by Natine A. Macauley*
The Missouri public defense system recently made headlines as a result of a Missouri Supreme Court disciplinary decision that highlighted the inherent conflict between Missouri caseloads and the ethical duty of public defenders. Karl William Hinkebein, a public defender, became gravely ill in 2010, yet he continued to work and accept cases. It is alleged that between 2011 and 2014, Hinkebein failed to provide adequate representation to six clients in a diligent manner and did not reasonably inform them of the statuses of their cases. While Hinkebein conceded these allegations, he detailed an environment created by the criminal justice system that assigns more cases to defense attorneys than they can effectively handle. Although Hinkebein was in and out of the hospital, he continued to shoulder his crippling workload. As stated in the respondent’s brief, Hinkebein indicated that he believed that if he refused to accept cases assigned to him, his job would be in jeopardy. As a result, Hinkebein missed deadlines to file pleadings or request extensions. On Tuesday, September 12, 2017, the court suspended Hinkebein’s law license, but stayed that suspension, placing him on probation for one year under certain terms and conditions. This decision illustrates a lack of awareness from the court of the entrenched systemic conditions that lead to inadequate representation. Further, this decision sets a problematic precedent wherein the court disciplines public defenders for operating within systemic deficiencies, yet fail to ensure that adequate systemic conditions exist that allow public defenders to provide effective counsel in the first place.
The state of Missouri allocates an average of $355 per case to its indigent defense budget. Missouri spends less money indigent defense per capita than any other state in the nation, with the exception of Mississippi. With others, the American Civil Liberties Union (ACLU) filed a class-action lawsuit in March 2017 over the state of Missouri’s failure to adequately fund its defense system pursuant to Gideon v. Wainwright. In 2016, Michael Barrett, Director of the Missouri Public Defender’s Office, called on Governor Jay Nixon to represent an indigent client. While the Cole County Circuit Court ultimately decided that Barrett did not have the authority to do so, Barrett’s unique decision to appoint the current governor as counsel provided national exposure of the deficiencies within Missouri’s public defense delivery system. Criminal defense systems in many states put indigent clients at extreme disadvantages by overworking public defenders, who in turn are unable to provide effective defense. Reforms to the public defense system are vital to ensuring that socioeconomic status does not infringe on the right to counsel guaranteed by the Sixth Amendment.
The Missouri Supreme Court ruling in Hinkebein’s case is representative of the inequities in many public defense systems across the nation. Many public defenders in Missouri have chosen to decline cases in the wake of the Hinkebein case. These attorneys have made the difficult choice to decline representation for clients who need it, rather than risk prosecution for acting within an overburdened system that does not support diligent and ethical representation. On October 6, 2017, Michael Barrett, Director of the Missouri State Public Defender’s Office stated on Kansas City’s radio station, KCUR 89.3, “[t]hey just demonstrated they're going to prosecute us. And the Supreme Court just demonstrated that they're going to punish us.” Barrett’s comments describe the unrealistic conditions public defenders work under as well as the severe consequences they may suffer. The American Bar Association published a study in June 2014 titled “The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards.” This study found that on average, public defenders in Missouri allot 84.5 hours to each murder case as opposed to the recommended 107 hours. Funding for cases in the Missouri State Public Defender System was also found to be inadequate, as public defenders were appointed more clients than they could effectively represent. Furthermore, the Missouri State Public Defender’s website states that the 350 public defenders in Missouri are handling over 90,000 cases, which includes capital cases, felonies, misdemeanors, appeals/post-conviction, and certain civil commitment cases.
During Hinkebein’s oral argument, Chief Justice Zel M. Fischer of Missouri Supreme Court questioned why Hinkebein did not simply quit if he felt he had too much work to handle. It is not nearly that simple for most public defenders, however, says Anthony Cardarella, who heads the public defense office in Liberty, Missouri. Cardarella stated to St. Louis Public Radio Station 90.7 KWMU, “if you’re a new lawyer just coming out of law school and you’ve got your law school debt, is that the first solution you’re going to think of – quitting your job?” Public defenders are imperative to the judicial system, and it is vital that this job is desirable and effective. Additionally, it is critical to create sustainable and long-term solutions to the conditions that make their work untenable; If a public defender quits, her caseload is typically distributed to other similarly overworked public defenders. Thus, even if quitting were feasible for public defenders, doing so would likely only exacerbate the problem.
While, public defenders rejected cases to avoid providing ineffective representation, the Missouri Supreme Court ruled in an October 2017 case that public defenders can only reject cases if they have filed and won a motion to do so on ethical grounds. Some public defender advocates argue that this ruling continues to place public defenders in unfair circumstances. As suggested in these two Missouri Supreme Court decisions, until policy changes are made, public defenders will be held to unrealistic expectations, indigent clients will be disadvantaged, and the judicial system will remain unjust.
*The writer is a student assistant at Justice Programs Office, American University.
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“ACLU Sues Missouri Over Disastrous Public Defender System.” American Civil Liberties Union, American Civil Liberties Union (ACLU), 9 Mar. 2017. www.aclu.org/news/aclu-sues-missouri-over-disastrous-public-defender-system.
“Hinkebein, Karl William - Suspension Stayed with Probation.” Missouri Courts: Judicial Branch of Government, Missouri Court System, 12 Sept. 2017. https://www.courts.mo.gov/page.jsp?id=117575
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Margolies, Dan. Many Missouri Public Defenders Decline New Cases After State Supreme Court Disciplines Lawyer. http://news.stlpublicradio.org/post/many-missouri-public-defenders-decline-new-cases-after-state-supreme-court-disciplines-lawyer. Accessed 11 Dec. 2017.
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The Supreme Court State of Missouri. In re Karl William Hinkebein. Respondent’s Brief, No. SC96089. 28 Apr. 2017. https://www.courts.mo.gov/file.jsp?id=115189.
The Supreme Court State of Missouri. In re Karl William Hinkebein. Informant’s Brief, No. SC96089. 28 Apr. 2017. www.courts.mo.gov/file.jsp?id=115188.
Travis-Zimpfer. “Nixon Responds to Public Defender after Legal Victory.” The Missouri Times, 25 Aug. 2016. https://themissouritimes.com/32992/nixon-responds-public-defender-legal-victory/.