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Mo. lawyers eye break from public defense

By ALAN SCHER ZAGIER

Associated Press

COLUMBIA, Mo. (AP) — State lawyers have joined forces with private attorneys in the dispute over being involuntarily assigned criminal cases to lessen the burden on Missouri’s overworked public defenders.

Attorney General Chris Koster is asking judges in Boone and Callaway counties to waive several court orders appointing state workers as pro bono lawyers for criminal defendants facing jail time and unable to afford their own legal counsel. Koster’s office is representing at least six state employees opposed to the move, court records show.

The Associated Press obtained the public court filings from attorneys concerned about the practice.

Among those seeking relief is state parks director Bill Bryan, one of nearly 150 private attorneys in the 13th Judicial Circuit randomly chosen in recent months to take cases that public defenders say they are too busy to handle. Bryan, who did not respond to a request for comment, was appointed in late October to represent a Columbia woman charged with driving with a revoked or suspended license, a misdemeanor offense.

Facing a backlash from private attorneys statewide, the Missouri Public Defender Commission voted earlier this month to back away from the caseload limits, meaning there will be no additional pro bono assignments — for now — and those in private practice that were previously mandated to help out can be removed.

But Presiding Circuit Judge Gary Oxenhandler said it’s up to individual judges to rescind such appointments.

“The issues that we have faced for the past several months will not be going away,” he said. “This is an issue that is in a constant state of flux.”

The formula used by the Missouri public defender system — based on standards developed nearly 40 years ago — has come under increasing scrutiny, with local prosecutors suggesting their counterparts are exaggerating the severity of the problem. Platte County prosecuting attorney Eric Zahnd, president of a statewide prosecutors’ association, called the claim a “myth.”

In his court filing opposing the appointment and asking for a separate hearing, Bryan noted that as a state employee, he’s not allowed to use his office computer or phone for such business and would have to use vacation time or personal leave to appear in court. Bryan and other state attorneys would also have to purchase their own malpractice insurance.

His filing invokes a 1981 Missouri Supreme Court opinion, issued prior to the creation of the state public defender system, protecting an appointed attorney’s right “to be free from involuntary servitude.”

On Nov. 21, Associate Circuit Judge Michael Bradley denied a request for removal by Sheri Wells, an administrative hearing officer for the state Department of Social Services who was also appointed to represent a defendant charged with driving with a revoked license. Bradley’s ruling applies to Bryan’s case, which was consolidated with Wells’ petition.

Bradley acknowledged the hardship that Wells, Bryan and other state lawyers face, and noted that other lawyers summoned could also face similar challenges — from in-house company attorneys to lawyers who no longer practice, as well as attorneys who specialize in civil law but haven’t tried a criminal case.

Oxenhandler — who titled a document about assigning cases as “public defender triage protocol” — also acknowledged the public defenders’ workload rules have led to widespread unrest caused by “inefficiency, delay and upheaval in the criminal justice system.”

But ultimately, Oxenhandler said, the oath new lawyers swear to trumps other concerns.

“You promise that you’re going to represent the defenseless,” he said. “Whether you go to work in private practice or for Shelter Insurance or for the State Tax Commission, the roots of what you do are that oath.”

In some cases, private attorneys appointed by Oxenhandler have instead hired other attorneys to handle those cases, choosing to pay out of their own pockets.

A state audit released in October concluded the public defender system did not have enough information to accurately determine the staffing and resources needed to manage workloads.

Among other things, Auditor Tom Schweich said the system had been using a “bad baseline” to determine caseloads. The audit also noted that staffing increases have not kept up with growing public defender caseloads.

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Alan Scher Zagier can be reached at http://twitter.com/azagier

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