State ex rel. Missouri Public Defender Comm'n. v. Pratte

• Decision Date: 08 December 2009
• Docket Number: No. SC 89882.,No. SC 90195.,SC 89882.,SC 90195.
• Parties: STATE ex rel. MISSOURI PUBLIC DEFENDER COMMISSION, J. Marty Robinson, and Wayne Williams, Relators, v. The Honorable Kenneth W. PRATTE, Respondent. State ex rel. Missouri Public Defender Commission, J. Marty Robinson, and Kevin O'Brien, Relators, v. The Honorable Gene Hamilton and The Honorable Gary Oxenhandler, Respondents.
• Court: Missouri Supreme Court

298 S.W.3d 870

STATE ex rel. MISSOURI PUBLIC DEFENDER COMMISSION, J. Marty Robinson, and Wayne Williams, Relators, v. The Honorable Kenneth W. PRATTE, Respondent.

State ex rel. Missouri Public Defender Commission, J. Marty Robinson, and Kevin O'Brien, Relators, v. The Honorable Gene Hamilton and The Honorable Gary Oxenhandler, Respondents.

No. SC 89882.

No. SC 90195.

Supreme Court of Missouri, En Banc.

December 8, 2009.

Daniel J. Gralike, Office of the Public Defender, Columbia, MO, for relators in no. SC 89882.

Wendy W. Horn, Patrick L. King, St. Francois County Prosecuting Attorney's Office, Farmington, MO, for respondents in no. SC 89882.

Antwaun L. Smith, Shook Hardy & Bacon, L.L.P., Kansas City, MO, J. Gregory

Mermelstein, Office of the Public Defender, Columbia, MO, for relators in no. SC 90195.

Stephanie Morrell, Assistant Prosecutor, Boone County Prosecutors's Office, Columbia, MO, for respondents in no. SC 90195.

MICHAEL A. WOLFF, Judge.

Introduction

These writ proceedings raise the question of the role of the courts, the public defender commission and the legal profession in fulfilling Missouri's constitutional obligation to provide attorneys to represent indigent defendants facing incarceration for their alleged crimes.

There is an apocryphal story in legal circles that a well-known prosecutor some years ago voiced his support for the state to provide attorneys for those accused of serious crimes, noting that without legal representation, an accused cannot be tried: "I can't fry `em if I can't try `em."

The quip lacks good taste, but it highlights the state's problem. These cases are about public safety as well as constitutional rights. An adequate supply of lawyers available to represent indigent defendants is as important to the functioning of the criminal justice system as are adequate resources for law enforcement, prosecutors and the courts.

The public defender brought these writ proceedings after the respondent judges appointed public defenders in three cases, contrary to rules established by the commission to control the caseload of the statewide public defender program.

These cases are three of more than 83,000 in the most recent fiscal year in which a public defender was assigned to defend indigent persons charged with crimes that carried potential for incarceration.¹

The constitution protects the right of an accused to an attorney; the state of Missouri, through its executive and the General Assembly, provides the funds to meet this obligation. The problem that the commission confronts is that the resources provided for indigent defense are inadequate.²

The statewide public defender system, under rules adopted by the commission, had the capacity last fiscal year to spend only 7.7 hours per case, including trial, appellate and capital cases.³

After the commission adopted the rules to control its caseload, the disputes arose that are the subjects of these three writ proceedings. In St. Francois County, respondent Judge Kenneth W. Pratte appointed the public defender in violation of a provision in the commission's rules that denied services to indigent defendants who at some point had retained private counsel. In Boone County, respondent Judge Gary Oxenhandler appointed the public defender to defend a person accused of a probation violation; his order countermanded the public defender's designation of its district office as being of limited availability, under which the office declined to take cases of alleged probation violations, because the office caseload exceeded its maximum allowable cases. In the other Boone County case, respondent Judge Gene Hamilton appointed a full-time public defender in the lawyer's private capacity as a member of the local bar to represent an indigent person accused of a probation violation.

These three writ proceedings raise questions as to the validity of the commission's rules governing caseload management. Before dealing with the specific problems presented by these three writ cases, it is useful to review the constitutional right to counsel and the history and current status of the public defender system to understand the overall problem these cases represent.

