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Broken Justice Episode 4: Public defenders fight back – the full transcript

 

Amna Nawaz:
Hey y’all. You’re about to listen to episode four in a five part series. If you didn’t start from the beginning, trust me, it’ll all make a lot more sense if you stop right here and go back to episode one.

Steve Hanlon:
We got 16,000 public defenders who are mad as hell. And they’re not going to do it anymore.

Amna Nawaz:
That’s Steve Hanlon. He’s a lawyer who’s spent his career fighting systems for violating civil rights. And now he’s trained his eye on the failures in the public defender system in America.

Steve Hanlon:
This is a disease. And it’s gone on for 50 years.

Amna Nawaz:
We’ve told you about some of the consequences for the clients in this system. But there are real consequences for public defenders too. Long hours, low pay, and the feeling that they’re constantly failing the people they’re trying to help. And the stress of the job is crushing them.

Public defender:
It hardens me up in a way that is uncomfortable. The only way that I feel like I can go through it mentally and emotionally is by dismissing certain functions of my job. And the reason for that is because if I don’t, the emotional drain is impossible.

Amna Nawaz:
This has been public defense for decades, suffering from the same chronic issues: too many clients, not enough lawyers and, despite dire warnings, not enough funding.

Steve Hanlon:
At some point when you get your face rubbed in the mud enough you’ve got, you’ve got to stand up and fight back.

Amna Nawaz:
In the last few years, Steve has been trying to fight back, and for many reasons, he’s taken that fight to Missouri.

Steve Hanlon:
Missouri is the epicenter of this whole movement to end this abandonment of the rule of law.

Amna Nawaz:
The question is “Can you fix something that’s been broken for so long?”

“Broken Justice” show theme montage:
Frank Carlson:
Do they have a nickname for public defenders?
Defendant: Oh yeah, yeah they call ‘em public pretenders
Public defender: These are my docket cases, probations.
Public defender: I have 119 open cases.
Public defender: 131 open cases.
Public defender: Hey, here’s your 200 cases. You have court in 20 minutes. It’s across the street. Go.
Public defender: I feel the stress of 150 souls on my back.
Public defender: And you know that some of them are slipping through the cracks
Automated Voice: This is a free call from
Ricky Kidd: Ricky
Ricky Kidd: I 100 percent believe that I’m in prison today because of the Missouri public defender system.

Amna Nawaz:
This is “Broken Justice,” a show from the PBS Newshour about the public defender system in Missouri – and what it tells us about justice in America. I’m Amna Nawaz:.

Frank Carlson:
And I’m Frank Carlson:.

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Amna Nawaz:
So Frank, Steve Hanlon:, how did you first hear about him?

Frank Carlson:
Well, when I first started reporting this story, I kept seeing Steve’s name come up. He’s a lawyer in his late seventies and he represents thousands of other lawyers across the country as General Counsel for the National Association for Public Defense. And he’s also a major critic of this system.

Steve Hanlon:
Everybody has agreed that we will abandon the rules for lawyers for this population of primarily black and brown people you cannot do mass incarceration unless the whole justice system rolls over and plays dead. This will be the legacy of my generation of lawyers to the next generation of lawyers unless we put an end to it.

Frank Carlson:
Steve’s also someone who thinks he has an idea for how to fix it.

Steve Hanlon:
I think we have thought at the problem. But I do not think we have thought through the problem. And I think we have used the wrong law. And I think we have used the wrong facts.

Frank Carlson:
See for years Steve and groups like the American Civil Liberties Union and the Southern Poverty Law Center have been trying to address the problems of public defense across the country primarily through lawsuits–suing states and local governments for failing to adequately represent clients.

Radio announcer:
The ACLU has filed a class action federal lawsuit on behalf of suspects who can’t afford their own lawyers.

Radio announcer:
The American Civil Liberties Union of Idaho says the state’s public defense system is broken and it’s taking Idaho to court to prove it.

Frank Carlson:
They’ve been saying, “Look, these clients had terrible representation from their public defenders, and that’s mainly because there wasn’t enough money in the system.” In fact, right now the ACLU has an open lawsuit against Missouri’s public defender system saying exactly that.

