Boone County Circuit Court Judge Stephanie Morrell had a question about the “magic potion.”
It was November and Morrell heard the case of James Eugene Logan, a homeless man charged with misconduct, disturbance of the peace and trespassing, as he went looking for food at a Mexican restaurant in Columbia, Missouri.
Logan was unlikely to win his case under the best of circumstances. But that’s not really what his attorney, Matthew Mueller, a private attorney who takes on public defender cases on a contract basis, argued with the judge. Mueller filed a motion to dismiss the charges because Logan was not represented by an attorney in the two earliest moments of the case: the indictment, when Logan heard the charges against him; and a bond hearing where he had an opportunity to argue that he should not be held in prison.
In recent months, Mueller has filed similar motions in counties across Missouri. He argues that these two hearings are “critical stages” in a criminal trial. But in most jurisdictions — the city of St. Louis being an exception — there is no provision for penniless defendants to be represented by an attorney in these early stages. That’s because it takes time for an individual to apply to be represented by a public defender and for the state to determine if they qualify.
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That means poor people are likely to spend extra time behind bars, Mueller says, and such deprivation of liberty is also a violation of their Sixth Amendment right to an attorney.
Mueller is well known to some of the judges he challenges. He is the former public defender who won a 2019 case in which a unanimous Missouri Supreme Court ended the practice of incarcerating poor people because they could not afford to pay their bills for previous prison terms.
At the November hearing, Morrell challenged Mueller. How exactly was she supposed to determine if a defendant was short-term destitute?
“You’re telling me that the moment someone walks through that door, right, for an indictment, whether on video or through that door… I’m supposed to brew a potion to establish that person is destitute?”
Yes, said Mueller. The judge could start, he suggested, by asking a few simple questions. Do you have a job? Can you afford a lawyer?
Morell disagreed. Mueller lost the case.
But this month, another judge in an unrelated case added zest to Mueller’s argument that the Missouri Supreme Court or the Missouri legislature must print a prescription for the potion. On February 8, in central Missouri, Judge William Hickle ruled that such lists were unconstitutional in a case involving waiting lists for the public defender’s office.
The lawsuit underlying the case was filed in 2020 by attorneys from the American Civil Liberties Union and the MacArthur Justice Center. They argued that Missouri was violating the civil rights of the defendants by underfunding the public defender’s office, to the point that people were often put on waiting lists for an attorney. In the time since the lawsuit was filed, the legislature has increased the funds for public defenders. Currently no waiting lists are used.
But Hickle’s decision also addressed the issue Mueller raised. “Within days of a defendant being granted the right to counsel on first appearance, the defendant typically encounters critical stages that require the presence of counsel,” Hickle wrote. One of those stages is a bail hearing, “which requires the state to provide counsel for the defendant at the hearing,” he continued.
The ruling upheld (and lost) every argument Mueller had made (and lost) in circuit judges across the state. And within days of the verdict, Mueller had sent notices to the various courts where he has appeals on pending cases. Hickle’s ruling, if it stands, will force Missouri to write its potion, Mueller believes.
There are models that will follow. In the 22nd Judicial Circuit in St. Louis, judges pay a number of private attorneys to represent potentially impoverished clients at indictment and bail hearings. This model is similar to what the Maryland Supreme Court ordered in 2014 after a lawsuit found it was unconstitutional not to provide defendants with an attorney at such hearings. More than a dozen states guarantee a defendant the right to an attorney on a first appearance before a judge. The American Bar Association has promoted the practice for more than two decades.
The potion isn’t that magical. It only requires the judicial and legislative obligation. Otherwise, Missouri judges will continue to keep poor people in prison, in violation of their Sixth Amendment right.
“If Judge Hickle’s ruling is upheld, the Missouri courts must create a system that allows for the appointment of an attorney,” Mueller said. “How does that work? The Missouri courts need to come together and start discussing this.”
St. Louis Post-Dispatch Subway columnist Tony Messenger thanks his readers and explains how to get in touch.
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