8 ms·

Missouri State Public Defender: Letter to Governor [pdf]

251 points by sea6ear 10y ago

Overtonwindow 10y ago
HRm. Well that's interesting but good luck. As Governor I would think he'd have a conflict of interest.
- jessaustin 10y ago
  I think that's up to the discretion of the trial judge? In many cases you'd expect trial judges to defer to the governor's wishes because corruption. However, the judges around here are always complaining that the courts don't get enough money, so they might have sympathy for the PD. Also, one would expect some of them are at least slightly in favor of justice, so it has to stick in their craw a bit when they see all the poor folks getting the five-minute-plea-bargain treatment.
aftbit 10y ago
Some interesting discussion is happening over on MetaFilter[1]. The uninformed opinion is that this is a great publicity stunt, but probably won't stand as the Governor is technically the head of prosecution and would therefore have a conflict of interest with every case. 1: http://www.metafilter.com/161399/Missouri-governor-appointed-as-a-public-defender-to-an-indigent http://www.metafilter.com/161399/Missouri-governor-appointed...
- DannyBee 10y ago
  Well, remember depending on the ethics rules of the state, the conflict may be waivable by the client :)
- maxerickson 10y ago
  It's interesting that so many people over there think this will be terrible for his career. His background is also interesting: http://www.mobar.org/esq/mar27/michael-barrett.htm http://www.mobar.org/esq/mar27/michael-barrett.htm His wife is the Executive Director of the Missouri Bar and he used to be a deputy lawyer in the governor's office. This could easily be a first step towards running for an elected position.
  - throwaway729 10y ago
    It's entirely political. Else he'd have also sent letters to members of the bar in MO's general Assembly which is equally if not more to blame for the current situation. (And is, IME, a ridiculous embarrassment to the state...)
    - jessaustin 10y ago
      I'm sure he's got more cases to assign. If, after the inevitable delaying tactics, he can actually force the governor to do this, he'll have many more letters to send, and precedent will have been set. (At least, until the new legislative session starts in January.)
    - xenadu02 10y ago
      Actually the MO Assembly tossed them $4.5 million in additional funds, specifically to hire more ad litems in child abuse cases (the attorneys appointed by the court to represent the child directly). For some reason the governor's office has withheld $3.5 million of those funds (apparently that's a power the MO governor has?).
      - hga 10y ago
        It is, and I think it's rather common for states, and he's usually used it responsibly to keep the state's finances semi-sane. Don't know about this example, though. The US president used to be able to do this, Thomas Jefferson was the first in 1801 per Wikipedia (https://en.wikipedia.org/wiki/Impoundment_of_appropriated_funds https://en.wikipedia.org/wiki/Impoundment_of_appropriated_fu...), and it continued to help keep the US Federal budget a bit sane until in 1974 when the Nixon excuse was used, as it was for so much else, to completely change the way we did budgeting (and much else, like campaign financing, the primary system, etc.). As someone who's been there for the before and after, this was not an improvement, something that's going to be brought forcefully to everyone's attention when e.g. we are no longer viewed as the least worst place to stash your wealth.
      - throwaway729 10y ago
        > Actually the MO Assembly tossed them $4.5 million in additional funds ...and also cut $60M in tax revenue without matching spending cuts, taking the political win of lower taxes while forcing the governor to choose between screwing the state Kansas-style or else taking the political fall-out for spending cuts. Heads I win, tails you lose. It's all theater, and you're being duped if you think the legislature isn't at least equally responsible for MO's under-funding of p much everything. > apparently that's a power the MO governor has? Yes, it's actually for more common than not in state governments. See https://en.wikipedia.org/wiki/Line-item_veto_in_the_United_States#Governors https://en.wikipedia.org/wiki/Line-item_veto_in_the_United_S...
- hga 10y ago
  but probably won't stand as the Governor is technically the head of prosecution and would therefore have a conflict of interest with every case. I only skimmed the discussion a bit and searched for keywords, but I'm not sure how that can be true when we have an independently elected Attorney General. Unlike the unitary executive system of the Federal executive, where the President can fire the AG at will (see e.g. the other Nixon's Saturday Night Massacre), I don't think the state governor has any power over the AG's office besides I guess the same power to defund him that Nixon did to create this situation in the first place. Or I'm forgetting details perhaps never taught in 7th grade state level civics, back in the early-mid '70s.