Newscaster:
The ACLU of Missouri just filed this lawsuit today against the state over a lack of money from the state for people who can’t afford a lawyer.

Frank Carlson:
In many cases, these lawsuits force state and local governments to improve their systems. But Steve thinks those reforms don’t go nearly far enough and that it’s been too easy for the systems to eventually backslide to the status quo.

Amna Nawaz:
So what does he think we should do?

Frank Carlson:
Well for starters, he thinks you have to define the problem — not with anecdotes or stories about individual clients — but with some objective measure to prove that the system is actually overloaded.

Amna Nawaz:
So how do you do that? How do you objectively prove that the system is overloaded?

Frank Carlson:
You need data! You need to figure out how many cases a public defender can actually manage.

Amna Nawaz:
Ok, so how do you figure that out?

Frank Carlson:
Right, it’s not easy. We’ve heard a lot of public defenders talking about their caseloads.

Public defender:
131 open cases.

Public defender:
I have over a hundred cases.

Public defender:
I have ninety five open cases right now.

Frank Carlson:
Different kinds of cases take different amounts of time. Like a murder is generally going to take a lot longer than a probation violation. So Steve says what you actually need to know is the number of hours a public defender should be spending on each kind of case because public defenders like everyone else, only have so many hours in a day.

So Steve thought if he could just figure out a standard number of hours each kind of case required, public defenders could use those to draw a line in the sand and to say, no more. So Steve recruited a St. Louis accounting firm to come up with the standard number of hours any defense attorney — public or private — should be spending on each kind of case.

Steve Hanlon:
For sex felonies, they needed to do 63.8. For juvenile they needed to do 19.5. For probation violations they needed to do 9.8.

Frank Carlson:
And to no one’s surprise, Missouri public defenders weren’t spending nearly enough hours on their cases.

Steve Hanlon:
For a higher level felony, they were doing, I can’t believe this, 8.7. They needed to be doing 47.6.

Amna Nawaz:
So Steve had his numbers and they were way off. So then what?

Frank Carlson:
Well Steve thought Missouri’s public defenders could use these numbers in at least two ways: one was to convince the state to give them more money to hire more lawyers and another was to convince the courts that they couldn’t take on any more cases — so judges and prosecutors would then have to figure out what to do. So let’s talk about the money first.

Michael Barrett:
In order to provide constitutionally effective representation in all our cases, for all our clients, we would need about 300 more lawyers at a cost of about $20 million.

Frank Carlson:
That’s Michael Barrett:. He took over as the head of Missouri’s public defender system after Steve’s study was completed. And in 2016, he used Steve’s numbers to launch a crusade — starting with state lawmakers. He wanted every cent that Steve Hanlon:’s calculation said he needed, another $20 million dollars to hire 300 more lawyers — or a 50 percent increase in his budget.

Amna Nawaz:
Ok, a 50 percent budget increase is huge. Did Missouri lawmakers buy that?

Frank Carlson:
They actually kind of did. They said “Ok, these workload numbers seem real. But we don’t have $20 million to give you. How about four and a half million instead?” Michael said “Ok, that’s a good start,” and the legislature passed the increase.

Amna Nawaz:
Ok, so he gets four and a half million that’s definitely not 20 million, but sounds like it’s a small win?

Frank Carlson:
Well it was. Until Jay Nixon, the democratic governor, said “not so fast.” He blocked almost all of that increase. And Michael was pissed.

Michael Barrett:
Here we are, we finally get some funding and then the governor doesn’t want us to have it.

Frank Carlson:
Ok, and here comes this big dramatic moment, Amna … are you ready for it?

Amna Nawaz:
I’m ready.

Frank Carlson:
But remember, dramatic by lawyers’ standards.

Amna Nawaz:
Ok, I’m tempering my expectations, go ahead.

Frank Carlson:
Michael Barrett: had this obscure power to assign a case to anyone in the state with a law license — to essentially turn anyone into a public defender for a single case. And so he assigned one to the Governor.

Newscaster:
A bitter budget battle in Missouri going to a new level last week.

