Missouri governor appointed as a public defender to an indigent
August 3, 2016 3:19 PM   Subscribe

As authorized by law, the director of the Missouri State Public Defender office just used his authority to appoint the state's governor, Jay Nixon, as public defender counsel to an indigent. The director is authorized to appoint *any* member of the state bar to represent indigent defendants as a public defender; Jay Nixon is a member of the Missouri bar. This move is the latest in a battle over the governor's big cuts to the public defender department: $3.5 million cut from a $4.5 million budget, leaving the public defender system unable to provide anything other than brief, cursory counsel, which may not meet the requirements of the law.
posted by Mo Nickels (62 comments total) 49 users marked this as a favorite
 
This....I get where he's coming from, but this seems like not a good precedent to set.
posted by corb at 3:21 PM on August 3, 2016 [6 favorites]


Your move Gov.
posted by AugustWest at 3:23 PM on August 3, 2016 [4 favorites]


Haha this is a total fuck you move. Hopefully the guy can retire because after this passes you can guarantee that the Governor will be vindictive as fuck.

Still it must be nice to be able to pull off a stunt like this.
posted by vuron at 3:29 PM on August 3, 2016 [64 favorites]


Yeah, I am feeling like the person who got Nixon assigned as his lawyer is going to be screwed, no matter how this ends up. I understand the impetus that led to this, but using poor people's lives as fodder for your power play is a crappy governing tactic.
posted by holyrood at 3:31 PM on August 3, 2016 [9 favorites]


This sounds brilliant to me. I am so sick of a justice system that only functions for defendants wealthy enough (in money or social networks) to hire private attorneys. I hope this ploy works.
posted by Bella Donna at 3:32 PM on August 3, 2016 [24 favorites]


I don't think the person who got Nixon assigned as his lawyer is screwed; all eyes are now on that case. I do think that this director just torpedo'd his career.

Still. This is a fucking fabulous way to bring attention to an otherwise easy-to-overlook issue. Kudos to this director, for sacrificing his career to bring needed funds and justice.
posted by samthemander at 3:40 PM on August 3, 2016 [84 favorites]


What are the chances that Gov. Nixon is actually competent to be defense counsel in a criminal case … let alone while also, y'know, being governor? When's the last time he represented anyone in a criminal case?

Also, as chief executive of the state, doesn't he get to command the PD's office to make a different assignment? I could maybe see a court using its inherent authority to force the governor to fulfill his public service obligations as a member of the bar — and even then it's a pretty difficult argument, given that he's doing so by currently being governor. (If he were just an ex-governor, that'd be much simpler.)

But his subordinate forcing him to do so?


And … the chances of the poor sap who got him as an assigned public defender getting good representation seem slim to none, unless the prosecution (… who, let's remember, also works for the governor, so that's an inherent conflict of interest) just bails on negotiating a plea deal with an opposing counsel who is also their boss.
posted by saizai at 3:43 PM on August 3, 2016 [3 favorites]


I would think that, as head of the exec branch, he'd be conflicted out? On everything?
posted by jpe at 3:50 PM on August 3, 2016 [2 favorites]


Funny and gutsy. But of course the Governor can't represent the defendant (whoever the defendant is), as the Governor has a conflict. This is merely a clever way of bringing public attention to the funding problem.
posted by sheldman at 3:50 PM on August 3, 2016 [12 favorites]


As it says in the linked article, the public defender department is part of the judiciary branch, not the legislative branch. So the director of the public defender department isn't an employee of Jay Nixon's.
posted by Mo Nickels at 3:51 PM on August 3, 2016 [3 favorites]


@Mo Nickels The prosecution is part of the executive. The governor is the head of it.

So… still a conflict.
posted by saizai at 3:55 PM on August 3, 2016 [2 favorites]


A super-fast survey of the PD appointment rules and rulings in Missouri suggest that, no, Nixon can't withdraw, unless he is over 70 and retired, is in ill health, has already PD'd twice this year, has had his license suspended, has a conflict of interest, or has failed to complete his continuing legal education hours, or is a prosecutor or sitting judge. Unfamiliarity with the types of cases or courts in question is NOT a reason to beg off (which is generally the case in states that allow appointment of private attorneys as PDs -- Texas has had capital cases overturned because it appointed private lawyers with NO familiarity with criminal court as defense attorneys in capital cases, and the attorneys provided such incompetent counsel the verdict was not allowed to stand).