The Constitutional Right to Counsel

"The Sixth Amendment [to the United States Constitution] provides, `In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence [sic].'" Gideon v. Wainwright, 372 U.S. 335, 339, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (omission in original). Because the right to counsel is "fundamental and essential to a fair trial," it has been applied to the states through the Fourteenth Amendment. Id. at 342, 83 S.Ct. 792.<sup>4</sup> The right to counsel has been described "as one of the most pervasive rights [of a criminal defendant] `as it affects the defendant's ability to assert any other rights he may have.'" In re D.J.M., 259 S.W.3d 533, 535 (Mo. banc 2008) (quoting State v. Dixon, 916 S.W.2d 834, 837 (Mo.App.1995)). "Indeed, [t]he assistance of counsel is often a requisite to the very existence of a fair trial." Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). As a result, the United States Supreme Court has held that "[n]o person may be imprisoned for any offense ... unless he was represented by counsel at his trial." Id. at 37, 92 S.Ct. 2006.⁵

Under Argersinger, trial judges have an obligation to ensure that every person's right to counsel is met if he or she faces the prospect of imprisonment. See id. at 42, 92 S.Ct. 2006 ("The judge can preserve the option of a jail sentence only by offering counsel to any defendant unable to retain counsel on his own."). In Missouri, Rule 31.02(a) specifies that "[i]f any person charged with an offense, the conviction of which would probably result in confinement, shall be without counsel upon his first appearance before a judge, it shall be the duty of the court to advise him of right to counsel." It is then the duty of the court to appoint counsel if a defendant is found to be indigent. Id. Even if counsel is not appointed at the defendant's first appearance, the rule states that the court shall appoint counsel if the court determines, "at any stage of the proceedings, [that] the failure to appoint counsel may result in injustice to the defendant." Id.

Beyond simply ensuring that counsel is appointed to assist every defendant who faces the possibility of imprisonment, a judge also must ensure that the defendant has effective assistance of counsel. Taylor v. State, 262 S.W.3d 231, 249 (Mo. banc 2008) ("The Sixth Amendment affords all citizens facing criminal charges the right to effective assistance of counsel."); State ex rel. Wolfrum v. Wiesman, 225 S.W.3d 409, 412 (Mo. banc 2007) ("Any defendant that has exercised his right to counsel is guaranteed effective assistance of counsel, and courts should do the utmost to protect the defendant's right to adequate and competent representation."); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Effective representation under the Sixth Amendment requires appropriate investigation, preparation and presentation of the client's case by counsel. Taylor, 262 S.W.3d at 249.

History of the Office of State Public Defender

When a defendant is found to be indigent in Missouri, the defendant's Sixth Amendment right to counsel is usually met by the judge appointing the "Office of State Public Defender".⁶ The public defender's office, however, currently is facing significant case overload problems. Its lawyers and its staff are overworked.

Following the Gideon decision in 1963,⁷ Missouri's indigent defendants were represented by unpaid court-appointed attorneys. State v. Green, 470 S.W.2d 571, 572 (Mo. banc 1971). But in 1971, this Court held that it would no longer "compel the attorneys of Missouri to discharge alone `a duty which constitutionally is the burden of the State.'" Id. at 573 (citing State v. Rush, 46 N.J. 399, 217 A.2d 441, 446 (1966)). The Missouri legislature in 1972 enacted legislation establishing a public defender commission and creating a "blended system of local public defender offices and appointed counsel programs."⁸

By 1981, however, the funding appropriated by the legislature was running out before the end of each fiscal year. In State ex rel. Wolff v. Ruddy, the Court was asked to compel the state to pay attorneys for their work. 617 S.W.2d 64, 64 (Mo. banc 1981). At that time, this Court said that it did not have the power to do so but that it did have the power to turn to The Missouri Bar and compel lawyers to represent indigent defendants. Id. at 65-66. As a result, the Court directed that the members of the legal profession represent indigent defendants until the legislature chose to fix the lack of funding. Id. at 67.⁹

One year later, in 1982, the General Assembly created the Office of State Public Defender under the control of the public defender commission. Sections 600.011 et seq., RSMo Supp.1983, cited in State ex rel. Public Defender Comm'n v. Williamson, 971 S.W.2d 835, 838 (Mo.App.1998). The legislation authorized the director of the office to determine if an accused was indigent and, if so, to appoint private counsel to take the case for a set contract fee. Section 600.011 et seq., RSMo Supp.1983; Public Defender Timeline at 2.

Finally, in 1989, in response "to the rising cost of the contract counsel program and the increasing difficulty finding private practitioners willing to take on indigent cases for the fees paid by the State Public Defender System, the system was reorganized...." Public Defender Timeline at 2. The new system gave the director "the authority to hire assistant public defenders, as well as contract with private attorneys, in order to provide defense services `by means of a centrally administered organization.'" Williamson, 971 S.W.2d at 838 (quoting sections 600.011(7), 600.021 and 600.042.1(10), RSMo...