Newscaster:
Missouri governor Jay Nixon has just been recruited to be a state public defender.

Amna Nawaz:
Wait so after the Governor blocked his funding, Michael Barret assigns him to work as a public defender? That’s some serious trolling.

Frank Carlson:
Yeah, it was something. Here he was, the top official in the state and the former attorney general, being told that he was going to have to represent a poor client.

Frank Carlson:
You knew that would, that would upset him.

Michael Barrett:
What is he going to do, not fund us?

Amna Nawaz:
I mean, the man’s got a point, right? So what happened?

Frank Carlson:
Well a court eventually ruled that Michael didn’t have the power to assign the Governor a case. Only a judge could do that. And so the Governor didn’t have to represent that poor client.

Michael Barrett:
I wanted to bring attention to this matter because so many people were being incarcerated without competent representation.

Frank Carlson:
Michael got the attention he wanted, and he used it to rally his troops and to say to the world, people’s constitutional right to a lawyer is being violated day in and day out, and we’re going to try everything we can think of to change that.

Michael Barrett:
Here’s what I don’t get: I was in the military. I served alongside people that went off and died and spent years in the desert so that we can enjoy these constitutional rights, only to come home and have some guy in a suit take it away from us? And it’s shocking to people when we’re not ok with that? What am I missing here?

Amna Nawaz:
Those guys in suits, as Michael Barrett: calls them, the people who are refusing to provide more funding, what do they say about all of this?

Frank Carlson:
Well in public, they’re generally supportive of public defense. Here’s former Missouri Governor, Eric Greitens, in his 2017 state of the state address:

Eric Grietens:
I believe in the Sixth Amendment, which guarantees the right to a fair trial and adequate legal representation for all.

Frank Carlson:
But then when it comes to actually providing the funding public defenders say they need, well that’s a different story.

Newscaster:
According to next year’s budget, the Governor plans to cut one million dollars from public defenders.

Frank Carlson:
For decades, reports have found Missouri near the bottom of the pile for public defense funding across the country, and so far nobody has put up the money to change that. Under the last few governors, funding for public defenders hasn’t increased in a way that would meaningfully address this caseload crisis.

We reached out to the current governor, Mike Parson, the house budget chair, Cody Smith, the former governor, Jay Nixon, and they either didn’t respond to our requests or declined to comment on this issue.

Amna Nawaz:
Ok, so Michael Barrett wasn’t getting anywhere trying to get more funding. But what about the other option Steve Hanlon proposed? Taking the fight to the judges?

Frank Carlson:
Well that was happening too. Public defenders across the state were trying to use Steve Hanlon:’s data in the courts to refuse cases. The state law said that in order to refuse cases, public defenders needed to convince the presiding judge in their district that they were overloaded. But in most cases, even with the new data, judges weren’t buying it.

Dwight Scroggins:
It’s silly, it’s, it’s ridiculous.

Frank Carlson:
Judges wouldn’t tell me this on the record, but Dwight Scroggins, a former prosecutor in Buchanan County, Missouri echoed what a lot of judges believe about public defenders.

Dwight Scroggins:
I think they benefit if they can convince people that they are in crisis. I think they spend too much time trying to make the case that we’re in crisis and we need more money and more attorneys and too little time trying to do more with what they have.

Amna Nawaz:
Well, what does he mean by that, do more with what they have?

Frank Carlson:
Well, some critics argue that there isn’t really a crisis in public defense at all; that public defenders just need to learn to be more efficient at their jobs.

Amna Nawaz:
And what does that mean, exactly?

Frank Carlson:
Well one of the suggestions you hear a lot is that public defenders should do something called “horizontal representation.”

Amna Nawaz:
Ok, I’m asking this a lot, but what does that mean exactly ?

Frank Carlson:
Right, it sounds complicated but just means they wouldn’t follow a single case from the beginning to the end, like they do now. Instead there’d be a different public defender for every stage of a case — one for pre-trial motions, one who worked on the bond hearing, one who took the case to trial, and so on.

Amna Nawaz:
Hmm, well what is wrong with that strategy?

