Boone County Circuit Court Judge Stephanie Morrell had a question about “magical potion.”
It was November and Morrell was hearing the case of James Eugene Logan, a homeless man charged with misdemeanor peace disturbance and trespassing when he went to a Mexican restaurant in Columbia, Mo., seeking food.
Logan was unlikely to win his case under the best of circumstances. But that’s not really what his attorney, Matthew Mueller, a private lawyer who takes public defender cases on a contractual basis, was arguing about with the judge. Mueller filed a motion to dismiss the charges because Logan wasn’t represented by an attorney at the two earliest moments in the case: the arrangement, when Logan heard the charges against him; and a bond hearing, when he had a chance to argue he shouldn’t be held in jail.
For the past several months, Mueller has been filing similar motions in counties across Missouri. He argues that those two hearings are “critical stages” in a criminal case. But in most judicial districts — the city of St. Louis is the exception — there is no provision for independent defendants to be represented by an attorney at those early stages. That’s because it takes time for a person 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 a 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 is challenging. He’s the former public defender who in 2019 won a case in which an unanimous Missouri Supreme Court ended the practice of jailing poor people because they couldn’t afford to pay their bills for previous jail stays.
At the November hearing, Morrell posed a challenge to Mueller. How exactly was she supposed to determine if a defendant was independent on short notice?
“You’re telling me the moment somebody walks in this door, correct, for an arrangement, whether on video or walks in this door … I’m supposed to do some magical potion to determine that person there is indigenous?”
Yes, said Mueller. The judge could start, he suggested, by asking a couple of simple questions. Do you have a job? Can you afford a lawyer?
Morrell disagreed. Mueller lost the case.
But this month, a different judge in an unrelated case added momentum to Mueller’s argument that the Missouri Supreme Court or the Missouri Legislature will have to print out a recipe for the magical potion. on Feb. 8, in a case involving wait lists for the public defender’s office, Judge William Hickle in central Missouri ruled that such lists were unconstitutional.
The lawsuit underlying the case was brought in 2020 by attorneys for the American Civil Liberties Union and the MacArthur Justice Center. They argued that Missouri was violating defendants’ civil rights by underfunding the public defender’s office, to the point where people were often put on waits lists for an attorney. In the time since the lawsuit was filed, the legislature increased funding for public defenders. There are currently no wait lists in use.
But Hickle’s ruling also dealt with the issue Mueller has been raising. “Within days after a defendant’s attachment of right to counsel at first appearance, the defendant typically encounters critical stages requiring the presence of counsel,” Hickle wrote. One of those stages is a bond hearing, “obligating the state to furnish the defendant with counsel at the hearing,” he continued.
The ruling validated every argument Mueller has been making (and losing) before circuit court judges throughout the state. And within days of the ruling, Mueller had sent notices to the various courts where he has appeals of pending cases. Hickle’s ruling, if it stands, will force Missouri to write its magical potion, Mueller believes.
There are models to follow. In the 22nd Judicial Circuit in St. Louis, the judges pay a series of private attorneys to represent potentially independent clients at arraignments and bond hearings. That model is similar to what Maryland’s Supreme Court ordered in 2014 after a lawsuit found that denying attorneys for defendants at such hearings was unconstitutional. More than a dozen states guarantee a defendant the right to an attorney at an initial appearance before a judge. The American Bar Association has been encouraging the practice for more than two decades.
The potion isn’t all that magical. It just takes judicial and legislative commitment. Otherwise, Missouri judges will continue to keep poor people in jail in violation of their Sixth Amendment right.
“If Judge Hickle’s ruling stands, then the Missouri courts need to arrange for the creation of a system that will allow for the appointment of counsel,” Mueller said. “How is that going to work? The Missouri courts need to get together and start discussing that.”
Crusading attorney seeks change in Missouri so every defendant has an attorney at first hearing.