Every five minutes, public defenders in Missouri do something that once was almost solely the province of law firm lawyers: They’re tracking their time. For the 320 lawyers in the state public defender’s office, it’s an unwelcome task — but one that might hold the key to their future and could blaze a path for other beleaguered defenders nationwide.
"We had to bite the bullet and do it," said Cathy Kelly, who heads the office. "It’s a huge challenge, a huge sea change…but good things will come of it in the long term."
Only a handful of public defender offices around the country require their lawyers to track their time. Most don’t want to: They complain it smacks of a corporate legal culture that runs counter to the public defender ethos. Plus, it’s one more demand on lawyers already drowning in work.
But for Missouri’s defenders, who last year handled 86,000 cases, timekeeping could prove to state officials — with solid data — that they’re stretched too thin and need relief, Kelly said.
The undertaking goes beyond simply tracking time. It will allow the first rigorous analysis of just what public defenders are doing, and are not doing, and what they should be doing, with the goal of developing new, evidence-based caseload limits.
"We’re looking at a cultural revolution," said Georgetown University Law Center professor Stephen Hanlon, who chairs the American Bar Association’s Indigent Defense Advisory Group. The organization is underwriting the analysis in the hope that it will provide a model for other public defenders across the nation.
In the 50 years since the U.S. Supreme Court decided Gideon v. Wainwright, giving poor people accused of crimes the right to free legal representation, the No. 1 problem in meeting that mandate, as far as public defenders are concerned, is their crushing caseloads. With too much work and too little time, the quality of representation suffers, to the point that some lawyers argue they cannot fulfill their constitutional, statutory and ethical obligation to provide effective assistance of counsel.
WHAT IS TO BE DONE?
The question is: What to do about it? Public defenders "have been underfunded and overwhelmed with cases for years," said Norman Lefstein, dean emeritus of Indiana University Robert H. McKinney School of Law and a former director of the Public Defender Service for the District of Columbia. "But they don’t have the data to go to their funding authorities" to bolster their pleas for more resources.
The Missouri project aims to change that. The state ranks 49th in the nation for per capita spending on indigent defense, according to state auditor Thomas Schweich. Hampered by a chronic lack of money, Missouri’s public defender commission in late 2007 took a bold stand. The commission said that if any of the public defender’s 42 district offices had too many cases to handle for three months in a row, that office would temporarily refuse to accept any new assignments.
The test came in 2010, when 22-year-old Jared Blacksher was charged with burglary and forgery in Christian County, in southwest Missouri. The district office had already reached its maximum caseload for the month, and told the court that it could not represent Blacksher. Christian County Judge John Waters balked, ruling that "under the law of the Constitution and the Sixth Amendment, I have no choice but to do what the law requires and appoint the Public Defender," according to court papers. The public defender commission sued, asking the Missouri Supreme Court to validate its maximum-caseload rule.
In a landmark ruling in July, the state’s high court did so. "The Sixth Amendment right to counsel is a right to effective and competent counsel, not just a pro forma appointment whereby the defendant has counsel in name only," the court held. "The trial court exceeded its authority by appointing the public defender’s office to represent a defendant in contravention" of the maximum-caseload rule.
It was a huge win — the first ruling of its kind in the nation, according to Georgetown’s Hanlon, who represented the public defender’s office in the case pro bono. "This is the beginning of a new generation of indigent defense litigation," he said. "Missouri must be given enormous credit to say that this deal" — providing indigent defendants with inadequate representation — "can’t stand anymore."
Last week, the Florida Supreme Court ruled that the Miami-Dade Public Defender’s office could withdraw from felony cases due to excessive caseloads.
But in Missouri, the court decision was only half the battle. In a hard-hitting report issued three months later, state auditor Schweich zeroed in on a fundamental problem: The public defender caseload limits had "no support or basis."
