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Missouri prosecutors hold all the cards. Public defenders and vulnerable clients fold

This piece originally appeared in the Kansas City Star.


Jamie Bess doesn’t know what evidence Jackson County prosecutors had when they charged her with child sex crimes and had her locked in jail for nearly two years.

But it wasn’t enough to take her to trial. One day they dropped the charges. She never got an explanation of what happened.

Like many others, she served time without ever being convicted of anything.

Bess is one of thousands of Missourians who didn’t have enough money to hire a lawyer and found herself, aided only by the state’s weak public defender system, going up against state prosecutors.

Prosecutors across Missouri have overwhelmed public defenders by filing more and more cases every year, charging some people with much more serious offenses than they committed.

“The deck is inherently stacked against the public defender’s office from a fiscal standpoint,” said Michael-John Voss, co-founder of Arch City Defenders, a St. Louis nonprofit law firm that represents people on civil and criminal matters.

In some cases, prosecutors seem confident about the charges until it’s time to show evidence in court.

Prosecutors point out that they are playing by the rules. State law gives them wide latitude in deciding who to charge, what to charge them with and what plea bargains will be accepted. They are empowered to drop a case at any time.

That power becomes dangerous to the state’s poorest citizens when, as in Missouri, it is checked by an eroded public defender system with far fewer resources. Around the state, from the Ozarks to St. Louis and Jackson County, prosecutor’s offices have budgets many times larger than local public defenders.

The problem is in some ways worse in rural communities where public defenders are even more outmatched.

In places like Phelps County, public defenders handle more cases than their counterparts in bigger cities, and have to travel long distances to do it.

Public defender Matthew Crowell believes prosecutors hold the cards.

“It’s just not a fair playing field,” he said.

‘I HAD TO FIGHT’

Bess, a mother of three, had been living with her husband at their home on The Paseo near Brush Creek when they were arrested.

Jackson County prosecutors charged Bess and her husband with two serious felonies.

Bess was in jail for 688 days.

Things got dangerous when other inmates found out what she was accused of.

“I had to fight in there a couple of times,” the 55-year-old said.

Bess maintained her innocence, but months passed while her public defender didn’t seem to do much. Later, Bess couldn’t remember the lawyer’s name.

One day, jail staff told Bess she was free. A corrections employee handed her a $1.50 bus ticket and they let her go.

Bess said the ordeal ruined her life. She hasn’t been able to get a job. She has lost friends and been ostracized.

“It hurts,” she said. “Now we have to start all over again — life.”

Bess moved to Illinois and refuses to ever live in Kansas City again.

When contacted by The Star, Jackson County Prosecutor’s Office spokesman Michael Mansur said prosecutors decided to drop the case.

He said the quality of the case against Bess became more clear after her husband pleaded guilty to a lesser charge.

Bess remained locked up for another six months after that because, Mansur said, the original prosecutor left the office and someone else was assigned to her case.

When the new prosecutor reviewed Bess’ file, the charges were dropped “immediately.”

No public defender ever filed to have the case thrown out, Mansur said.

“We solely chose to dismiss that.”

“She’s probably upset,” Mansur said. “But I don’t think we did anything wrong. We followed what we thought was in the best interest of the state of Missouri.”

Suzanne Valdez, a University of Kansas law professor who teaches prosecutorial ethics, said the case raised several questions.

“The fact that you have people sitting in jail for this length of time and then sort of magically, these charges disappear, there’s a question about one, whether the prosecutor’s been diligent; two, whether they’re following the law; and three, whether the public defender’s holding the prosecutor to the law.

“And four, even bigger, whether the judge is holding everybody to the law in terms of getting the case moved through quickly for the benefit of justice.”

CASES DISMISSED

When prosecutors charge people and then do nothing while the defendant sits in jail, public defenders complain it effectively shifts the burden of proof to the accused.

Often, the defenders say, if they demonstrate that they plan to force prosecutors to show the evidence in court, prosecutors suddenly lose interest and drop cases.

“Especially for the defendants who are in custody, there is a lot of leverage that is being flexed from the other side,” Kansas City public defender David Wiegert said. “I don’t think anybody thinks they’re doing it wrong or thinks that they’re doing it maliciously, but often times, from our side, it looks that way.”

Data from the Missouri public defender system tells part of the story.

Over a period of four years, when trial was 61 to 90 days away, defendants had their charges dropped in 231 cases.

When trial was within a month, the number jumped to 1,688.

Phelps County Prosecutor Brendon Fox said when it happens in his jurisdiction, it’s not intentional.

“There are times that, you know, you have witnesses that you can’t track down,” he said. “You can’t really plan for that sort of stuff any more than a defense attorney can. If they’re like insinuating it’s some sort of tactic or something, that’s ridiculous.”

THE SCALES OF JUSTICE

Across Missouri’s rural, suburban and urban areas, prosecutors command far greater staffs, budgets and investigative resources than the public defenders who go up against them.

The prosecutor’s office in St. Louis County had a budget seven times that of the public defender. In St. Charles County, it was five times. In the Ozarks region including Springfield, prosecutors had more than 2.5 times the budget of public defenders.

The Jackson County Prosecutor’s Office is triple the size of the local public defender’s — 151 employees compared to 49, based on data provided by both agencies.

