Gov. Jay Nixon
Gov. Jay Nixon | Missouri Governor's Office

Missouri governor objects to being named counsel for poor defendant

The director of the Missouri State Public Defender’s Office has appointed the governor to represent an indigent defendant in a circuit court next week, as a way to protest budget cuts and high caseloads.

Governor Jay Nixon's administration said he will not comply – setting up a legal confrontation.

Public Defender Michael Barrett told AMI Newswire Monday that he decided to use his powers under Missouri law to draft Nixon as counsel in an assault case in Cole County – location of the state’s capital, Jefferson City – and to call on him to show up at the circuit court on Aug. 17.

“This individual’s liberty is not immediately at stake,” Barrett said, adding that the defendant is out on bond.

The director maintains that Missouri law allows him to delegate any member of the state bar, the governor included, to serve as counsel for an indigent defendant, but the governor’s office flatly rejects that position.

“Missouri law is clear that the public defender does not have the legal authority to appoint private counsel,” Scott Holste, communications director for Nixon, said in an email to AMI Newswire. “Only the circuit court has the authority to appoint a private attorney to represent an indigent criminal defendant.”

In a statement to The Associated Press, the governor’s office said that, under provisions of the Missouri statute cited by Barrett, the consent of a private counsel is required in order for the director to contract with any attorney.

Barrett, however, contends that the governor has conflated the different parts of the law dealing with contracting and delegating. “The governor is trying to muddy the waters” with his statement, the director said Monday.

The public defender’s office has seen its funding rise 15 percent during the Democratic governor’s administration, according to Holste’s email, even as the total number of full-time state employees has been cut by 5,100. In the current fiscal year, the public defender has been given an additional $1 million in state funding, he said.

In a letter to  Nixon last week, however, Barrett said the governor's numbers don't take inflation into account. He said that when adjusted for inflation, his office's budget is less today than it was in 2009, the year Nixon took office as governor.

Barrett’s letter states that the public defender system sustained a $3.47 million cut in 2015. Missouri's legislature agreed to add $4.5 million to the system this year, but Nixon last month announced that he was whittling down that allocation to $1 million as part of an overall effort to balance the state budget.
The director has also said he has to keep a high number of attorney positions vacant to get through the fiscal year, thanks in part to a 12 percent rise in the caseloads over the previous year.  

The governor’s spokesman also noted that Nixon, who previously served as the state's attorney general, signed a bill in 2013 that created a process to help the public defender manage cases.

The director said he has not previously attempted to use his interpretation of the law to appoint private attorneys to help with the public defender caseload, since private attorneys generally are not responsible for the current crisis.

“However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it,” Barrett said in his letter to the governor.

In response to the standoff in Missouri, the National Association for Public Defense, an advocacy organization made up of public defender professionals, sent out a message on Twitter: “Nixon should set an example: Take the case. …”

Ernie Lewis, the association’s executive director, told AMI Newswire that the association supported Barrett’s efforts to raise awareness about funding shortfalls for public defenders. “Excessive workloads is a chronic condition of public defender offices and has been for decades,” he said. “Public defenders in too many places are the pack mules of our system, and many policymakers believe that they can continue to stack work on them without additional resources.”

Lawmakers often pass laws that end up expanding the caseloads of public defenders without providing the needed funding to hire additional personnel, causing attorneys defending the indigent to see their caseloads increase, he said.

Lewis said that whether Nixon would ultimately be required to handle the case assigned to him depends on the interpretation of the state’s statute. The judge assigned to the case in question will decide whether to enforce Barrett’s appointment of Nixon, he said.

As a symbolic act to highlight the plight of public defenders, Lewis said, “I think it’s brilliant on Michael Barrett’s part. Funders have to provide enough money to do the job the Constitution requires.”