Stephen Reynolds is waiting – and watching.

One year ago, Reynolds, the District Defender in St. Louis County, convinced then-Presiding Judge Douglas Beach to recognize that his assistant public defenders were overloaded and to order possible remedies.

Long-time Prosecuting Attorney Bob McCulloch challenged that judicial order all the way up to the Missouri Supreme Court. But on Jan. 8, McCulloch’s successor Wesley Bell quietly dismissed that challenge, clearing the way for the state’s largest circuit court to tackle its caseload problem.

So what now?

“I’d like to move forward tomorrow,” said Reynolds, “but I don’t think that’s wise or prudent. Wesley Bell was elected with a progressive agenda. We’re going to pause a bit to see what that progressive agenda means for our caseload.”

Reynolds clarified that he doesn’t expect the new prosecutor’s policies to solve the caseload problem. But by the summer, he said, they might have altered the landscape enough to inform his request for fulfilling the judge’s order.

Bell has announced his intention to handle failures to pay child support as civil matters, and to move some offenders into diversion programs, which obviate the need to file charges. These policy changes, Reynolds said, could ease the burden on his attorneys.

And the burden, according to data provided by his office, is quantifiable:

As of December, each of the 13 assistant public defenders who worked full-time for the past year on non-juvenile cases originating in the county was handling a caseload that required more than twice the annual hours of a typical American worker (40 hours per week for 52 weeks).

The time requirement (or caseload) for each defender was calculated using a methodology put forth by RubinBrown, the accounting firm that authored a study on this issue in 2014 and determined that certain case types should be weighted more heavily because they require more work. Under that rubric, 10 of these defenders were at more than 250 percent capacity. One was at more than 300 percent.

Reynolds filed a motion in January 2018 for a conference on the issue, asking the judge to implement remedies authorized by the statute. McCulloch’s office objected on procedural grounds, arguing that other districts had filed similar motions with no success, and that Reynolds was improperly trying to set his own caseload standard.

The judge sided with Reynolds. In March 2018, he found there were “cognizable reasons” to conclude that almost all of the assistant public defenders had caseloads so heavy they “would be unable to provide effective assistance of counsel.”

He ordered the court to investigate possible remedies, including appointing private counsel to take certain cases. After prosecutors appealed, the Court of Appeals Eastern District found that the statute dedicated to caseload relief had ambiguous language on how a claim like Reynolds’ should go forward. The panel concluded that Beach had treated the case as an adversarial civil action, when in fact, the legislature had intended for it to be an administrative procedure. Nevertheless, the panel sent the case on to the Missouri Supreme Court because of its interest to the public.

But before the high court could decide on it, Bell dismissed the challenge during his second week in office. He wrote in a letter to the circuit’s new Presiding Judge Gloria Clark Reno that pursuing the litigation was not in either side’s interest.

“I am firmly committed to having adequate resources so that clients who cannot afford a lawyer can be competently represented, as is their constitutional right,” Bell wrote. “I support efforts to help the state public defender get those resources.”

Reynolds said the best solution would be for the legislature to approve more funding for his office, but that hasn’t materialized despite many years of effort. The next-best solution, in his view, would be appointment of private counsel. But something must be done, he said.

“Sometime this year we have to request to move forward on this order,” Reynolds said, “but it doesn’t make sense to make that request until everybody has better information on the impact of some of the reforms [Bell] would like to put into place.”

By Nicholas Phillips | Missouri Lawyers Weekly​