"The Missouri State Public Defender lacks sufficient information to accurately determine the resources needed to manage caseloads," Schweich wrote, nor did it have "sufficient support for the data and methodology used for protocol calculations."
In other words, the caseload limits — what the office relied on to justify turning away new assignments — had no empirical basis. They were nothing but "various unsupported assumptions and estimates."
As Kelly, the director of the office, put it, "He pulled the rug out from under us."
Like almost every public defender’s office in the country, Missouri largely relied on national caseload guidelines set in 1973 by the National Advisory Commission on Criminal Justice Stan­dards and Goals. The commission recommended that lawyers handle no more than 150 felonies per year, or 400 nontraffic misdemeanors, or 200 juvenile cases, or 25 noncapital appeals.
The numbers are still widely cited. But Indiana’s Lefstein, author of Securing Reasonable Caseloads, published by the ABA in 2011, said they were "never based on anything but conjecture." Now, 40 years later, Lefstein calls them "absolutely worthless."
Schweich made it clear that Missouri needed to do something new. "It is imperative," he wrote in his report last year, "that staff hours be tracked, analyzed, and used to determine staff hours needed to meet the caseload for each office."
Missouri is not the first public defender’s office to track time. Public defenders in Lancaster County, Neb., have kept tabs on their hours since 1980.
Dennis Keefe, who has headed the 19-lawyer office for 34 years, said the effort was not born of any grand vision, but simply because the county was picked as a test site for a new case management system that required timekeeping. "We were accidental pioneers," he said.
Initially, it was not a popular undertaking. "We went through a period of time where there was a lot of turmoil. People were upset and didn’t understand the need for it," he said.
But over the years, the value has become apparent. The clearest demonstration came in 2008, when the Univer­sity of Nebraska Public Policy Center used 28 years’ worth of the office’s timekeeping data to conduct a workload study and come up with customized caseload standards.
The Lancaster County standards are lower than the 1973 national numbers — 110 felonies per lawyer per year, rather than 150. But Keefe’s office has been able to use them in court as the basis for withdrawing from cases once they reach the limit.
During the first 12 months after the study was concluded, judges allowed the office’s public defenders to withdraw from 29 felony cases, 275 misdemeanors and 46 juvenile cases and appointed private counsel instead. "If you are in a system that is overloaded to the point of not being able to provide competent legal work, something has to be done," Keefe said. "This is best way I’ve seen for our office.…Measuring what you do gives you a leg up."
As validation, he points to the local prosecutor’s office, which just hired the same researcher, Elizabeth Neeley, to conduct its own caseload study.
The effort in Missouri goes beyond tracking time, although that’s where the lawyers are starting. Since March, defenders have been recording how they spend their days — not just legal work, but everything from waiting at the jail for meetings with clients to photocopying documents. Staff members track their time, as well. The requirement to do so is expected to be permanent.
Public defenders lack the luxury of their law firm counterparts, who might spend an entire day working on one matter. "It’s a challenge when you’re juggling so many cases," Kelly said. "It’s not like our lawyers sit down and work on a case for an hour. They’re lucky to work on a case for five minutes. Trying to track this is a significant challenge, and also really highlights the challenge of providing quality representation if you never spend more than five minutes on a file."
Working with audit firm RubinBrown LLP, which is providing some of its services pro bono, the office will conduct surveys to determine what its lawyers aren’t doing — say, investigating charges against a client, or even the most cursory web search about an expert witness for the prosecution.
Then, a so-called "Delphi Group," comprising leading private lawyers, veteran public defenders and other experts, will review the findings and make recommendations about what the lawyers should be doing, and how much time they need to do it.
At the end of the day, the effort is designed to produce caseload limits based on solid data and analysis, limits that would satisfy the state auditor and justify fully funding the office.
"This could have implications well beyond Missouri," Lefstein said. "It’s part of a large effort to change the culture of public defenders so they can do a far better job of making their case for adequate resources."
Jenna Greene can be contacted at email@example.com.