Staff in the prosecutor’s office are also paid more.

Prosecutor Jean Peters Baker makes 35% more than Ruth Petsch, the head defender in Kansas City. Four other attorneys in Baker’s office make more than Petsch.

Public defenders are also outmatched when it comes to investigative muscle.

Prosecutors have at their disposal numerous area police departments to gather more information in cases, plus eight investigators of their own. The chief investigator in Jackson County makes $72,508.

The public defender’s office has four investigators. Their top investigator earned $43,476.

The prosecutor’s chief investigator makes more than most of the attorneys in Petsch’s office.

“When you think of the scales of justice, it certainly is imbalanced,” Petsch said.

The Jackson County Prosecutor’s Office said in a statement that it urges full funding of the public defender system.

“A strong prosecutor is made stronger by a strong defense,” Baker said. “We welcome a strong defense in every case in our jurisdiction.”

The lopsided division of resources, though seen elsewhere in the U.S., is aggravated in places that have weak defender systems, said David Sklansky, a professor at Stanford Law School.

“Indigent defense counsel are overmatched in terms of resources in many places so the fact that prosecutors are so powerful makes it even worse that indigent defense isn’t adequately funded,” he said.

In May, Kamala Harris, a former prosecutor in California who’s seeking the Democratic presidential nomination, introduced legislation for a $250 million grant program that would establish workload limits and pay parity between public defenders and prosecutors.

“All too often, our public defenders are overworked and lack sufficient resources,” she said in a statement released when the bill was unveiled.

“This makes public defense unsustainable over the long haul. And the thing that suffers is the integrity of our system of justice, which is supposed to be based on fairness and equality. It’s wrong, and it’s the opposite of justice.”

‘PUNISHMENT PROBLEM’

Crowell, the district defender in Phelps County, said local prosecutors regularly turn misdemeanors into felonies to extract maximum punishment and charge more poor people than necessary.

While some areas may have a crime problem, he said, the rural communities where he works have a “punishment problem.”

“It is insidious and part of our local culture,” he said.

“This is where prosecutorial discretion should come in but doesn’t.”

In 58 cases from Phelps and Pulaski counties over the past six months, people accused of having drug residue were charged with felony possession.

In 30 cases, prosecutors charged thefts from Walmart as felony burglaries instead of misdemeanor stealing.

Walmart thefts in Saline and Pettis counties are also routinely filed as felonies. There were at least 20 such cases in the last two years. In neighboring Lafayette County they are charged as simple theft or dealt with in municipal court.

Rodney Hackathorn, the district defender in Springfield, said he has seen instances of overcharging.

“I have suspicion that sometimes that’s done for negotiation purposes to give them wiggle room to negotiate and come down and try to work the case out,” he said.

Tim Lohmar, president of the Missouri Association of Prosecuting Attorneys and St. Charles County Prosecuting Attorney, said charging decisions are guided by the expectations of the local constituency.

“We try to take their value system and use that as a blueprint for how we should use our discretion,” he said.

In rural south-central Missouri, across Phelps, Pulaski, Crawford, Dent, Maries and Texas counties, prosecutors filed more cases against indigent clients than their counterparts in Kansas City or St. Louis, which suffer much higher violent crime rates.

That rural area, with a total population of about 172,000 people, had 3,603 public defender cases.

The Kansas City office, where the population is nearly 700,000 people, had 2,675.

In Phelps County, where the court endorsed a misdemeanor docket allowing poor people to represent themselves even at risk of jail time, prosecutor Fox said he was comfortable getting convictions without having to prove the case against a defense lawyer.

The docket works because his office treats people fairly, he said.

“I don’t think defendants are getting a raw deal, because we take our duty seriously and because the judges take their duty seriously.”

REFORM

In recent years, a wave of new prosecutors have turned away from that approach and have run on promises of reform.

Some, including St. Louis County Prosecutor Wesley Bell, were informed by their experiences as public defenders. Once in office, they have taken aim at overcharging, mass incarceration and wrongful convictions.

Those problems, as well as the high cost of keeping people in jail and prisons, are exacerbated by underfunded public defense, according to the Justice Policy Institute, a national nonprofit that supports justice reforms.

Some advocates for change say Missouri should look to the money spent on incarcerating people for more public defense funding or drug treatment and mental health services, which get at underlying causes of criminal behavior.

Phelps County recently allocated $2 million to rehab an old jail to accommodate 60 more inmates.

Eighty percent of the people held in the Jackson County jail on state charges haven’t been convicted of anything.

In Clay County, 229 of the 272 people in jail on Aug. 23 were awaiting trial.

With a cost of $72 per day for one person, nearly $16,500 was spent in 24 hours, in one county, incarcerating defendants presumed innocent.

More than 25% of those inmates were arrested for nonviolent crimes and had been confined for more than 2,700 days collectively, or more than seven years.

Crowell, the public defender, said the people who have power in Missouri already know all this. They just don’t want to do anything about it.

“The justice system is like an ostrich with its head in the sand,” he said, “choosing to ignore the plight of the poor people charged with crimes and making a mockery of the right to counsel.”


This piece originally appeared in the Kansas City Star.

  

 

Posted in JPI in the News

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