Spouting off on the law since 2015

Jay Nixon, Do Your Part: The 6th Amendment in Crisis

It’s been all over the news: Strapped for attorneys and the budget to hire more, the Missouri State Public Defender System appointed a prominent lawyer named Jay Nixon to an indigent client. He also happens to be governor - and partially responsible for the woefully underfunded the state’s public defender system.

Missouri Governor Jay Nixon (D)

The guarantee of counsel to all defendants facing jail time was established by the Supreme Court in 1963 by Gideon v. Wainwright. (There’s a TV movie about the case - with Henry Fonda! - if you care to see a dramatization.) The decision established that defendants who can’t afford an attorney have the right to an attorney to defend them, and that states must provide lawyers to these defendants free of charge. As a result, public defender systems have been established at all levels of government, either as state or county agencies with staff attorneys or systems that appoint private attorneys who receive a fee for each case.


Funding problems have plagued the system throughout its relatively short history. Criminal defendants aren’t a sympathetic bunch with big political pull - even with criminal justice reform at the fore, focus remains on reforming sentencing laws, policing the police, and implementing mental health and drug court diversion programs. Public defenders with reasonable caseloads would alleviate the former two problems without a doubt.

So why do public defenders need funding so badly? As the ABA laid out in this report, sufficient time is essential to providing adequate representation of a criminal case. An attorney can’t handle too many cases at once. If a public defender’s caseload rises past a certain point, there’s simply not enough hours in the day to give each case the thorough investigation and preparation it deserves.

Everyone’s roughly familiar with how criminal defense works, but here’s a nitty-gritty play-by-play for those who haven’t done it:

  1. The arrest report. This is usually short. It does, however, tell a lawyer what they’re dealing with at the case’s outset, and it provides a basis of knowledge that will convey to the client you know an outline of what he or she will be up against. But what really counts is the client’s version of events, and to get that, you must move on to the next crucial step.
  2. The client interview. Much of the time, this needs to be done at the jail or in a holding cell, where things could be crowded or rushed - and the conversation easily overheard. In an interview, a rapport needs to be established right away between the accused and lawyer.
  3. Investigation. Should a client escape the massive pressure to plead guilty, investigation needs to be conducted in order to undermine the prosecution’s evidence and gather the defense’s own. Investigators can be available to bigger offices, but their workloads are too heavy. Canvassing neighborhoods for witnesses (many reluctant) and visiting crime scenes takes time away from court appearances and other cases. Abbreviated investigations can be common for this reason.
  4. Legal research. Motions must be filed to address the admissibility of evidence, challenges to the indictment, and other matters. Then the lawyer needs to construct a defense - will experts be needed (and can the office afford them)? What are the elements of the crime, such as mental state and particular actions the prosecution is required to prove? For example, aggravated assault generally requires intent to injure someone (mental state) and an action like pointing a gun or throwing a punch. The definitions of these mental states and actions are governed by statutes and case law that a lawyer needs time to delve into.
  5. Trial preparation. Opening and closing statements, questions for the witnesses, and an overarching theory of the case are the most basic requirements to prepare for trial. When the trial faces a jury (rather than a judge alone), a lawyer must prepare questions for “voir dire,” or jury selection, and then research and present to the judge proposed final instructions on points of law the jury should consider in deliberations.

With caseloads that can number into the hundreds, many public defenders simply cannot do the job that the sixth amendment requires - and that every defendant deserves.


Public defense is a noble calling, and great trial experience. By no means does acknowledging the crisis in funding and excessive caseloads impugn the many talented and dedicated lawyers who undertake this tough task. But in reality, only so many public defenders can stick with the low pay, stress, and often ungrateful clients, leading to burnout that pushes them to other areas of the law. As a result, clients may face the unsettling prospect of an inexperienced lawyer - very little time to prepare - responsible for their freedom. That’s why states like Missouri must provide the funds and staff necessary to support public defenders and provide those facing a life-altering criminal charge with the zealous and thorough defense they deserve.

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