  - Overtonwindow 10y ago
    You might be forgetting that the Governor has the authority to commute and pardon. As a defense council, that would give an unfair advantage. Not only that, the Judge would most likely overrule this as prejudicial to a jury. If that's not enough I wonder if there's a law forbidding an elected official from holding another appointed position. One more thing: Article IV section 2 of the Missouri Constitution says that the "governor shall take care that the laws are distributed and faithfully executed, and shall be a conservator of the peace throughout the state." Which would seem to conflict with the practice of defense council.
    - lukeschlather 10y ago
      People have a legal right to counsel. Also, people are innocent until proven guilty by a judge and jury. Your suggestion that serving as defense counsel would conflict with faithful execution of the laws or conserving the peace is sad. I'd say exactly the opposite is true. If there's a conflict of interest it's because the governor doesn't really want to faithfully execute the law, the governor wants to maximize convictions without regard for the law.
      - Overtonwindow 10y ago
        Hypothetically speaking, could the Governor acting as defense council not issue a pardon on the spot? I think you're being extremely naive to think the Governor can walk into court and act as defense council without a single worry.
Apocryphon 10y ago
Privilege escalation in our own judicial system? Well hacked.
mi100hael 10y ago
At this point I'm not surprised any time I see bad press about Jay Nixon. Thank god he's term limited.
generj 10y ago
Well, that's one way to draw attention to the issue. Well played Michael Barrett. Well played.
williamscales 10y ago
Gutsy. At the least it will look bad for Nixon if he withdraws from the case.
mkehrt 10y ago
Does anyone know if this section of Missouri law has ever been challenged under the Thirteenth Amendment's prohibition against involuntary servitude? It naively seems unlikely to me to survive. Or are there other precedents for forcing people to fill government roles?
- williamscales 10y ago
  Jury duty?
  - mkehrt 10y ago
    Good point.
  - vacri 10y ago
    Conscription. Edit: Weird that this is being voted down. Conscription is involuntary service by definition, and has been used by the US government within living memory.
    - DannyBee 10y ago
      No idea why you are being voted down. This is 100% on point, and in fact, AFAIK, the main source of non-slavery legal precedent on the 13th amendment.
- fatbird 10y ago
  It's likely a condition of being called to the bar in Missouri that you agree to be assigned cases by the public defender's office, subject to judicial review or some other escape clause.
- vkou 10y ago
  Conscription is legal under the 13th Amendment. (As is apparently being pressed into building roadways.) If you can be compelled to fight in a war, it doesn't seem unreasonable that you can be compelled to serve as a public defender. The thirteenth amendment was never intended to remove any power to enslave by the state.
jMyles 10y ago
Why the change in title? The previous one was better for showing how this is an interesting, novel event without being (IMO) too terribly click-baity.
- Kinnard 10y ago
  What was the previous title?
  - jMyles 10y ago
    I don't see a way to view the old title, so I'm not 100% sure, but it was something like, "Missouri governor cuts public defender funding, is appointed public defender."
    - Kinnard 10y ago
      Personally I find some of the "curation" on HN heavy handed
      - whamlastxmas 10y ago
        I would rather there be too much than too little. Reddit is impossible to use without frustration due to clickbait/misleading titles. Literally hundreds of times I have clicked to the comments section only to see nearly irrefutable evidence that the headline is completely wrong.
        Kinnard 10y ago
        I appreciate that. I do wish there were more transparency. Some changes made by moderators are just too mysterious.
        whamlastxmas 10y ago
        Dang has done a pretty good job in the past of commenting when he changes the title or removes dupes/unproductive comment threads. He doesn't always, though. Really we could use more transparency in the "weighting" they do for stories that have no-no keywords (like "NSA") but I can't imagine they'd ever do that.
