Two Courageous Defenders
Attorney ethics require a chief defender to have the backs of their defenders when it comes to excessive workloads. The Ten Principles, the ABA Formal Opinion 06-441, and the Eight Guidelines all make it quite clear that the chief defender has discrete obligations when she learns that her public defenders’ workloads are excessive. That’s been the case for the last two decades anyway.
Nationwide workloads are excessive. Yet for the last four decades public defender workloads have been excessive. Really since Gideon. Task Forces are formed to address the problem. Reports are issued periodically noting this fact. Reforms are called for. Attorneys burn out. Some retire. Clients are harmed. Nothing changes.
That brings us to two courageous defenders. First there is Michael Barrett. A few days ago, Michael Barrett, who replaced Cat Kelly as the head of the Missouri Public Defender system, got fed up with the situation. A lawsuit had been filed and won by Cat Kelly. Money was allotted by the legislature only to be vetoed by the Governor. A major study was conducted using unimpeachable methods demonstrating the need for additional resources to fund the Missouri public defender system. That study called recognized that 270 more lawyers were needed in order to meet the needs of the system. Most recently, the legislature gave the Missouri system an additional $4.5 million. Governor Nixon, a Democrat and former Attorney General in a bright red state, again took measures into his own hands and kept $3.5 million for other needs.
So what did this courageous defender do? First of all, he and the Commission overseeing the system sued the Governor. Then, he utilized a little used provision of state law and appointed Governor Nixon to a case. He noted that Missouri pubic defense was funded at the second worst level in the nation. He said at the time, “However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it.” Rumor has it that it is an assault case. Nixon himself has said that he’s not doing it. Not showing up. Not opening a file. Pity—first-hand experience can sometimes result in empathy.
Many of you are saying to yourselves, well that’s the end of Michael Barrett. The Governor must have fired him, right? But no, as fortune would have it, the Missouri Public Defender system is in the Judicial Branch. That Branch too is getting screwed by the Governor. So, Michael Barrett’s position seems to be secure, thank you very much. And his courageous act is getting attention nationwide. For more on the situation, see the Sixth Amendment Center’s excellent blog:
Next there is Nick White. Nick White was the chief defender in Houston County, Georgia. He had been there for 9 years and by all accounts, he ran an excellent office. His office is one of 6 “opt-out” counties in Georgia, meaning that it’s not part of the Georgia public defender system. Instead, it’s on its own, funded and overseen by the Houston County Commission.
Nick White’s staff began to tell him that they were overloaded. He studied the situation and discovered that they had too many cases. As the head of the office, he went to the county and asked for more resources. By all accounts, Nick White is persistent, and his many emails prove the point. He was unrelenting in asking for more relief for his lawyers.
On August 2, Nick White was terminated. It wasn’t for cause. According to the County Commission, he was terminated in order to “go in a different direction.”
White had no bad evaluations. White was given no performance reviews telling him to improve. White was given no reason whatsoever for his termination. Nick White, however, says he knows why he was fired. It was because he recognized that his attorneys had too many cases and he asked for more resources from the county. In other words, under Rule 5.1 of the Model Rules and ABA Formal Opinion 06-441, Nick White did exactly what his ethical obligations require. And for that, he was fired.
Did Nick White ever think about his career when he kept demanding more resources? When he was warned that he needed to go along and get along, did he consider what the future might hold? This chief defender did what we hope we would all do: he did what was right and demanded that his attorneys be given enough resources to represent their clients within the bounds of the Constitution.
What can we learn from this? Independence of the public defense function is vital. I have immense respect for Michael Barrett and Nick White. These two courageous leaders stood up for what is right, had their attorneys’ backs, and demanded that the powerful fund their system. That’s one thing I learned. Another is the importance of the independence of the public defense function. It is vital that those who lead our public defender systems have protection from the machinations of politics so that they are free to identify the needs of their systems and ask for sufficient resources to fund them.
Funders are going to continue to treat us like pack mules until something changes. One other lesson I learned is that the more things change the more they stay the same. Reports come and reports go. Public defenders remain the pack mules of the criminal justice system. Politicians are going to continue to pass laws that require more and more attorneys, but they are going to be reluctant to fund those new laws. And there are public defense leaders out there, like Michael Barrett and Nick White, who will stand up and demand change. And ultimately, they will prevail. And our clients are and will be the better for it.