Can't guarantee this is comprehensive or up-to-date, but it's a GREAT gambit by the PD's office and is, at the very least, super-awkward for Nixon, even if the court allows him to withdraw. It would help if we knew what the case was -- he's probably no more incompetent than many other appointed lawyers defending misdemeanors, but he shouldn't be let loose on a felony obviously. I'd guess the seriousness of the offense and consequences for the defendant probably will control whether a judge dismisses it out of hand or whether a judge makes Nixon's life uncomfortable for at least a while.

Be pretty great to watch Nixon paying tens of thousands of dollars for attorney malpractice attorneys to argue he shouldn't have to go to court, while refusing to fund the PD's office, and spending thirty times what an appointed PD would get paid in Missouri to NOT do the work.

Judges can also order the state to pay minimum amounts to fund necessary functions that they're obligated by law to provide, which theoretically could be another outcome here -- or Nixon's refusal to serve could provide factual evidence for a lawsuit to get the PD's office funded. (Around 85% of Illinois's budget is currently being paid under court orders that Illinois is required by law to pay for shit and can't refuse to pay it just because it's totally nonfunctional as a state, has no budget, and the governor would rather not pay for shit he's legally obligated to pay for.)
posted by Eyebrows McGee at 4:03 PM on August 3, 2016 [49 favorites]


No, @sazai. RTFA. Director of the Missouri Public Defender office Michael Barrett: "We’re an independent department within the third branch of government, the judiciary. I don’t think the Governor’s withhold authority gives him an excuse to reach across to a co-equal branch of government and essentially weaken that branch because revenues are down."
posted by Mo Nickels at 4:09 PM on August 3, 2016 [2 favorites]


Sorry, you're talking about a separate conflict of interest. Got it. You're right.
posted by Mo Nickels at 4:10 PM on August 3, 2016 [3 favorites]


This is so fucking glorious.

Yeah, I am feeling like the person who got Nixon assigned as his lawyer is going to be screwed, no matter how this ends up.

But it makes no functional difference. This person was screwed anyway. Like, ranked 49th in the nation in terms of efficacy screwed.
posted by DarlingBri at 4:19 PM on August 3, 2016 [32 favorites]


I wonder what percentage of the Missouri legislature are also lawyers? It's usually a pretty high percentage in most states.
posted by ivan ivanych samovar at 4:25 PM on August 3, 2016 [6 favorites]


This is so beautiful.

For more regarding Jay Nixon, from almost exactly two summers ago, check out Tef Poe's diss track (NSFW, it perhaps goes without saying, but glorious).
posted by limeonaire at 4:29 PM on August 3, 2016 [2 favorites]


He might be inexperienced, but compared to a hideously underfunded PD department, it might be a wash; he's only got the one case, that's less than a clinic student.
posted by Bulgaroktonos at 4:31 PM on August 3, 2016 [6 favorites]


My understanding is that it's an assault case.
posted by Carillon at 4:39 PM on August 3, 2016


I love the spirit of this.
posted by Oyéah at 4:52 PM on August 3, 2016 [2 favorites]


The funniest thing about it is that there's an easy out for the governor; just actually represent the client! Then you look good instead of bad - you can say that you're doing your part to take some of the load and reduce costs, it makes you look like a good sport, and it completely sucks the energy out of the move. He can make you do it again, but only twice, before you can start to refuse on the basis of having already done two cases that year and because you need time to actually be governor. Hell, even if you mess up / do a poor job, you can blame it on the PD director for picking someone who doesn't specialize in criminal law.