themartorana 10y ago
It's a publicity stunt but it's brilliant. Public defender realities are grotesque, and people that can't afford a private attorney get hosed by default. John Oliver covered this crisis recently: https://m.youtube.com/watch?v=USkEzLuzmZ4 https://m.youtube.com/watch?v=USkEzLuzmZ4
- douche 10y ago
  I think Better Call Saul hit on how busted the public defender system is quite a bit in the first season.
  - notdonspaulding 10y ago
    Interesting though they may be, John Oliver and Better Call Saul are not documentaries. I hope nobody is seriously informing their political opinion based off shows from Netflix and HBO.
    - pitt1980 10y ago
      I hope people aren't seriously basing their political opinions off documentaries but I'm sure people do base their opinions off whatever appeals to their logic and emotions, in whatever medium it comes in
    - ZeroGravitas 10y ago
      Unless it's "The Wire", which should be required viewing for any voter.
    - robotmlg 10y ago
      Not totally relevant, but Better Call Saul isn't produced by Netflix, it just airs there outside the US.
    - wccrawford 10y ago
      I was quite into John Oliver for a few episodes, and then I started to realize how heavily he twists things to make them into a good show. It's still entertaining now, but I don't consider it a source of "news" at all now.
deleted 10y ago
[deleted]
NolF 10y ago
I had a quick look at the budget [0] and it would seem the public defender office has a larger budget [2016 $40m] than prosecution [2016 $35m]. Wouldn't a fair defence system have a similar budget to the prosecution? It would seem that they use about 157 FTEs more in the defence than prosecution. Granted I don't exactly know how these departments are layout but I thought that without a prosecutor you don't need a defence. So a 1:1 ratio would seem about fair, and being overwhelmed would be a case of inefficiencies in one department compared to another. [0] https://oa.mo.gov/sites/default/files/FY_2016_Executive_Budget_Download.pdf https://oa.mo.gov/sites/default/files/FY_2016_Executive_Budg...
- dmoy 10y ago
  Does a defense attorney get involved much earlier in the process than a prosecutor? If so strict #s of annual budget isn't a fair comparison.
- xenadu02 10y ago
  If you want to be fair you also need to include all police detectives in the prosecution's headcount, as the police do not and will not assist public defenders in research or evidence gathering. They work only for the prosecution. Public defenders also include the ad litem attorneys for children in family court.
- SmellTheGlove 10y ago
  Defense takes more resources than prosecution. The prosecution has the relative luxury of the police force doing its investigatory work - hard evidence, witness identification, etc. The defense gets discovery of a lot of that, but also has to do its own investigatory legwork regarding the facts, alibis, exculpatory evidence that wasn't turned over (or not investigated at all), friendly witnesses, etc. To make a 1:1 ratio work, you need to include the police resources used in the prosecution and allocate investigative resources to the public defenders office accordingly. PDs tend to be good lawyers, but you're boned if you need one. Again, it's not the legal skills, it's that they lack the resources to actually dig into your case, and the sorts of people who usually need a PD are also of a socioeconomic status that doesn't have the education or resources to do the legwork.
323454 10y ago
What a twist ending! I wonder if he intentionally made it so that the juicy bit was on the second page just to increase the antici pation
- ourmandave 10y ago
  <shiver>
exabrial 10y ago
I feel bad for the poor person that is at the receiving end of this lawsuit. Don't forget somewhere, there is an actual human being that is facing very real consequences. Giving all the racial issues Missouri has been facing... The lack of pd funding is terrible.
robalfonso 10y ago
I'd think the smell test for whether he can serve is no different than if a state governor can serve jury duty. The requirements for impartiality are similar. It looks like governors have served on jury duty as well https://www.washingtonpost.com/news/local/wp/2015/06/10/even-governors-have-jury-duty/ https://www.washingtonpost.com/news/local/wp/2015/06/10/even...
dzdt 10y ago
Chutzpah! I love it just for that if nothing else.
upofadown 10y ago
People are more than happy to have lot of laws and cheerfully fund the required law enforcement but when it comes to the requirement for public defenders to make the rest of the system work they just don't care for some reason.
- deleted 10y ago
  [deleted]

