Pleading the Sixth: When the Missouri Public Defender, Michael Barrett, appointed the Governor to represent an accused indigent defendant, it brought national attention to the state’s longstanding underfunding of right to counsel services. Now, after a local judge ruled Barrett lacked the authority to take the action he did, the Governor moved to change the make-up of the Public Defender Commission in retaliation. Readers: This is why defender independence is the first of the ABA Ten Principles!
On August 2, 2016, Missouri Public Defender Michael Barrett invoked his inherent powers under Mo. Rev. Stat. 600.042.1(5) to appoint Governor Jay Nixon to defend an indigent man accused in a criminal prosecution. The appointment drew nationwide media attention to the severe underfunding of Missouri’s public defender system. (For more on Missouri’s indigent defense deficiencies, click here). On August 23rd, Cole County Circuit Court Judge Patricia Joyce determined that Mo. Rev. Stat. 600.064.1 overruled the statute cited by Barrett, and the court relieved the Governor from the appointed case. On the same day, Governor Nixon moved to fill three vacancies on the Public Defender Commission – the state oversight board charged with hiring and firing the Chief Public Defender – in apparent retaliation for embarrassing the Governor, according to the August 26th St. Louis Post-Dispatch.
Once again, we explain the constitutional imperative for defender independence, national standards on indigent defense commissions (spoiler alert: Missouri does not meet them!), and why Missouri needs to fix its independence in order to protect the right to counsel.
The constitutional imperative for public defender independence
In the 1979 case of Ferri v. Ackerman, the United States Supreme Court held that “independence” of appointed counsel to act as an adversary to the state’s prosecution is an “indispensible element” of “effective representation.” Two years later, the Court determined in Polk County v. Dodson that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” Observing that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the Court concluded that a “public defender is not amenable to administrative direction in the same sense as other state employees.”
The court reaffirmed this principle in Strickland v. Washington. In that case, the Court held that “independence of counsel” is “constitutionally protected,” and that “[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.”
In the United States, there are two primary types of undue interference with the defense function: judicial interference, and political interference. (This post focuses on political interference; click here for more on judicial interference).
Explaining undue political interference
Wherever the public defense system is accountable solely to the interests of the executive branch, political interests can and often do conflict with the constitutional right to an adequate defense for each and every person facing a potential loss of liberty in those jurisdictions.
The senior attorneys of indigent defense systems in states with undue political interference can feel the pressure if, for example, the governor calls for all executive departments to take a 10% budget cut. Since the bulk of an indigent defense system’s expenditures are in personnel, such a cut must come at the expense of staff. Unlike other aspects of the criminal justice system, defenders have no control over the number of new cases requiring their services. A 10% budget cut is nearly impossible to implement if it is not met by a 10% cut in public defender workload – at least if one is concerned about maintaining parameters of ethical representation for all clients. But, despite the ethical considerations, a public defender that is a direct gubernatorial appointee is likely to cut 10% rather than risk being fired.
There are two different ways Governors exert undue political interference. The first is when there is no statewide commission and the governor directly appoints the chief executive of the statewide indigent defense system. (As of publication date, those states are: Alabama, Alaska, Delaware, Iowa, New Jersey, Rhode Island, Vermont, and Wyoming.) The second is where there is a commission, but where national standards on independence are not followed in the creation of that commission.
National standards for public defender independence
The first of the American Bar Association Ten Principles of a Public Defense Delivery System states that the “public defense function, including the selection, funding, and payment of defense counsel, is independent.” The commentary for Principle 1 notes that, in order to “safeguard independence and to promote efficiency and quality services, a nonpartisan board should oversee defender, assigned counsel, or contract systems.” Footnotes to Principle 1 refer to the National Study Commission on Defense Services’ (NSC) Guidelines for Legal Defense Systems in the United States (1976). The Guidelines were created in consultation with the United States Department of Justice (DOJ) under a DOJ Law Enforcement Assistance Administration (LEAA) grant. NSC Guideline 2.10 (The Defender Commission) states in part:
A special Defender Commission should be established for every defender system, whether public or private. The Commission should consist of from nine to thirteen members, depending upon the size of the community, the number of identifiable factions or components of the client population, and judgments as to which non-client groups should be represented. Commission members should be selected under the following criteria: The primary consideration in establishing the composition of the Commission should be ensuring the independence of the Defender Director.
(a) The primary consideration in establishing the composition of the Commission should be ensuring the independence of the Defender Director.
(b) The members of the Commission should represent a diversity of factions in order to ensure insulation from partisan politics.
(c) No single branch of government should have a majority of votes on the Commission.
(d) Organizations concerned with the problems of the client community should be represented on the Commission.
(e) A majority of the Commission should consist of practicing attorneys.
(f) The Commission should not include judges, prosecutors, or law enforcement officials.
Assessing the Missouri Public Defender Commission against national standards
National standards direct that indigent defense commissions should have between nine and thirteen members, appointed by a diversity of factions. Mo. Rev. Stat. 600.015.1 on the other hand calls for only a seven-member commission, all appointed by the Governor. Although Missouri statutes say that the appointments must have the “advice and consent of the senate,” this is different from giving the Senate and House leadership direct appointing authority. And Missouri’s commission does not require representation from organizations concerned with the problems of the client community. Indeed, in opposition to a ban on law enforcement officials serving on the Missouri Commission, Governor Nixon has just appointed one current and one former Sheriff to the commission.
Contrast this situation in Missouri with a state like Montana. Mont. Code Ann. § 2-15-1028 creates the Montana Public Defender Commission (MPDC) – an 11-member public defender commission appointed by diverse authorities: the Supreme Court (2 appointees); the President of the State Bar (3); the President of the Senate (1); the Speaker of the House (1); and the Governor (4 appointments, but they must be from organizations representing: (a) indigent persons, (b) Native American interests, (c) people with mental illness, and (d) people with addictions). No commission member may be a sitting judge, public defense provider, prosecutor, or law enforcement official. (Note: We chose Montana for this example because the MPDC meets national standards in its composition, there is a government task force currently looking at doing away with the commission, and we appreciate that the Montana Attorney General recently spoke out in support of public defender autonomy, as reported in the August 18th Billings Gazette.)
The consequences of a lack of independence are obvious. In Missouri, since the Commission consists of only seven members, the Governor can fill three vacancies at once and almost have a majority of members who could, if they desired, get rid of Public Defender Barrett. It is true that Barrett has a four-year contract that only allows for termination for just cause, but embarrassing the Governor may be enough just cause in the mind of the new commission members.
Until such time as the Commission is legislatively altered to meet national standards, a Missouri Public Defender will face a daunting choice. He may either meet his ethical duty to zealously advocate on the part of his clients and risk his job, or perpetuate the underfunding of the system by doing the bidding of whoever is Governor.
Missouri is not alone in having independence issues as a result of poorly constructed indigent defense commissions. Currently, other states facing similar problems are Arkansas, Georgia, Hawaii, and West Virginia.
In our travels, the 6AC staff often hears criminal justice stakeholders suggest that there are ways to ensure some modicum of independence (e.g., contracted terms of office for chief defenders). When a chief public defender is selected at the outset on the basis of merit by an independent commission, and his continued service is reviewed on a regular basis by that commission, then a term of office goes far toward ensuring that the attorneys who work within the public defender office can devote their undivided loyalty to their clients. But in a system devoid of independence, a contract may simply keep in place a defender who was selected for reasons at odds with the aims of effective assistance of counsel. To be frank, an indigent defense system is either independent or it is not. There is no in-between.