Missouri public defender spat underscores serious problem

When one is backed into a corner, sometimes the best strategy to get out is to go on offense. I can only imagine this is exactly what Michael Barrett, director of the Missouri State Public Defender System, was thinking when he invoked a little known provision of Missouri law and started a firestorm.

Fed up with the decreasing budget afforded to his office, combined with the increasing caseload and hiring freeze, Barrett took matters into his own hands. Using a provision of Missouri law that allows the director to “delegate the legal representation of any person to any member of the State Bar of Missouri,” the director took decisive action and announced he was appointing the state’s governor and former attorney general, Jay Nixon, who is an active member in good standing with the Missouri bar, to serve as a public defender and assigned him a case.

In his appointment letter, Barrett noted Nixon’s contribution to the reduction of funding for the public defender’s office has left the office as second-to-last in the state in terms of funding even as other agencies did not experience budget cuts. while. Barrett also wrote his decision came on the heels of the federal Department of Justice’s determination that “poor black children are being systematically deprived of their rights in Missouri due in large part to the lack of public defenders.”

Barrett said he had run out of options, and thus chose to avail himself of the delegation of representation provision. The governor quickly issued a statement touting his support for the public defender system and denounced this appointment as illegal. The director’s actions quickly set off a chain reaction within the Missouri political and legal arenas, but the issues raised have taken a hold of the legal community at large.

While I don’t actually expect the governor to serve as counsel in the assigned case — if for no other reason than conflict-of-interest considerations — Barrett’s letter brings up points worthy of consideration. Funding and staffing for public defender offices is always a hot-button topic. The legislative budget documents for Maryland’s public defender’s office show funding levels slightly increasing during the last few budget years despite a minor staffing level decrease in Fiscal Year 2017. That said, the country still has an imminent need for a well-funded public defender system with highly-trained and proficient attorneys.

I know many public defenders: not only are they some of Maryland’s best and hardest working legal professionals, they are needed now more than ever. Just this morning, the DOJ released the results of its yearlong investigation of the Baltimore Police Department, finding that:

BPD engages in a pattern or practice of: (1) making unconstitutional stops, searches, and arrests; (2) using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African Americans; (3) using excessive force; and (4) retaliating against people engaging in constitutionally-protected expression.

The public defender is one of the most critical elements of the criminal justice system and needs to be well-funded and adequately staffed. If nothing else, Barrett’s actions in Missouri have brought to the forefront just a few of the issues faced by public defenders across the country. If the end result is that Missouri public defenders get the necessary funding they need, then this act of political gamesmanship will have been worth it.