Like many of their counterparts in the State of Missouri, the public defender’s Office in Buchanan County is facing issues with caseloads, specifically the number of felony nonsupport cases being filed.
On Nov. 18, District Defender Shayla Marshall filed a motion requesting a conference to discuss caseload issues with Judge Dan Kellogg, the presiding judge of the Missouri 5th Judicial Circuit, which includes Buchanan County.
According to the motion, the number of cases being handled by Marshall’s office is violating or will soon be violating the rules laid out by the Missouri Supreme Court.
“Due to excessive caseloads, the individual attorney of the Area 5 Public Defender Office are violating or at risk of violating Missouri Supreme Court Rules 4-1.1 (competence), 4-1.3 (diligence), 4-1.4 (communication) and 4-1.7 (conflict of interest),” Marshall says in the motion.
The motion goes on to say the lawyers are not only at risk of violating the Missouri Supreme Court but the Sixth Amendment rights of the citizens of Buchanan County.
Suzanne Kissock, chair of criminal justice, legal studies and social work at Missouri Western State University, says the Sixth Amendment is not something to be taken lightly.
“In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense,’” Kissock said, quoting the amendment. “The Constitution is such an important document, and every clause within it is sacred and important. And the Second Amendment is just like the Sixth Amendment: it is sacred in our system of government and laws. The Sixth Amendment requires the representation by council of those accused of a crime.”
What’s going on in Buchanan County?
The motion filed by Marshall says the office will be wait-listing nonsupport cases, something Marshall confirmed the office has been doing since Oct. 15.
For the past five years, Buchanan County has consistently been the second-highest county for filing felony nonsupport cases, with only St. Louis County filing more.
In 2014, with a population of 89,639, Buchanan County filed 353 felony charges against people who allegedly failed to pay their child support for more than a year. St. Louis County, which had a population of just over 1 million, filed 411 felony nonsupport cases.
For comparison, that’s .39 percent of Buchanan County citizens being charged with felonies for nonsupport compared to .04 percent of St. Louis County citizens being charged with the crime.
With data only available for the first half of 2018, Buchanan County stayed on trend as having the second-highest number of felony nonsupport charges.
Between January and June of 2018, 120 felonies were filed for felony nonsupport in Buchanan County, around .14 percent of the population. In St. Louis County, 224 felony nonsupport charges were filed, around .02 percent of the population.
These hundreds of felony nonsupport cases that are being handled by the six lawyers who work in the public defender’s office in Buchanan County are only some of the cases that group is handling. The defenders also deal with those charged with violent crimes, sexual assault and drugs.
According to Kissock, who herself is a former public defender, the Supreme Court also lays out time standards for cases, which can put additional pressure on attorneys.
“I know the court tries to accommodate or help the system when they are overwhelmed. They try to make sure that the number of cases distributed or that they assist in ways that they can, but there are time standards that have to be met,” Kisock said. “Whenever an attorney has more than the number of cases they can handle, they can get to a point where they feel that their representation may be compromised, and then they have a duty to report that to the court, to report that to their superiors and to say ‘We need help.’”
The decision to wait-list those facing nonsupport charges was discussed informally with both Buchanan County Prosecutor Ron Holliday, whose office is filing the hundreds of charges, and Judge Kellogg, who requested a formal hearing.
Marshall has requested that Holliday not be a part of the formal hearing where she will present evidence of what she says is the overwhelming caseload her attorneys are carrying. She also has requested that her attorneys be allowed to decline cases when they feel they are at risk of violating the Sixth Amendment, which she claims is in direct conflict with a Missouri law.
In what could be described as a lose-lose situation, Marshall and her lawyers could be held in contempt of court for not accepting cases, according to the Missouri law, or they could violate the Sixth Amendment rights of Buchanan County citizens by accepting too many cases and not providing adequate council. At this time, no attorney in the Buchanan County public defender’s office has been held in contempt for refusing to accept a case.
What is happening in Missouri?
Buchanan County public defenders are not the only ones feeling the pressure as they try to represent their clients. A recent series from the Public Broadcast Service looked into the struggle that many public defenders in the state are facing.
In 2018, it was reported that the 320 public defenders in Missouri handle 80,000 cases, an average of 240 cases each. Some suggest that more funding to add public defenders could reduce the number of cases they are balancing.
Missouri is 49th out of the 50 states when it comes to funding for public defenders. In 2016, Michael Barrett, who was overseeing the Missouri Public Defenders Office, was so frustrated with the lack of funding that he appointed then-Gov. Jay Nixon, who is an attorney, to cases to make a point that the office was overrun with clients.
“I wanted to bring attention to this matter because so many people were being incarcerated without competent representation,” Barrett said in the PBS report. “But before I appointed a private lawyer who didn’t cause this problem, I thought I would start with the one person with a law license in the state who could do something to fix it.”
It was ultimately ruled that Nixon could not represent a constituent, and in 2017, the ACLU sued the Missouri Public Defenders Office for failing to spend adequate time on cases.
While public defenders across the state are seeking lighter caseloads and more funding, others, like Buchanan County’s former prosecutor Dwight Scroggins, said the office is getting enough funding.
“You have to do more with less,” Scroggins told PBS. “The public defender’s thinking is limited to, ‘We have a lot of cases, we need more money and we need more attorneys.’ And guess what? They have gotten over the years more money and more attorneys, and what are they saying? You have to start looking somewhere along the line at efficiencies.”
With 94 percent of felony cases in Missouri being assigned to public defenders, Kissock said society as a whole may have to look at solving the issue of too many cases by reducing the number of people falling under the poverty level in Missouri.
“There is there is an issue outside of the legal system, whether that’s raising the minimum wage or addressing issues related to poverty, attacking it from the indigency perspective,” Kissock said “It would really eliminate the representation issue if there were if people didn’t qualify for assistance.”
What Missouri as a whole plans to do about the issue of public defenders remains to be seen, with Barrett stepping down as head of the public defender’s office in October. In May of 2019, the lawsuit against the office resulted in an agreement that there would be a cap on the number of cases a public defender can accept, but this is still pending approval by a federal judge.
As for Buchanan County, Marshall said some nonsupport cases already are being taken off the wait list as her attorneys find time to take those cases. The hearing to discuss caseloads in Buchanan County is set for the first week of January.