The Civil Rights Division of the Department of Justice has released its findings on the family court in St Louis County, Missouri.  The findings are simple; the system is flawed.   A flawed justice system is nothing new and similar findings could probably be issued on any number of courts, juvenile and adult, throughout Missouri.  The Department of Justice believes the flawed system can be fixed, but no system can ever be fixed if it is not adequately staffed.  The children who face delinquency charges in St. Louis County are represented by one attorney from the Missouri State Public Defender System (MSPD).  MSPD is chronically understaffed and underfunded.  Most of the issues the Department of Justice identified can be addressed by a defense team that has the time and capacity to litigate the flawed system on behalf of the children. 

When MSPD informed the courts and the state legislature that they were unable to provide legal services to all who were eligible and that it could not accept any more cases, the legislature’s response was to essentially prohibit the refusal of cases.  As a result the one MSPD attorney assigned to St. Louis County Juvenile Court was unable to refuse the almost 400 juvenile cases she handled in one year. 

The Missouri Supreme Court told defenders that “a judge may not appoint counsel when the judge is aware that, for whatever reason, counsel is unable to provide effective representation to a defendant.”  State ex rel. Missouri Pub. Defender Comm'n v. Waters, 370 S.W.3d 592, 607 (Mo. 2012).  The judges in St. Louis County Family Court must have believed that representing 400 children in one year was effective enough.  Is the Department of Justice now going to leave to those same judges the task of reducing public defender caseloads?

MSPD is totally dependent on the state legislature for funding of additional attorneys.  This funding system leaves the St. Louis County Family Court only one method to reduce public defender caseloads.  The Court must assign cases to private counsel, and, according to the department’s recommendations, train those private counsel in juvenile law.  Who do we want to trust with choosing and training the children’s attorneys?

I have had the pleasure of working with the workhorse attorney who handled those 400 cases.  She is a skilled advocate who has devoted her legal career to the defense of the poor.  I wonder what options she has.  Can she just say no?  If she does who will come to her defense?  And what about the 350 other attorneys in MSPD who struggle with the same caseloads?  Litigation in state courts has provided little relief to MSPD.  If the Department of Justice is interested in addressing the children’s meaningful access to counsel they need to work with MSPD now to obtain the funding that is essential to that meaningful access.