Tuesday, November 30, 2010

The Little Drummer Boy

Conundrum - noun: 1. a riddle, the answer to which the answer involves a pun or a play on words. 2. anything that puzzles. Wikipedia puts it more appropriately for the following situation: "a logical postulation that evades resolution."

Here in Missouri (I know it is happening across the United States) there is a very real problem. The Constitution is at stake. Justice is at stake. Inalienable rights are at stake. The Missouri State Public Defender (MSPD) Office closed its offices for a specific window of time. When I saw the news clipping I wondered how indigent criminals would receive equal access to their Sixth Amendment Constitutional right of "Assistance of Counsel." So in lays (yes, the past tense of "lie," as in recline) the problem.

1) The MSPD closed its office because the attorneys are working up to 100% more than is feasible to ensure adequate representation. There is a body of researchers that has compiled how many hours and how many cases a public defender can carry before they begin to sacrifice their own ability to represent the accused properly. Attorneys are under an ethical duty to represent their clients adequately, or risk forfeiture of their license. Almost every defender in Missouri has a significantly higher than suggested caseload. The MSPD has initiated a suit to require more funds to hire more attorneys. The case has been picked up by the Supreme Court of Missouri and the MSPD could receive more funding or stay in the pressure cooker. Why not appoint private attorneys and keep tax costs low?

2) Appointing private attorneys has two poor choices: 1) appoint attorneys that do not have criminal law experience, 2) appoint attorneys that get paid more than the court given fee. This is why appointing private attorneys does not solve the problem. The accused could receive poor representation because of the attorney's lack of skill or lack of incentive (or lack of care). I know, we (attorneys) are supposed to do the right thing . . . the patriotic thing . . . the civic duty thing . . . Realistically, we're all not idealistic all the time.

3) Missouri prosecutors are countering the suit to make sure that the MSPD does not receive additional funding and reopens its doors to indigents. They argue that the MSPD is holding the judicial system and tax-payers hostage by restricting the amount of cases their attorneys take. Well then, just make the MSPD take on the extra cases and represent those that need it!

4) "Let's start at the very beginning, it's a very good place to start . . ." Now we're back to the MSPD attorneys being overworked. Oh, and I almost forgot! Public Defenders are among the lowest paid attorneys in the business. So they're not just overworked, they're underpaid.

Where in lays the solution? I don't know. If less people needed representation, the problem may alleviate itself. It seems that more criminals need to be wealthier, or more criminals need to be less criminal. Are the laws too strict? Is punishment not swift or harsh enough?

The Missouri State Public Defender Offices represent the poor. They are poor boys too, pa rum pum pum pum. They play their conundrum for them, pa rum pum pum pum. They play their best for them, pa rum pum pum pum, rum pum pum pum, rum pum pum . . .


  1. I love it! Excellent. Can attorneys volunteer to represent a poor client in need of representation? Can an attorney serve as a volunteer Public Defender? This might accomplish at least three important long term purposes for an inexperienced attorney: 1) Gain experience in criminal law. Representation by an inexperienced but disciplined, well trained, ethical lawyer is better than none 2) Gain exposure within the legal profession and to the public 3) Increase network contacts within legal and political circles.
    This may be a win-win-win.

  2. Public defenders are mandated by statute to defend indigent clients. What if we allowed other public employees to claim this logic?
    Military: Oh, well, since it's after the 15th of the month, we can't go to war this week, Mr. President. We've already met our rule of warring on no more than 2 continents at a time.
    Police: The complex combination of speeders, drunk drivers, and flashers this month means we don't need to investigate that new rape case. Sorry!
    Fire Department: Well, we can put out 10 house fires or 3 apartment fires. We've already put out 4 apartment fires this month, so all other houses will have to burn until the 1st!
    Do the best you can with what you've got. Yes, private attorneys need to step up. However, the intricacies of some State and Federal law need experience. For example, the sex offender registry is very complex, as are Missouri DOR and CDL's. Caseload management within the PD system is a disaster, with experienced attorneys not being assigned the difficult cases. An inexperienced attorney--PD or otherwise--might plea their clients out of their livelihood or a normal life.
    I shudder to think of the consequences if the Public Defenders win this one.

    This isn't "Little Drummer Boy."

    It's more like the entire cast of "Stomp." Just annoying.

  3. Well, to further your argument, we would never expect judges with 1,500 cases to say, "Sorry folks, no more justice this year, I'm too backlogged."

    (as an aside, I'd like to see a Stomp version of the Little Drummer Boy)