges" within the agency.

"His own words on this clearly said that there are issues both with the public defender, but in the whole criminal justice system as their own," he said.


One option is for lawmakers to override Nixon's veto, a move requiring "yes" votes from two-thirds of state legislators. Cat Kelly, the state's deputy public defender, said she wasn't sure the agency would request such a move.

Since the legislation originated in the Senate, Goodman would have to move first to override Nixon's veto.

Goodman called Nixon's veto "obviously disappointing."

"I have not yet fully decided whether we're going to pursue an override or simply try to work with the governor's office in the next session," Goodman said.

Goodman said "he was a little frustrated" that prosecutors didn't suggest substantive alternatives to his legislation. "And there seemed to be some sense that if you're helping them, you're hurting us, which I don't think was an objective or healthy way to look at this situation," Goodman added.

The House handler -- Rep. Tim Jones, R-Eureka -- said he was disappointed by Nixon's veto. If Goodman tried for an override, Jones said he would follow suit.

"We actually got something done on this huge issue that's been constantly talked about in just the three little years I've been up there," said Jones, who worked for a time as an assistant prosecutor in New York state. "And it seemed there were a couple different ways to address it. One was more funding -- but we couldn't do that this year. The other was more case management. So this seemed like a reasonable way to address the case management issue and get a hold on the crisis."

The veto was especially disappointing, Jones said, since supporting public defenders has been a Democratic cause for many years. He also said some Democratic lawmakers -- such as Calloway -- were strong supporters of the legislation as it went through the process.

"I didn't see a real good reason to veto the bill after all that heavy lifting and hard work," Jones added.

Still, Kelly said she was hopeful about Nixon's desire to work with the public defenders to allocate more resources.

"We have always said it's a matter of bringing in more resources or limiting the number of cases coming in -- one or the other," Kelly said. "And if the governor is committed to bring more resources to handle the cases, we are more than happy to work with him on that."

Getting more money, however, could be easier said than done. The state's budgetary situation has prompted Nixon to cut or withhold money from a number of programs.

Asked how the public defenders would get more resources when many other state agencies are languishing, Cardetti pointed to bipartisanship.

"That is always, especially in this building, a good sign," Cardetti said. "Both sides of the aisle agree that there is a problem."

For his part, Goodman was skeptical. The legislation, he said, was a way to provide flexibility for public defenders until more resources became available.

"In today's national economy, it's highly unlikely that the funding will increase enough in the coming budget year to address this problem," Goodman said.

Jason Rosenbaum, a freelance writer in Columbia, covers state politics.

Jason is the politics correspondent for St. Louis Public Radio.