A Governor Ordered to Serve as a Public Defender

Amid a funding crisis, Missouri’s top public defender appointed Governor Jay Nixon to represent a poor client.

Missouri Governor Jay Nixon in 2014 (Lucas Jackson / Reuters)

This post was updated on Thursday, August 4 at 10:56 p.m.

Missouri’s public-defender system is in crisis. Like many other systems throughout the U.S., it is underfunded, understaffed, and underappreciated. The state spends less than half of the national average in per-capita public-defense spending, placing it in 49th place out of 50, according to the National Legal Aid and Defense Association.

Ensuring that Missouri carries out the Constitution’s command that all criminal defendants receive legal representation is the job of Michael Barrett, the director of the state’s public-defender system. To deal with an extraordinary problem, Barrett hit upon an extraordinary solution: use an obscure Missouri legal provision to order Missouri Governor Jay Nixon, a lawyer and former state attorney general, to provide legal aid to the state’s poorest defendants.

Relying on private attorneys to fill gaps in the public-defender system is hardly novel. But conscripting the governor of a state into providing legal-aid service appears to be unprecedented. In a terse, damning letter to Nixon dated August 2, Barrett laid out his reasoning behind the unusual assignment.

Seven years ago, your office vetoed Senate Committee Substitute for Senate Bill No. 37, which would have provided caseload relief to an overburdened public defender system. In denying that relief, you acknowledged that MSPD was operating “under significant stresses” and committed to working with the General Assembly to fix the problem, but never did.

Instead, 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. 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%. 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 you executive agencies does not even add up to one half of one percent (.47%).

This action comes even after the Civil Rights Division of the Department of Justice found that poor black children are being systematically deprived of their rights in Missouri due in large part to the lack of public defenders. Choosing the wake of that report to further debilitate the very organization that ensures an equal system of justice only adds to the escalating sentiment that the poor and disenfranchised do not receive a fair shake in Missouri’s criminal justice system.

The clash also follows Nixon’s July decision to slash $3.5 million from the public-defender budget, reducing a $4.5 million increase earmarked for the system by state legislators to $1 million. According to the St. Louis Post-Dispatch, a 2014 study found the system would need an additional 270 attorneys to handle its massive caseload. But the cuts made those hires effectively impossible, Barrett claimed.

As Director of the Public Defender System, I can only hire attorneys when I have the funding to do so. Because you have restricted that funding, MSPD must hold a significant number of vacant positions open to have the necessary funds to make it though the fiscal year, a task which is exacerbated by a 12% increase in cases over the year prior. To avoid having to close one or more offices, the remaining option is to consider the use of Section 600.042.5, which gives the Director of the Public Defender System the authority to “[d]elegate the legal representation of any person to any member of the state bar of Missouri.”

Barrett acknowledged this option is strong medicine. “As of yet, I have not utilized this provision because it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis,” he wrote. “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.”

Therefore, pursuant to Section 600.042.5 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defense, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case.

In response, Scott Holste, Nixon’s communications director, issued a statement Thursday defending the governor's record on indigent defense. He also challenged Barrett's legal authority to appoint Nixon as counsel, citing other statutes.

Gov. Nixon has always supported indigent criminal defendants having legal representation. That is why under his administration the state public defender has seen a 15 percent increase in funding at the same time that other state agencies have had to tighten their belts and full-time state employment has been reduced by 5,100. That being said, it is well established that the public defender does not have the legal authority to appoint private counsel.

Under Section 600.064 of Missouri law, only the circuit court can appoint a private attorney to represent an indigent criminal defendant.  Section 600.042.5, the statute referenced by the public defender, authorizes the public defender to “delegate” representation by contracting with private counsel, which requires the consent of the private attorney.

This isn’t Barrett’s only effort to protest the budget cuts. He and the Missouri Public Defense Commission also sued Nixon on July 13, arguing the withholding of public funds from the public-defense system violated Missouri’s state constitution. In a statement coinciding with the lawsuit, Barrett accused Nixon of undermining the state legislature by executive fiat.

“The Governor’s attempt to transform our democracy into a monarchy violates the separation of powers at the most rudimentary level,” he declared.

Even a lawsuit now seems like a relatively tame maneuver compared to Barrett's letter. Whether a judge will allow the state’s chief executive to be forced to work as a public defender remains to be seen. But if Nixon is compelled to serve, he’ll almost certainly find his labors to be a drop too small in a bucket too large.