The head of the state's public defender system has assigned a case to Gov. Jay Nixon after claiming the governor has failed to support the overburdened system.
State Public Defender Michael Barrett sent Nixon a letter Tuesday making the assignment, citing a state law saying the public defender system's director "may delegate the legal representation of any person to any member of the state bar of Missouri."
The Missouri Bar's lawyer directory shows the governor has been an active member in good standing since 1981.
"It is well established that the public defender does not have the legal authority to appoint private counsel," Nixon spokesman Scott Holste said Thursday.
He said the section of law Barrett cited "requires the consent of the private attorney" appointed.
And, Holste noted, a different section of the same state law chapter gives "only the circuit court (the power to) appoint a private attorney to represent an indigent criminal defendant."
Barrett told the governor his decision to appoint Nixon follows years of what he called the governor's failure to support Missouri's "overburdened public defender system" - including Nixon's decision a month ago to withhold $3.5 million in funding from the agency's $45.81 million budget for the 2016-17 business year that began July 1.
"You have repeatedly cut funding for an indigent defense system that continues to rank 49th in the U.S., with a budget that the consumer price index indicates has less value now than it did in 2009," Barrett wrote. "After cutting $3.47 million from public defense in 2015, you now cite fiscal discipline as reason to again restrict MSPD's budget, this time by 8.5 percent.
"However, and despite claims that revenues are considerably less than expected, you did not restrict a single dollar from your own budget, and the average withhold from 12 of your executive agencies does not even add up to one half of one percent."
Holste said Nixon has always supported indigent criminal defendants having legal representation, noting the state public defender has seen a 15 percent increase in funding under this administration while other agencies have had to tighten their belts, and 5,100 full-time state jobs have been cut.
But, Barrett said: "If he only looked at what's been provided for legal services, it's around 6 percent."
At the same time, he added: "Our costs have gone up around 18 percent since 2009, and just in the last year, the number of cases have gone up 12 percent, from 74,000 to 82,000."
He pointed to a recent report from the American Bar Association, saying 250-plus more lawyers were needed to be constitutional. A federal Justice department report said "more children - particularly children of color - are being denied their rights" by the state's legal system and lack of adequate public defenders.
The U.S. Supreme Court has ruled the U.S. Constitution's 6th and 14th Amendments require the state to make sure people get a lawyer, even if they can't afford one, when they are charged with crimes that could lead to jail or prison sentences.
"This is a constitutional right, make no bones about it," Barrett said. "This is something that the state has to provide."
Making an analogy that "you have to pay your mortgage before you put in a (swimming) pool," Barrett noted Nixon "is out there spending money on parks" while the public defender system's "lawyers have anywhere from 125-250 cases at any one time."
That's a caseload experts call far too high to provide effective legal representation.
"I can only hire attorneys when I have the funding to do so," Barret wrote in his letter to Nixon on Tuesday. "Because you have restricted that funding, MSPD must hold a significant number of vacant positions open to have the necessary funds to make it through the fiscal year."
Barrett told Nixon he's been reluctant to use that appointments authority "because it is my sincere belief that it is wrong to reassign an obligation placed on the state to private attorneys who have in no way contributed to the current crisis."
However, Barrett added: "It strikes me that I should begin with the one attorney in the state who not only created this problem, but is in unique position to address it."
Neither Barrett nor the circuit court have identified the specific case Nixon was assigned.
NPR reported Thursday it's an assault case.
Some of Barrett's claims in the letter to Nixon are similar to issues Barrett raised in a lawsuit he filed against Nixon on July 13.
That case is scheduled for an Aug. 30 hearing before Cole County Circuit Judge Jon Beetem.