Judge finds practice of using a waiting list to assign cases to public defenders is unconstitutional

Ten days ago, a judge in Missouri found that the state’s practice of putting poor criminal defendants on a waiting list to be appointed a public defender is unconstitutional.  However, the judge issued a stay to give legislators more time to remedy the situation.  You can read the opinion here and a summary here.

Missouri Supreme Court finds that public defenders have immunity for discretionary functions

In a case called Laughlin v. Perry, decided on June 30, 2020, the Missouri Supreme Court found that public defenders are immune for legal malpractice liability under the doctrine of discretionary functions.   You can read the opinion here.   The court summarized its conclusion as follows:

As public defenders, Perry and Flottman are entitled to official immunity because they are public employees whose official statutory duties concern the performance of discretionary acts. . . . One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and . . .  choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.

Judge orders attorney to violate a rule of professional conduct!

We all know that attorneys have an ethical obligation to provide competent and diligent representation to all their clients. We also know that being unable to do so is a proper argument to refuse a court appointed representation. 

Yet, this does not seem to apply to public defenders in Kansas City, where a judge has decided to order specifically ordering PDs to violate their ethical duties, and at least another one thinks the problem is that public defenders want time to meet their clients and prepare for their cases when they should just be entering guilty pleas.  Here is a copy of one such order. 

Aside from the fact that the state needs to do something about the PD system, the conduct of the judge who signed the order is outrageous and I hope he is reprimanded for it.  If there is a crisis in the system, it needs to be addressed but purposely ordering an attorney to be unethical, and to violate a defendant's constitutional rights in the process is reprehensible.

Critics of the way the criminal justice system is being run in Missouri have called it "assembly line justice," in which judges want to push defendants to plead guilty while giving defense lawyers little to no opportunity to meet their clients privately, or prepare for their cases.  The ABA Journal has the story here. 

Legal scholars to Missouri Court of Appeals: Give Lamar Johnson his day in court

One hundred and six "renowned legal ethics scholars" (including myself) signed an amicus brief to the Missouri Court of Appeals urging the court to determine that St. Louis Circuit Attorney Kimberly M. Gardner acted completely within the “best traditions” of the exercise of appropriate prosecutorial power in seeking a new trial for Lamar Johnson.

The St. Louis Post Dispatch has the story here.