Of course, I'm sure he won't actually do it (unless forced to, and I'm sure he'll be dragging his heels all the way), because that would take work and humility and other things not in force in a republican governor.
posted by Mitrovarr at 4:59 PM on August 3, 2016 [15 favorites]


Isn't it against federal law to under-fund, or de-fund programs that ensure Americans get the rights guaranteed them in the constitution? Couldn't the courts force the state to fund the PD program the way they sometimes have to force the legislatures to fund schools? Yes Kansas, I'm looking at YOU. In any case, I think this is an excellent strategy to bring much needed attention to the appalling situation in Missouri. Democrats/Liberals/Progressives need to do more of this type of thing to showcase the atrocities of "austerity"- tea party - "I Hate Government" policies.
posted by pjsky at 5:15 PM on August 3, 2016 [1 favorite]


pjsky, there are groups that are raising that argument. The ACLU chapter in New York City did, and won (a settlement). The problem, of course, is that no one is really funding that kind of civil social justice litigation either (and the ACLU chapters already have their hands full in most states with abortion, etc.).

Baller move, but holy cow a $3.5 million dollar cut (making the entire PD budget for the STATE 1 million dollars?) is extremely mind boggling. Am I misreading that somehow?? That's like 30 attorneys for an entire state, assuming no administrative costs, investigators, secretaries, or HR).
posted by likeatoaster at 5:31 PM on August 3, 2016 [5 favorites]


Of course, I'm sure he won't actually do it (unless forced to, and I'm sure he'll be dragging his heels all the way), because that would take work and humility and other things not in force in a republican governor.

Jay Nixon is a Democrat. Which of course does not absolve him, and makes the clear disregard for the problems affecting the poor that much more hypocritical.
posted by joechip at 5:40 PM on August 3, 2016 [23 favorites]


Yeah, I am feeling like the person who got Nixon assigned as his lawyer is going to be screwed, no matter how this ends up.

Well, if Nixon can't get an acquittal, he can always pardon the defendant.
posted by Uncle Ira at 8:00 PM on August 3, 2016 [17 favorites]


"And … the chances of the poor sap who got him as an any Missouri assigned public defender getting good representation seem slim to none,"

FTFY
posted by happyroach at 8:04 PM on August 3, 2016 [5 favorites]


I've read that PDs spend 1 hour per case, while sure it's more for felony cases so somehow I don't think the governor will be overworked. I think the defendant lucked out. High profile, I'd guess the government will do a better than average job.
posted by sfts2 at 8:55 PM on August 3, 2016 [1 favorite]


Agreed -- the person the Governor's been assigned to represent is about to get a better deal than they otherwise would, while the PD gets to vividly point out that decisions about cutting services to provide essential human rights are not fun abstractions about austerity. Making abstractions specific almost always strikes me not just as good poltiics but good humanism -- because it pushes arguments from abstract principles to real lives, which is often a great path to empathy. Speaking of actual lives, btw, it is sort of remarkable that the PD here used to be Deputy GC *to* Governor Nixon (http://www.mobar.org/esq/mar27/michael-barrett.htm). I wonder how that relationship went. Bonus fun fact: He's married to the head of the state bar.
posted by SandCounty at 9:22 PM on August 3, 2016 [7 favorites]


Jay Nixon isn't just a Democrat, he's one of the leaders of Hillary Clinton's campaign in Missouri. His communications director left a couple of weeks ago to become a deputy chief of staff for Hillary's national campaign.

This is a pretty smartly timed attention-focusing move, is what I'm saying. You can imagine Hillary's people on the phone, right now, telling Nixon to make this go away fast.
posted by mediareport at 9:47 PM on August 3, 2016 [12 favorites]


Things like this and the post about the woman sent to pants without pants keep hope alive.

Please proceed, Governor.
posted by guiseroom at 9:59 PM on August 3, 2016 [1 favorite]


I'm not 100% sure there is a formal conflict of interest:

(1) The interest of a prosecutor, technically speaking, is not in a conviction. It is in justice. That is why it is unethical for a prosecutor to bring a case against someone he believes to be innocent, whereas a defense attorney can defend someone whom he believes to be guilty.

