I was originally thinking of putting this in MPSIMS because it’s a cute story, but I was also wondering about the legality of it. I would have thought the term “extraordinary circumstances” in context meant a genuine emergency that required the services of this particular lawyer. In this case, the guy is singling out the governor because he wants to pressure him to do what he (Barrett) wants, i.e. increase funds for his office. It’s hard to imagine that the law intended to give him the power to do that, and I’m wondering if that type of thing can stand up.
I suppose in theory, if you buy in to the notion that this situation constitutes extraordinary circumstances, then he could force anyone he wants for any reason. Some lawyer he tangled with about something or other, a state legislator who he wants to pressure over something else. Here, it’s more closely tied to the need for public defenders, because he wants to alleviate the “extraordinary circumstances” by getting the governor to increase funding, but I don’t see how that matters legally.
I would think the Governor can get out of it*, but I like the move. And it will probably accomplish a more productive discussion of funding indigent defense services in Missouri.
*I’d raise the conflict of interest between the state prosecuting the individual and the prospect of the chief executive of the state defending him.
I agree with Procrustus, that the governor would probably have to recuse himself do to the conflict of interest. But I applaud the move. Ideally, Barrett should move on to any members of the bar in the statehouse and then prominent, high-priced Kansas City and St. Louis attorneys until there is enough political pressure to provide adequate funding to the department.
I would take “extraordinary circumstances” to mean merely “there’s nobody in this office who can handle it,” rather than having anything to do with a particular lawyer. When the law was passed, it was probably intended for cases where every available lawyer in the office had a conflict of interest; here, the guy is saying there’s nobody in the office who can handle it because they’re already so overworked and juggling too many cases, so he has to appoint outside counsel.
I don’t find that a compelling argument. The state pays the regular public defenders.
Honestly, I tend to think that it cuts the other way. After all, it’s the executive’s job to enforce the laws, which means that the Governor arguably has a greater duty to personally step in to get the job done.
Of course it is a conflict. He would have an ethical duty to use any legal tool available to help his client. As Governor, he has the pardon power. He just ticks off his client list: pardon, pardon, pardon…
I get the reason behind his stunt, and agree with position. However, is it really fair to that eventual defendant to assign a lawyer who hasn’t argued a case in almost a decade.
Maybe I’m missing something. But I would have thought having the power to delegate the job to any lawyer in the state meant that Barrett could use lawyers who weren’t employees of the Public Defender’s office. I don’t think it means Barrett has the power to compel lawyers to serve as public defenders.
So if I’m reading Bricker’s second quote correctly, the court has said that it’s ultimately the responsibility of the General Assembly to provide resources for the PD office, or to require cities themselves to either provide counsel or not be allowed to lock people up. Yes, I can see how that would work really well. :rolleyes:
I don’t believe a court would find that “extraordinary circumstances” means “any time the head of the agency believes that the agency is receiving a lower budget allocation than he would like.”
I agree that in many (all?) states, the public defenders are woefully underfunded. It’s politically an easy area to cut and a difficult one to fund. The job here is for the courts to determine what is a minimum constitutional level of representation that a defendant is entitled. For one lawyer to have 125 active criminal cases at once is absurd and an effective denial of representation.
However, in many cases, the courts exacerbate the problem. In my state, the Supreme Court has ruled that we must file “Anders” types of appeals in state habeas cases (when the lawyer believes that the issues raised are frivolous, we file a brief anyways if the client demands). That’s absurd. First, the state is not required to even have a post-conviction relief system, and if it does, prisoners are not guaranteed the right to counsel at the trial stage, let alone the appellate stage. Anders was related to a direct appeal, not a denial of a habeas petition.
It seems as if on one hand, we want to bend over backwards to give defendants more meaningless procedural rights (and an Anders appeal is about as tree killingly meaningless as you can get) without paying for it.
I was under the impression that most prosecutions under state laws were actually handled by the cities or counties? If so, does that affect the conflict issue?
