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Missouri State Public Defender: Letter to Governor [pdf] (mo.gov)
251 points by sea6ear on Aug 4, 2016 | hide | past | web | favorite | 77 comments

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...

It's interesting that so many people over there think this will be terrible for his career.

His background is also interesting:


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.

I think he's got my vote. I'm always glad to vote for someone who's not a prosecutor. Seeing Hawley win the AG nomination yesterday was almost enough to make up for the "I'm not a politician but I like to blow shit up" mini-Trump winning the governor nomination. After two terms of a Democrat governor, Missourians will feel like a change, so I expect that goofball to win easily.

I was not aware of the ridiculous budget cuts to the PD office. I'll be contacting my legislators...

I haven't followed the Hawley story, not a resident. Are there objective criticisms of him? Frankly I'm happy to see more independent leaning candidates take office and weaken to the two moronic parties.

The Hawley-Schaefer contest was notable for its inventively awful attack ads. My biggest criticism of Hawley would be the millions of dollars he accepted from unknown parties to run those ads, so it isn't clear how independent he is. Schaefer criticized Hawley for writing amicus curiae briefs for "accused terrorists", but I think that's a perfectly valid thing for a law professor to do.

My animus toward prosecutors seeking office is perhaps a sort of personal idiosyncrasy, but I figure that someone who is comfortable sending drug users to prison is someone without an ethical core. It is entirely possible to work as an attorney without doing that, but recently it seems like that's the primary route that people take to elective office. I'd like to break the dynamic that encourages ambitious politicians to send poor folks to prison in exchange for "tough on crime" electoral bona fides.

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...)

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?).

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_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.

> 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_S...

The letter states that the legislature approved funding; the governor vetoed it.

The legislature approved funding but also passed $60M in tax breaks without matching spending cuts. Nixon then cut this (and 130 other) budget line items in an attempt to balance the now-much-smaller budget [1].

The legislature is just as complicit in the current situation as Nixon. You don't get to slash taxes and then complain that it's someone else's fault that there's no money for critical programs.

[1] http://www.stltoday.com/news/local/govt-and-politics/less-ne...

Would you happen to have a roll call for those who voted for the tax cuts?

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.)

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.

The Governor is still the supreme executive, and the prosecutorial power is in the executive branch. The Attorney General is elected, but he's overseeing some work of the executive branch -- like the State Auditor or Secretary of State.

Gov. Nixon's conflict, of course, ends after another +/- 150 days. I bet the defendant can get a short extension, if he wants this lawyer -- and if he's free on bail, Jay Nixon is probably a better choice than another random Missouri lawyer.

Of course, the Governor could pardon Defendant if he thought he was innocent. (That's probably another layer of conflict of interest under the ethics rules.)

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.

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.

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.

If his client was found guilty, or took a plea bargain, and he then didn't issue a pardon, he'd be making an implicit statement that he thinks the defendant was indeed guilty....

Whatever the Constitutional issues, it's messy for sure, although as noted he could take on the case after he steps down, he just won't be able to spend as much time with his family ^_^.

Well, remember depending on the ethics rules of the state, the conflict may be waivable by the client :)

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

I think Better Call Saul hit on how busted the public defender system is quite a bit in the first season.

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.

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

Unless it's "The Wire", which should be required viewing for any voter.

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.

Not totally relevant, but Better Call Saul isn't produced by Netflix, it just airs there outside the US.

Privilege escalation in our own judicial system? Well hacked.

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.

What was the previous title?

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."

Personally I find some of the "curation" on HN heavy handed

What's worse is that in this case there is no title to the document. The one the mod changed it to is just as made up as the original one. In a way, one could view this title as an anti-clickbait title to keep people away from the topic, which is a very political move.

I'm sad about it . . . But I agree.

In any case, it looks like the title has been changed again.

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.

I appreciate that. I do wish there were more transparency. Some changes made by moderators are just too mysterious.

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.

If that's true, it's creepy, scary, and disappointing. I wasn't aware that there were "no-no keywords". I hope it's not true.