(2) Nixon doesn't represent the state in legal proceedings nor does he receive any particular benefit contingent on the outcome of the case. In other words, even if the state's interest is in conviction, it's not completely clear that Nixon's interest is identical with the state's or that he has an independent interest in a conviction.

(3) Even if there is a conflict, it's probably waivable by the defendant with full disclosure.

There probably isn't adequate precedent to figure out what the outcome would be in advance, but it's interesting to think about. If state law legally compels Nixon to serve if chosen, he could probably also offer that as a defense if anyone brought an ethics case against him before the state bar. The bar is not going to take the position that complying with a legal order is an ethics violation.
posted by praemunire at 10:10 PM on August 3, 2016 [4 favorites]


Perhaps this has been answered and I missed it, and in that case I apologize, but is the prosecutors office under the governor/executive branch or the judicial? If it is under the executive wouldn't it be problematic to be essentially against their ultimate boss?
posted by Carillon at 10:30 PM on August 3, 2016


Couldn't the courts force the state to fund the PD program the way they sometimes have to force the legislatures to fund schools?

My not-a-lawyer understanding is no. The judicial branch can not order the other two branches to give them money. They can say that individual cases are invalid because defendants aren't getting competent representation, or simply not proceed with trials. Sadly the end result is likely more low income unconvicted defendants sitting in jail waiting their day in court. Theoretically you have a right to a speedy trial but the meaning is vague and state governments get away with a lot of abuse.
posted by mark k at 10:53 PM on August 3, 2016


Could they just say "We're out of money, anyone arrested for the following offences will be immediately set free without charges being laid" and just refuse to accept anything but the worst 25% of crimes? (Figure based roughly on size of budget cut.)
posted by No-sword at 11:38 PM on August 3, 2016 [3 favorites]


What are the chances that Gov. Nixon is actually competent to be defense counsel in a criminal case … let alone while also, y'know, being governor? When's the last time he represented anyone in a criminal case?

Well, he's been governor for 8 years, but before that he was state Attorney General for sixteen years (four terms) and his official bio brags about arguing cases during that period. So yeah, he might be a little rusty on his criminal defense skills, but he's successfully handled much bigger cases semi-recently and he should have a few friends who can help him smooth over any current rusty spots.

Given the egos involved, I don't think we're going to get any "Oh, no, I'm just not qualified to handle this case" type arguments from the gov.
posted by flug at 11:45 PM on August 3, 2016 [2 favorites]


Jay Nixon isn't just a Democrat, he's one of the leaders of Hillary Clinton's campaign in Missouri.

Hopefully Nixon pulls a Trump, tries to bail out, and he gets pulled into the justice system he and his friends helped create through a felony contempt of court beef. It would help put the public's current offerings in stark relief, at the very least.
posted by a lungful of dragon at 12:08 AM on August 4, 2016 [1 favorite]


"The judicial branch can not order the other two branches to give them money."

Yeah, they totally can. It's how Illinois functions! But in general, yes. Courts can order action by any branch and typically only the legislature has the ability to levy taxes or other fees, but their costs are most often executive or judicial. Not all that many state expenses are legislative.
posted by Eyebrows McGee at 12:54 AM on August 4, 2016 [1 favorite]


If the state can't afford to defend, it can't afford to prosecute. Problem solved.
posted by effugas at 3:40 AM on August 4, 2016 [13 favorites]




(1) The interest of a prosecutor, technically speaking, is not in a conviction. It is in justice.

You'd think we'd have more justice, then, but we just wind up with all these convictions.
posted by entropone at 5:47 AM on August 4, 2016 [3 favorites]


I heartily approve of this.
posted by OmieWise at 6:48 AM on August 4, 2016


I voted for Nixon at least once. I'm glad the PD office did this. Missouri needs to get its shit together. I know at least one PD in MO and the stories she tells are horrifying - and I know she's trying the best she can, she's not incompetent.