251 points by sea6ear 10y ago

Overtonwindow 10y ago

HRm. Well that's interesting but good luck. As Governor I would think he'd have a conflict of interest.

jessaustin 10y ago
I think that's up to the discretion of the trial judge? In many cases you'd expect trial judges to defer to the governor's wishes because corruption. However, the judges around here are always complaining that the courts don't get enough money, so they might have sympathy for the PD. Also, one would expect some of them are at least slightly in favor of justice, so it has to stick in their craw a bit when they see all the poor folks getting the five-minute-plea-bargain treatment.

aftbit 10y ago

Some interesting discussion is happening over on MetaFilter[1]. The uninformed opinion is that this is a great publicity stunt, but probably won't stand as the Governor is technically the head of prosecution and would therefore have a conflict of interest with every case. 1: http://www.metafilter.com/161399/Missouri-governor-appointed-as-a-public-defender-to-an-indigent http://www.metafilter.com/161399/Missouri-governor-appointed...

DannyBee 10y ago
Well, remember depending on the ethics rules of the state, the conflict may be waivable by the client :)
maxerickson 10y ago
It's interesting that so many people over there think this will be terrible for his career. His background is also interesting: http://www.mobar.org/esq/mar27/michael-barrett.htm http://www.mobar.org/esq/mar27/michael-barrett.htm His wife is the Executive Director of the Missouri Bar and he used to be a deputy lawyer in the governor's office. This could easily be a first step towards running for an elected position.
- throwaway729 10y ago
  It's entirely political. Else he'd have also sent letters to members of the bar in MO's general Assembly which is equally if not more to blame for the current situation. (And is, IME, a ridiculous embarrassment to the state...)
  - jessaustin 10y ago
    I'm sure he's got more cases to assign. If, after the inevitable delaying tactics, he can actually force the governor to do this, he'll have many more letters to send, and precedent will have been set. (At least, until the new legislative session starts in January.)
  - xenadu02 10y ago
    Actually the MO Assembly tossed them $4.5 million in additional funds, specifically to hire more ad litems in child abuse cases (the attorneys appointed by the court to represent the child directly). For some reason the governor's office has withheld $3.5 million of those funds (apparently that's a power the MO governor has?).
    - hga 10y ago
      It is, and I think it's rather common for states, and he's usually used it responsibly to keep the state's finances semi-sane. Don't know about this example, though. The US president used to be able to do this, Thomas Jefferson was the first in 1801 per Wikipedia (https://en.wikipedia.org/wiki/Impoundment_of_appropriated_funds https://en.wikipedia.org/wiki/Impoundment_of_appropriated_fu...), and it continued to help keep the US Federal budget a bit sane until in 1974 when the Nixon excuse was used, as it was for so much else, to completely change the way we did budgeting (and much else, like campaign financing, the primary system, etc.). As someone who's been there for the before and after, this was not an improvement, something that's going to be brought forcefully to everyone's attention when e.g. we are no longer viewed as the least worst place to stash your wealth.
    - throwaway729 10y ago
      > Actually the MO Assembly tossed them $4.5 million in additional funds ...and also cut $60M in tax revenue without matching spending cuts, taking the political win of lower taxes while forcing the governor to choose between screwing the state Kansas-style or else taking the political fall-out for spending cuts. Heads I win, tails you lose. It's all theater, and you're being duped if you think the legislature isn't at least equally responsible for MO's under-funding of p much everything. > apparently that's a power the MO governor has? Yes, it's actually for more common than not in state governments. See https://en.wikipedia.org/wiki/Line-item_veto_in_the_United_States#Governors https://en.wikipedia.org/wiki/Line-item_veto_in_the_United_S...
hga 10y ago
but probably won't stand as the Governor is technically the head of prosecution and would therefore have a conflict of interest with every case. I only skimmed the discussion a bit and searched for keywords, but I'm not sure how that can be true when we have an independently elected Attorney General. Unlike the unitary executive system of the Federal executive, where the President can fire the AG at will (see e.g. the other Nixon's Saturday Night Massacre), I don't think the state governor has any power over the AG's office besides I guess the same power to defund him that Nixon did to create this situation in the first place. Or I'm forgetting details perhaps never taught in 7th grade state level civics, back in the early-mid '70s.
- Overtonwindow 10y ago
  You might be forgetting that the Governor has the authority to commute and pardon. As a defense council, that would give an unfair advantage. Not only that, the Judge would most likely overrule this as prejudicial to a jury. If that's not enough I wonder if there's a law forbidding an elected official from holding another appointed position. One more thing: Article IV section 2 of the Missouri Constitution says that the "governor shall take care that the laws are distributed and faithfully executed, and shall be a conservator of the peace throughout the state." Which would seem to conflict with the practice of defense council.
  - lukeschlather 10y ago
    People have a legal right to counsel. Also, people are innocent until proven guilty by a judge and jury. Your suggestion that serving as defense counsel would conflict with faithful execution of the laws or conserving the peace is sad. I'd say exactly the opposite is true. If there's a conflict of interest it's because the governor doesn't really want to faithfully execute the law, the governor wants to maximize convictions without regard for the law.
    - Overtonwindow 10y ago
      Hypothetically speaking, could the Governor acting as defense council not issue a pardon on the spot? I think you're being extremely naive to think the Governor can walk into court and act as defense council without a single worry.

