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Missouri Public Defender Suit Settlement Faces Fierce Resistance From State Attorney General

August 2, 2019 Nicholas Phillips (at left) of Missouri Lawyers Weekly and Amy Breihan, director of the MacArthur Justice Center.
Lara Hamdan | St. Louis on the Air

Two years ago, a pair of public interest law firms filed suit against the state of Missouri, saying it had failed to provide “meaningful” legal representation for indigent defendants, as the U.S. Constitution requires. Because the public defenders’ office is overworked and underfunded, the ACLU and the MacArthur Justice Center argued, poor people charged with a crime are denied their constitutional rights.

The case has seen a number of twists and turns — and a great deal of drama in recent weeks. On Friday’s St. Louis on the Air, we spoke with Amy Breihan, director of the MacArthur Justice Center, and Nicholas Phillips, a reporter at Missouri Lawyers Weekly, about these developments.

For decades, Missouri has ranked near the bottom of public defender funding. The state is 49th of the 50 states in per capita indigent defense spending, Breihan said. 

The current dispute goes back to May, when the ACLU and the MacArthur Justice Center reached a proposed settlement of their lawsuit with the state public defender’s office. The settlement requires public defenders to limit their caseloads, stop using a waitlist that delays when defendants first get access to an attorney, and take timely action in the cases they handle. It would also appoint a monitor to track compliance.

At that point, Missouri Attorney General Eric Schmitt cried foul. His office argued that the agreement would impact the entire state criminal justice system and provide “grave risks” to public safety. If caseload standards established in the settlement are breached, he warned, judges might have to dismiss criminal cases and release defendants from jail. Schmitt then asked U.S. District Judge Nanette K. Laughrey for permission to intervene in the case and block the settlement. When she said no, the attorney general filed an amicus brief, predicting dire consequences for the state of Missouri should the settlement agreement be approved.

On July 26, Schmitt’s office also announced its intent to appeal to the Eighth U.S. Circuit Court of Appeals. That effectively stalls the proposed settlement, Breihan said.

“It’s incredibly frustrating for us, and for our clients and other folks who have to just sit and wait for some other solution to potentially come along,” she said. “The first appeal took about 14 months. I’d be guessing if I were saying how long this appeal will take, and the impact it will have. But it is going to delay things, and it’s going to have a devastating impact on poor people who, in the meantime, remain without the right of counsel.”

In denying the attorney general’s motion, Judge Laughrey noted that the state of Missouri, and the governor’s office, were originally named in the lawsuit. Under then-Attorney General Josh Hawley, the office fought hard to get those parties dismissed from the litigation — taking their case to the Eighth U.S. Circuit Court of Appeals when Laughrey ruled against them. Now they want back in. 

Laughrey said they had their chance. 

“If the Attorney General wanted the state to have an active role in opposing the settlement,” she wrote, “he should not have sought immediate dismissal of the state as a defendant.” Her ruling pointed out many other places where the office could have sought to intervene before this late hour. 

Still, Phillips noted that the attorney general has repeatedly complained that the only two parties at the table now — the law firms seeking more money for the public defender’s office, and the public defender’s office itself — are in alignment. “The judge didn’t go for that,” he said. “But they’ve carried that same argument through.”

Schmitt's office declined to be on the program but sent a statement on his behalf: “Missourians, particularly indigent citizens, deserve the very best from our justice system. Under this proposed deal, which was negotiated in secret by two aligned parties, citizens who rely on the state for representation could be harmed, and public safety could be threatened — courts may be required to dismiss criminal cases entirely, and incarceration may be taken off the table in certain cases. Missourians deserve to voice their opinion in this matter, and it’s my job to ensure they have that opportunity.”

The public defender’s office did not respond to requests for comment.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill, Lara Hamdan and Alexis Moore. The engineer is Aaron Doerr, and production assistance is provided by Charlie McDonald.

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