Frankly I hope the PD's office does this to members of the legislature, like someone suggested upthread, until they get off their asses.
posted by dismas at 6:56 AM on August 4, 2016


I can't help but wonder how much more effective gov't (or really any large org) would be if the execs had to get down in the weeds of their most challenged departments once in a while? When I was a teacher and our school was dealing with a staffing crisis (a couple of teachers quit mid-year and there weren't qualified candidates), the principal and APs stepped up to teach sections in their credentialed disciplines. Their leadership and decision making improved greatly after that!
posted by smirkette at 7:12 AM on August 4, 2016 [2 favorites]


FWIW, two things to note:

1. The Governor is the head of the executive branch of the state. The prosecutors ultimately work for him. So he has a direct conflict; he can't ethically appear in a case as counsel when opposing counsel is his subordinate.

2. I have collected some research (incidental to my main interests on this issue, which are about IFP affidavit privacy and collateral appealability of denial of counsel) about whether courts can coercively appoint counsel.

tl;dr: Not under the IFP statute, but yes under inherent authority.

I have NFC how it applies to appointments made by an entity that's not, actually, a court or judicial action…
posted by saizai at 7:27 AM on August 4, 2016


The Governor is the head of the executive branch of the state. The prosecutors ultimately work for him.

Do they? States have different systems from the federal government -- the President is ultimately the boss of everyone in the U.S. Executive Branch, but that's not really the case in a lot of states. I admit I don't know about Missouri, but in a lot of places, local prosecutors and the like are themselves elected officials, or appointed by elected officials who are not the Governor.
posted by Etrigan at 7:51 AM on August 4, 2016


Googling it and glancing at the Missouri Constitution, it looks like they have a separately elected attorney general who is responsible for prosecuting crimes, rather than one appointed by the governor. I'm not sure how that interacts with the governor's constitutional role which vests him with "[t]he supreme executive power" and his role in executing the laws, which is also specified in the constitution. It's definitely not as clear cut a conflict as appointing Obama to represent someone would be.
posted by Bulgaroktonos at 8:00 AM on August 4, 2016


"We're out of money, anyone arrested for the following offences will be immediately set free without charges being laid"

to be clear, it's not the prosecutors who are out of money. We pay for Law and Order. Justice? We can do without that.
posted by j_curiouser at 8:23 AM on August 4, 2016 [1 favorite]


The MO Attorney General's Office almost never prosecutes in criminal trials unless invited to do so by a county judge or prosecutor. It also has a weird patch work of jurisdictional powers regarding what it can and cannot do without invitation from X state department or Y county. For all intents and purposes, disregard the MO AGO in this spat between Nixon and the Mo Public Defender's Office.

One thing not mentioned really, Nixon has only about 5 1/2 months left in office. While he might remain influential in Democratic politics, his reach over most state jobs is pretty much coming to a conclusion. Don't look for to the next governor to harbor much ill will against Barrett outside of his willingness to embarrass the Governor's Office. Incidentally, if Chris Koster wins the race in November, he will also be an active lawyer in the Missouri Bar.

We discussed this matter around the office this morning and concluded that Nixon, if zealously advocating for his client's interest, will just tell him to plead guilty, then Nixon will pardon him as governor. Bing bada boom!
posted by Atreides at 8:32 AM on August 4, 2016 [2 favorites]


Oh yeah in my foolish attempt to both comment and do actual work, I misread the powers of the Missouri AG, sorry.
posted by Bulgaroktonos at 8:41 AM on August 4, 2016


I would like to see Nixon defend his client. I'd also like to see Nixon speak with his chest while doing so.
posted by stannate at 8:51 AM on August 4, 2016


I will absolutely defer to anyone actually lawyering in Missouri, because local arrangements can be opaque to outsiders, but it appears to me that Missouri prosecutors are elected. In which case, no, Nixon would not have authority over the prosecutor involved. Unlike in the federal system, where the DOJ is an agency of the executive, and the president appoints the head of DOJ and the U.S. attorneys generally and has authority to make policy for the department.