Apocryphon 10y ago

Privilege escalation in our own judicial system? Well hacked.

mi100hael 10y ago

At this point I'm not surprised any time I see bad press about Jay Nixon. Thank god he's term limited.

generj 10y ago

Well, that's one way to draw attention to the issue. Well played Michael Barrett. Well played.

williamscales 10y ago

Gutsy. At the least it will look bad for Nixon if he withdraws from the case.

mkehrt 10y ago

Does anyone know if this section of Missouri law has ever been challenged under the Thirteenth Amendment's prohibition against involuntary servitude? It naively seems unlikely to me to survive. Or are there other precedents for forcing people to fill government roles?

williamscales 10y ago
Jury duty?
- mkehrt 10y ago
  Good point.
- vacri 10y ago
  Conscription. Edit: Weird that this is being voted down. Conscription is involuntary service by definition, and has been used by the US government within living memory.
  - DannyBee 10y ago
    No idea why you are being voted down. This is 100% on point, and in fact, AFAIK, the main source of non-slavery legal precedent on the 13th amendment.
fatbird 10y ago
It's likely a condition of being called to the bar in Missouri that you agree to be assigned cases by the public defender's office, subject to judicial review or some other escape clause.
vkou 10y ago
Conscription is legal under the 13th Amendment. (As is apparently being pressed into building roadways.) If you can be compelled to fight in a war, it doesn't seem unreasonable that you can be compelled to serve as a public defender. The thirteenth amendment was never intended to remove any power to enslave by the state.

jMyles 10y ago

Why the change in title? The previous one was better for showing how this is an interesting, novel event without being (IMO) too terribly click-baity.

Kinnard 10y ago
What was the previous title?
- jMyles 10y ago
  I don't see a way to view the old title, so I'm not 100% sure, but it was something like, "Missouri governor cuts public defender funding, is appointed public defender."
  - Kinnard 10y ago
    Personally I find some of the "curation" on HN heavy handed
    - whamlastxmas 10y ago
      I would rather there be too much than too little. Reddit is impossible to use without frustration due to clickbait/misleading titles. Literally hundreds of times I have clicked to the comments section only to see nearly irrefutable evidence that the headline is completely wrong.
      - Kinnard 10y ago
        I appreciate that. I do wish there were more transparency. Some changes made by moderators are just too mysterious.
        whamlastxmas 10y ago
        Dang has done a pretty good job in the past of commenting when he changes the title or removes dupes/unproductive comment threads. He doesn't always, though. Really we could use more transparency in the "weighting" they do for stories that have no-no keywords (like "NSA") but I can't imagine they'd ever do that.