Frank Carlson:
Well Michael Barrett says it’s basically just processing people accused of crimes, not actually representing them.

Michael Barrett:
Do me a favor, call up a firm, talk to any of those lawyers and say, “Explain to me the virtues of horizontal versus vertical representation.” They’ll say “I don’t know what the hell you’re talking about.” It is a made up term for the idea that in the public defender world, defendants don’t have a lot of value and so they shouldn’t have an attorney who represents them from the beginning of their case to the end of their case.

Amna Nawaz:
But if defendants have a lawyer at every step of the process, how is that not representation?

Frank Carlson:
Well you know when you lose your luggage at the airport, and you have to go to that little room at baggage claim?

Amna Nawaz:
I am very familiar with that room.

Frank Carlson:
Right, well Michael compares horizontal representation to that.

Michael Barrett:
That poor woman who gets yelled at when the person gets off the plane and the luggage is not there. They go in the room and they say “Where the hell is my luggage?” You know why she’s calm? She’s not responsible for it. She wasn’t in charge of putting it on the plane. She wasn’t in charge of taking it off the plane. She knows it’s not her responsibility.

You have four or five different attorneys in the office pointing fingers at each other. No one’s held accountable. And so yeah it would be efficient. Heck it’d be efficient if we cut a window in the side of the courthouse and just drove through it with our client and took plea and drove off. That would be efficient too, but it’s not constitutionally effective.

Amna Nawaz:
Ok, so public defenders aren’t buying that idea, and judges weren’t buying Steve’s numbers or the premise that public defenders were overloaded. They’re basically at a stalemate.

Frank Carlson:
Yeah. And public defenders didn’t know it then, but the stakes were about to get a lot higher.

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Frank Carlson:
In the fall of 2017, something or, I should say, someone brought this tension between public defenders and the courts to a head: Karl Hinkebein.

Michael Barrett:
Karl would be very mad at me for even talking about him. To say he shied away from any fanfare would be the understatement of the decade.

Frank Carlson:
Karl died earlier this year, and so Michael Barrett:, then the head of Missouri’s public defender system, told us his story.

Michael Barrett:
Karl was the consummate public servant.

Frank Carlson:
Like so many of his colleagues Karl was handling a lot of cases, way more than he should have been. And then he got very sick.

Michael Barrett:
He had health problems for a number of years and he even spent a long time in hospital. And so, Karl just being a workhorse who took the more complicated cases, would just continue to do the work.

Frank Carlson:
But Karl was falling behind. He was missing deadlines that couldn’t be missed. And he wasn’t talking to his clients to tell them what was happening with their cases.

Michael Barrett:
There’s the world’s best juggler who can do whatever 15, 20 balls but then throw ten extra balls his way and suddenly doesn’t look like the world’s best juggler anymore. And as good a lawyer, or juggler, as Karl was, no one could handle that many cases.

Frank Carlson:
Ultimately the office responsible for oversight of lawyers in the state charged Karl with neglecting six clients and missing deadlines. And in 2017, the Missouri State Supreme Court heard that case. Here’s the lawyer representing that office:

Alan D. Pratzel:
In this case, it’s undisputed the respondent breached these ethical duties and responsibilities to numerous clients.

Amna Nawaz:
What did Karl say in his defense?

Frank Carlson:
He pretty much said “Yeah, I did miss these things.” Here’s his attorney arguing on his behalf.

Sara Rittman:
The problems that occurred in this case resulted from an attorney with severe and chronic physical health problems coupled with a broken public defender system.

Frank Carlson:
Essentially, Karl tried to argue that there was a double standard: one for private attorneys and another for public defenders like him. Because private attorneys could turn down cases. Public defenders felt that they couldn’t. But in his hearing, one of the state supreme court judges said that was no excuse.

Zel Fischer:
Because when they take their oath to follow the rules of professional responsibility, sometimes that means not taking the case, and sometimes that means taking a different job.

Amna Nawaz:
Wait taking a different job? It sounds like the judge was saying if he couldn’t handle the cases, he should have just quit?

Frank Carlson:
That’s exactly right.

Amna Nawaz:
Wow. So what did they rule?