Dang has discussed it himself and even specifically mentioned NSA as one of the keywords. He frames the "weighting" as a way to prevent subjects that get highly upvoted very quickly from overwhelming the front page. The issue here obviously is that this does artificially lower the ranking of select posts, and they're the ones choosing the keywords.

I think it's bullshit, but whatever, it's their site.

It's disturbing for obvious reasons. You're right . . . it is their site.

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

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



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_Budg...

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.

I followed up on Digory's comment and found prosecution budget has an additional 43.8m from county budgets. And that doesn't account for the efficiencies of the PD doing the investigation work for them... a 1:2 ratio hardly seems just

Not to mention that the defendant usually cannot do the legwork from inside a cell.

And the guy that needs the PD probably isn't making bail, either.

It's far more lopsided than it appears in those numbers.

In Missouri, most prosecutions are handled by a county's Prosecuting Attorney's office, which are funded by each county's budget (largely property taxes).

There are 115 counties, including St. Louis. In larger counties, those offices will have 150 employees and $10 million budgets. The counties sometimes pay for office space for the Public Defender, but they're not paying salaries. The $35 million for Prosecution Services in the state budget is to fund a small office that helps coordinate the county efforts statewide, and helps prosecutors in small counties who are overwhelmed by unexpectedly complex cases.

So the $40 million for defense state wide, which will be dwarfed by the combined budgets of the Attorney General and county prosecutors.

That's very informative. I had a quick look online and found a tabulated by county for 2015 prosecution budgets 43.8m at the county level [0]. Which basically prosecution would have double the budget plus the work of the local PDs etc.

[0] https://fusiontables.google.com/DataSource?docid=1NURUkUA8qQ...

I read your table as 60m in county budgets, and another 16m+ in "other" (which is not necessarily the state budget). So to get the magnitude right, you'd take budgets for police + 75m for prosecutors at the county level, plus the state-level budgets of the Attorney General, Prosecution Services, and the Highway Patrol (which operates as our state police as well as a bureau of investigation).

That's not to say that 1:1 parity is necessary or desirable for real justice. But it's misleading to compare just the state level budgets and assume it's even roughly equal.

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.

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.

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.

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

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

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


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

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.

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.

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?

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.

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.

> Does anyone know if this section of Missouri law has ever been challenged under the Thirteenth Amendment's prohibition against involuntary servitude?

Being subject to the provision of law at issue is something people voluntarily accept when they apply for a license to practice law in the state, and for which they receive benefits not available to the general public in exchange.

> Or are there other precedents for forcing people to fill government roles?

Yes, specifically within the judicial system, even. See, e.g., jury duty, which does apply to the general citizenry.

You'd lose pretty quickly.

Supreme court precedent on this is actually pretty clear, and it comes down to "pretty much nothing but actual slavery is considered involuntary servitude".

See, e.g, Arver v. United States (the involuntary military draft is not a 13th amendment violation).

If the military draft is not a 13th amendment violation, i think you are going to have a pretty weak argument having to defend some guy in court is.

It's voluntary. He could have chosen not to join the State Bar. Actually, I'm a little surprised the governor keeps an active law license. I went inactive in my two states of licensure when I went back to tech.

You could give up being a lawyer. A slave can't give up being a slave.

You can't give up being a military-age male, when it comes to the draft.

> You can't give up being a military-age male, when it comes to the draft.

Right, you can't quit the militia, as that term is understood in the interpretation of the Constitution, and there is an express Constitutional power of the federal government to call up the militia.

OTOH, the existence of that express Constitutional power and the long-understood Constitutional meaning of "militia" means that military conscription isn't a good reference point for the Constitutionality of any other type of mandatory public service.

Amendments are supposed to change the Constitution. Why does the original document supercede the amendment? Why even have amendments, if the unamended document takes precedence?

You can shoot yourself in the foot or try to be a conscientious objector, I suppose.

That's only because of policy - there is no legal backing for, or against it. The policy's only in place because there's no shortage of able-bodied men.

Once things get grim enough, the army will take anyone. Towards the end of the second world war, the Germans were drafting children and old men.

Jury duty?


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.

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.

Good point.

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

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