themartorana 10y ago

It's a publicity stunt but it's brilliant. Public defender realities are grotesque, and people that can't afford a private attorney get hosed by default. John Oliver covered this crisis recently: https://m.youtube.com/watch?v=USkEzLuzmZ4 https://m.youtube.com/watch?v=USkEzLuzmZ4

douche 10y ago
I think Better Call Saul hit on how busted the public defender system is quite a bit in the first season.
- notdonspaulding 10y ago
  Interesting though they may be, John Oliver and Better Call Saul are not documentaries. I hope nobody is seriously informing their political opinion based off shows from Netflix and HBO.
  - pitt1980 10y ago
    I hope people aren't seriously basing their political opinions off documentaries but I'm sure people do base their opinions off whatever appeals to their logic and emotions, in whatever medium it comes in
  - ZeroGravitas 10y ago
    Unless it's "The Wire", which should be required viewing for any voter.
  - robotmlg 10y ago
    Not totally relevant, but Better Call Saul isn't produced by Netflix, it just airs there outside the US.
  - wccrawford 10y ago
    I was quite into John Oliver for a few episodes, and then I started to realize how heavily he twists things to make them into a good show. It's still entertaining now, but I don't consider it a source of "news" at all now.

deleted 10y ago

[deleted]

NolF 10y ago

I had a quick look at the budget [0] and it would seem the public defender office has a larger budget [2016 $40m] than prosecution [2016 $35m]. Wouldn't a fair defence system have a similar budget to the prosecution? It would seem that they use about 157 FTEs more in the defence than prosecution. Granted I don't exactly know how these departments are layout but I thought that without a prosecutor you don't need a defence. So a 1:1 ratio would seem about fair, and being overwhelmed would be a case of inefficiencies in one department compared to another. [0] https://oa.mo.gov/sites/default/files/FY_2016_Executive_Budget_Download.pdf https://oa.mo.gov/sites/default/files/FY_2016_Executive_Budg...

dmoy 10y ago
Does a defense attorney get involved much earlier in the process than a prosecutor? If so strict #s of annual budget isn't a fair comparison.
xenadu02 10y ago
If you want to be fair you also need to include all police detectives in the prosecution's headcount, as the police do not and will not assist public defenders in research or evidence gathering. They work only for the prosecution. Public defenders also include the ad litem attorneys for children in family court.
SmellTheGlove 10y ago
Defense takes more resources than prosecution. The prosecution has the relative luxury of the police force doing its investigatory work - hard evidence, witness identification, etc. The defense gets discovery of a lot of that, but also has to do its own investigatory legwork regarding the facts, alibis, exculpatory evidence that wasn't turned over (or not investigated at all), friendly witnesses, etc. To make a 1:1 ratio work, you need to include the police resources used in the prosecution and allocate investigative resources to the public defenders office accordingly. PDs tend to be good lawyers, but you're boned if you need one. Again, it's not the legal skills, it's that they lack the resources to actually dig into your case, and the sorts of people who usually need a PD are also of a socioeconomic status that doesn't have the education or resources to do the legwork.

323454 10y ago

What a twist ending! I wonder if he intentionally made it so that the juicy bit was on the second page just to increase the antici pation

ourmandave 10y ago
<shiver>

exabrial 10y ago

I feel bad for the poor person that is at the receiving end of this lawsuit. Don't forget somewhere, there is an actual human being that is facing very real consequences. Giving all the racial issues Missouri has been facing... The lack of pd funding is terrible.

robalfonso 10y ago

I'd think the smell test for whether he can serve is no different than if a state governor can serve jury duty. The requirements for impartiality are similar. It looks like governors have served on jury duty as well https://www.washingtonpost.com/news/local/wp/2015/06/10/even-governors-have-jury-duty/ https://www.washingtonpost.com/news/local/wp/2015/06/10/even...

dzdt 10y ago

Chutzpah! I love it just for that if nothing else.

upofadown 10y ago

People are more than happy to have lot of laws and cheerfully fund the required law enforcement but when it comes to the requirement for public defenders to make the rest of the system work they just don't care for some reason.

deleted 10y ago
[deleted]