Frank Carlson:
Well they put Karl on probation. If he violated that he’d lose his law license. And a few months later, while still on probation, he ended up retiring.

Public defender:
I remember when that happened it wasn’t just this office. Shockwaves through every office in the entire state.

Frank Carlson:
For public defenders across the state, how the court handled Karl’s case felt like the rug had just been pulled out from underneath them.

Public defender:
We thought you had our backs. If I can lose my license over this I’m out.

Public defender:
I don’t consider myself a martyr. And I, I don’t mean to sacrifice my entire life, and profession, and law degree, so that I can help support and be complicit in a system that does not seem to care much for the people that I’m working for.

Public defender:
Wait a minute. This is our bar licenses that are on the line. Right? This is our livelihoods that are on the line.

Amna Nawaz:
So you’ve got public defenders who are already at capacity, and can now back that up with hard numbers, trying to turn down more cases with trial judges. And those judges for the most part are saying no. They can’t do that. And then the state’s Supreme Court says, “Hey public defenders, we’re going to hold you responsible if you miss something in any of these cases. And, on top of that, we might take away your law license?”

Frank Carlson:
Exactly.

Amna Nawaz:
Wow, ok, so we started this episode with Steve Hanlon:, that numbers guy who is trying to fix this broken system in Missouri with data. But now, even with that data, at least for the public defenders, things seem to be getting worse, not better.

Frank Carlson:
That’s exactly what I thought, but Steve told me that this is just part of a process of beginning to hold people accountable for how this system actually works. And he says it’s been broken for so long that changing it is going to require some painful but necessary steps, and that’s going to take time.

Steve Hanlon:
The night is always darkest right before the dawn. So, are we at dawn?

Frank Carlson:
Are we at midnight? Are we at three thirty in the morning? Where, how close to dawn are we?

Steve Hanlon:
If I knew the answer to that I wouldn’t be sitting here talking to you, Frank?

Frank Carlson:
Steve talks in terms of decades, not years. And he looks to cases like the long fight to desegregate the schools, which culminated in Brown v. Board of Education in 1954.
And he points out that even when major cases like those are won, the forces on the other side don’t just quit. The fight goes on. In fact, some recent reports have found that school segregation in the U.S. over the last couple of decades has been getting worse, not better

Steve Hanlon:
So let’s all keep in mind here, even in our greatest dreams, they’re going to push back. Let’s not kid ourselves, ok?

Frank Carlson:
He also says this goal — to get more money to hire more lawyers to represent all these clients — it isn’t the only solution. It’s not even the best one.

Steve Hanlon:
You can give us more lawyers, we can make the system bigger. And that’s called the supply side solution. And then there’s the demand side solution. And that means stop prosecuting all this low level stuff that’s really mental illness, and addiction, and that sort of thing.

Amna Nawaz:
In the next episode of “Broken Justice,” we’ll explore that approach in St. Louis County, where one prosecutor is shaking up the system from his side, which might end up actually helping public defenders too.

Wesley Bell:
Look, we have limited resources. We’d rather reallocate and focus our resources on the serious and violent offenders.

Amna Nawaz:
Plus, Ricky Kidd, serving life in prison without the possibility of parole, finally gets another day in court.

Ricky Kidd:
I’m aware of the percentage of cases that are won and lost but I always just, I have to wake up every day believing that this is it.

Amna Nawaz:
That’s on the next episode of “Broken Justice.”

“Broken Justice” is hosted by me, Amna Nawaz, reported by Frank Carlson and produced by Vika Aronson. Editing by Erica R. Hendry and Emily Carpeaux. Engineering by Tom Satterfield.
Production assistance from Chris Ford. Fact-checking by Maea Lenei Buhre, Amber Partida, and Harry Zahn. Taka Yasuzawa and Alex Sugiura composed our theme music. Additional music by Blue Dot Sessions.

Sara Just is our Executive Producer.

Let us know what you think of the show and send your questions to podcasts@newshour.org. Tweet us @NewsHour and leave us a review in apple podcasts. And check out the show extras on our website: pbs.org/newshour/podcasts.

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