Many states have a semi-split executive where some part of the prosecutorial authority of the state is vested in elected officials of some kind: either AGs or prosecutors or both. It's hard to get your head around if you're used to the federal system.
posted by praemunire at 8:54 AM on August 4, 2016 [1 favorite]


I suspect we need a "layer tax" where some portion of money any party spends on lawyers goes to the opposing party's lawyers, so that pro-bono works gets some limited financing, but obviously it'd be complicated by complex compensation for lawyers, like retainers, stock options, etc. We could be rather cut & dry for public defenders though, like the public defenders office must receive at least 20% what the prosecutors office does, or whatever it needs to be.
posted by jeffburdges at 11:32 AM on August 4, 2016


I will absolutely defer to anyone actually lawyering in Missouri, because local arrangements can be opaque to outsiders, but it appears to me that Missouri prosecutors are elected. In which case, no, Nixon would not have authority over the prosecutor involved. Unlike in the federal system, where the DOJ is an agency of the executive, and the president appoints the head of DOJ and the U.S. attorneys generally and has authority to make policy for the department.

Well, like everything in Missouri, this is a yes and no situation. County prosecutors are elected, but if a vacancy occurs, then the governor can appointment a replacement until the next election. He can do the same with judicial vacancies.
posted by Atreides at 11:59 AM on August 4, 2016


Well, like everything in Missouri, this is a yes and no situation. County prosecutors are elected, but if a vacancy occurs, then the governor can appointment a replacement until the next election. He can do the same with judicial vacancies.

Okay, but a capacity to make an emergency appointment until a replacement can be chosen electorally doesn't, by itself, mean authority over the office. If he doesn't ordinarily pick them and lacks formal power to constrain their prosecutorial discretion (which is what that page I linked suggests), then he is not the boss of them.
posted by praemunire at 12:17 PM on August 4, 2016


Okay, but a capacity to make an emergency appointment until a replacement can be chosen electorally doesn't, by itself, mean authority over the office. If he doesn't ordinarily pick them and lacks formal power to constrain their prosecutorial discretion (which is what that page I linked suggests), then he is not the boss of them.

Right, but there is a level of potential political soft power, so to speak. Nixon has a track record of watching out for those he considers friends and presumably, expects them to toe an expected line. One of his long time associates was appointed to a local circuit court, but when he lost the election to keep the seat, ended up being appointed again by Nixon to a vacancy on the state supreme court. Not a bad promotion, and one that wouldn't have happened if that fellow had decided to act in a manner similar to the state prosecuting defender.

So you could have a governor appointed prosecutor, who's retained in the following election, and there might not have a straight up statutory/legal conflict, but the prosecutor might think, "If I don't upset the governor doing anything as prosecutor, he might appointment to the next open judgeship...etc." Technically, the same could be true of any prosecutor, they could be selected for appointment, but those who have already been recipients would definitely be within the right gravitational pull to know they have better chances than most.

(To be clear, I'm not saying the judge I'm talking about in any way made a decision on the bench in deference to Nixon, but he definitely did not actively antagonize him and obviously maintained his relationship with the governor.)
posted by Atreides at 12:37 PM on August 4, 2016


According to various sources, the governor's office disputes the authority of the public defender to appoint private counsel.
Quoting Lawnewz:

Update – 5:55 p.m: The Communications Director for Nixon, Scott Holste, wrote to us, saying the law doesn’t give Barrett the power to actually recruit Nixon.

Gov. Nixon has always supported indigent criminal defendants having legal representation. That is why under his administration the state public defender has seen a 15 percent increase in funding at the same time that other state agencies have had to tighten their belts and full-time state employment has been reduced by 5,100. That being said, it is well established that the public defender does not have the legal authority to appoint private counsel.

Under Section 600.064 of Missouri law, only the circuit court can appoint a private attorney to represent an indigent criminal defendant. Section 600.042.5, the statute referenced by the public defender, authorizes the public defender to “delegate” representation by contracting with private counsel, which requires the consent of the private attorney.
posted by w0mbat at 3:28 PM on August 4, 2016 [1 favorite]


like the public defenders office must receive at least 20% what the prosecutors office does, or whatever it needs to be

The American system of justice is deliberately biased in favor of the accused. That's why we have the presumption of innocence, proof beyond a reasonable doubt, etc. Therefore shouldn't the public defender's office have triple the budget of the prosecutor's office? (Let's say 3x the prosecutor's budget for cases defended by the PD and exclude those cases with private defense.)

