by Mark Wilson
"They just demonstrated they’re going to prosecute us, and the Supreme Court just demonstrated that they’re going to punish us,” said Michael Barrett, director of the Missouri public defender system, in response to the suspension of an overworked lawyer.
Karl William Hinkebein is a 21-year veteran of the Missouri State Public Defender System, assigned to the appellate post-conviction relief division. Rejecting his claim that he had a large workload and felt he could not turn down cases, the Missouri Supreme Court suspended his law license indefinitely on September 12, 2017 for failing to communicate with six clients; failing to keep them apprised of the status of their case; and failing to file amended motions for post-conviction relief on their behalf between 2011 and 2013.
Disciplinary counsel had asked the Court to suspend Hinkebein for one year. In a 23-page Supreme Court brief, Hinkebein admitted to the violations. He requested that the Court impose only a reprimand, claiming that his workload and chronic and severe health problems detrimentally affected his performance.
The Court stayed Hinkebein’s suspension, placed him on probation for one year, and ordered him to pay a $1,500 fine. He was also required to submit to an employee improvement plan, under which he must notify a supervisor if he becomes unable to meet filing deadlines and use a calendaring system so those deadlines can be monitored.
The case highlights an indigent defense system that has been chronically and dramatically underfunded for decades. Only Mississippi spends less than the $355 per case that Missouri currently allocates to its indigent defense budget. Missouri’s 370 public defenders handle more than 80,000 indigent criminal cases annually—an average of 216 cases per attorney. Of course, some far exceed the average. One attorney is handling 298 cases, and another has an unmanageable caseload of 295 open cases, according to Barrett. “These are not cases for the year. These are cases right now.”
Several studies have found that the Missouri indigent defense system should employ nearly twice as many attorneys to satisfy the American Bar Association’s standards governing the minimum time necessary to adequately represent clients.
In an attempt to bring attention to the broken indigent defense system, Barrett invoked an obscure law to appoint then-Governor Jay Nixon, a lawyer and former state attorney general, to represent an indigent defendant in 2016. Although a judge ruled that Barrett lacked authority to appoint Nixon, his point was made loud and clear: Missouri’s public defense system was badly broken and on the verge of collapse.
The Missouri chapter of the American Civil Liberties Union responded by filing a class action lawsuit in March 2017. The suit, which is still pending, seeks to force lawmakers to adequately fund the state’s indigent defense system.
In the meantime, lawyers fearing Hinkebein’s fate have started refusing to accept new cases. “At least for our office, the intent is not to assign any cases to already burdened public defender attorneys in light of the Hinkebein oral argument, briefs and decision,” wrote Liberty County public defender Anthony Cardarella in a letter to judges of three counties.
Some judges have allowed public defenders to refuse to take additional cases, appointing private attorneys to represent indigent clients instead. Others, however, are not so sympathetic and have ordered them to continue taking cases.
The Missouri Supreme Court’s decision leaves public defenders in what Barrett described as an untenable position. “If I was a cartoonist for a newspaper, I’d draw a picture of a public defender who’s got two guns pointed at him from either side of their head,” said Barrett. “On one side, the (Office of Chief Disciplinary Counsel) and the Supreme Court saying, ‘I dare you to take that case and I’m going to take your law license.’ On the other side is the local court who says, ‘I dare you to not take that case. And I’ll hold you in contempt.’ That’s our world right now.”
Undoubtedly, the public defenders in Missouri are in an extremely tough situation. But lest we forget, there is a group that may have it even worse than them—the indigent criminal defendants whose lives are in the hands of admittedly overworked and thinly stretched attorneys who cannot possibly provide thorough and vigorous defense for each of the defendants assigned to them.
Sources: www.courts.mo.gov, kcur.org, ksmu.org
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