That should give the public defender's office the resources to vigorously defend every indigent person accused, as well as the ability to pursue things like systemic racial bias in the justice system, and poor conditions in jails and prisons, which we know are big problems.

Maybe in cases with private defense, the accused will get some funding according to the same formula, sort of like school vouchers.
posted by ryanrs at 8:21 PM on August 4, 2016 [2 favorites]


If the state can't afford to defend, it can't afford to prosecute. Problem solved.

FOR SERIOUS.

I have linked to this before and I will link to it again, but here is a representative of the US State Department explaining (to a non-US audience) how federal funding for state-level legal aid works in the United States.

tl;dr - when the federal government allocates money to the states for criminal justice purposes, they cannot dictate what proportion of that money is used for specific subject areas, including public defense. Like at all. Which is fucked-up and insane.
posted by showbiz_liz at 11:14 AM on August 5, 2016 [3 favorites]


Another factor to remember when thinking about prosecution vs public defender budgets is police budgets. The prosecution gets the case after the police have done the initial investigation work, while public defenders have to have employees go track down witnesses, check out crime scenes, etc. A public defender I knew once told me and some other law clerks that if you haven't been to a crime scene, you're not providing adequate representation, and he's not wrong, but doing that can be impossible. He was a felony attorney with a private army of unpaid interns (he had special dispensation to find and hire them himself, I think) who made that possible. I came back as an attorney later, handling 40-50 (misdemeanor) cases a week, and you know what? I didn't visit all those crime scenes, because I didn't have the time. The state's attorney always had someone who had visited the crime scene available to testify, because they had police officers.
posted by Bulgaroktonos at 12:41 PM on August 5, 2016 [5 favorites]


showbiz_liz: "when the federal government allocates money to the states for criminal justice purposes, they cannot dictate what proportion of that money is used for specific subject areas, including public defense"

Objection: ambiguous pronoun. I suppose "they" means the feds?
posted by exogenous at 3:05 PM on August 5, 2016


Can anyone with an actual legal background speak to the validity of Nixon's response, or link me to better informed discussion?

My very quick totally-not-a-lawyer read of the two statutes cited is that 600.064 is the procedure for the circuit court to follow but doesn't indicate anywhere that ONLY the court may appoint public defenders and that 600.042 gives the director the power to contract with private attorneys if necessary but 600.042.5 doesn't say anything about requiring a contract/consent to 'delegate'.

I might well be totally off the mark, I'm sure there's more to it, but I can't seem to find anything besides reprints of his response.
posted by yeahlikethat at 5:31 PM on August 7, 2016


This argument boils down to legislative intent, most likely, or at least that's what Nixon is pushing as the decisive interpretation. Nixon's argument rests on the premise that since the legislature enacted Section 600.064, RSMo, it intended that only judges be allowed to designate private attorneys to serve in the capacity of public defender.

For the Public Defender's Office, they will argue that the term delegate is the legal equivalent of appoint, which Nixon's side are shaking their heads at and their fingers back at the other statute. If you read the letter from Michael Barrett to Nixon, it specifically uses the word 'appoint.' Delegate usually implies giving powers to a willing recipient, not arbitrarily choosing someone to perform a task with no previous relationship.

The letter CC'd Judge Joyce in Cole County. Cole County judges have a lot of experience handling cases which call into question the powers and abilities of various state agencies and departments, mainly because it's the venue for such challenges. To my knowledge, she's not an appointee of Nixon's (at least not recently, she just survived a run at her seat by a Republican), so not necessarily someone who anyone might say may approach with any type of bias. The most likely result, regardless of what or whether she ends up ruling on the matter, will be an appeal to the Court of Appeals, Western District of Missouri. By the time that happens, it's entirely possible Nixon may be out of office, and just a private citizen again.
posted by Atreides at 7:57 AM on August 8, 2016


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