Gov. Nixon won’t have to serve as defense attorney

A state judge said the head of the public defender’s office can’t appoint Governor Jay Nixon to work a criminal case.

Cole County Judge Patricia Joyce ordered Thursday that the public defender withdraw its request to change lawyers in the case of John Quehl. Michael Barrett, head of the Office of the Public Defender, delegated the governor as Quehl’s attorney, citing an underfunded department with unmanageable case loads per attorney. He relied on a Missouri law that gives his office the power to “delegate legal representation of any person to any member of the state bar of Missouri.”

Nixon’s office battled that move, claiming only judges have the power to pick private attorneys for inmates who can’t afford their own lawyers.

“From the outset, it was clear that the executive director of the Office of Public Defender did not have the legal authority to appoint private counsel,” Nixon said in a written statement. “It is my hope that following today ‘s order denying this patently unlawful action, the Office of Public Defender will now return its attention to the job it has to do, and the resources already available with which to do it.”

Judge Joyce’s order relies on a Missouri Supreme Court case from 2009 involving the state’s Public Defender Commission. Part of the opinion there clarified that the director could assign lawyers “if the assigned counsel is paid for the work he or she is designed to do.” Joyce agreed with that case, and the argument by Cole County Prosecutor Mark Richardson, that only judges could appoint lawyers.

Quehl’s case will go back to court on September 7. Jefferson City police wrote in a probable cause statement that Quehl, 60, “lost control” of his car on Highway 50, driving off the road and flipping his car just before 2 p.m. on Halloween 2014. A three-year old and four-year-old in the car were hurt, the former thrown from the car. Police say Quehl told them he had been drinking, and “observed signs of intoxication” when conducting a sobriety test. Cole County prosecutors charged him five months later with two counts of second-degree assault.

Barrett and Nixon’s offices have sparred over the level of funding for the public defender’s office. Funding levels have varied the last several years, but FY 2017 marked a slight increase to the budget. The budget for the office has gone up by 15 percent since Nixon took office, he has pointed out throughout the summer. Barrett, though, claims part of those increases include money not authorized to hire more attorneys – what his office needs most to provide better legal services. Costs of things like depositions and research has gone up in the time their budget has increased, but Barrett said he’s been unable to fill many positions he’s lost this fiscal year.

Barrett did not comment on Judge Joyce’s decision Thursday night.

Nixon wrote he “always supported indigent criminal defendants,” hoping that Barrett would move forward on points raised in a 2012 audit.

“The Office of Public Defender should strive to improve the efficiency of its operations before asking the taxpayers for more money,” Nixon said, “including taking action to recover the more than $70 million in uncollected legal fees identified in the most recent state audit of the agency by the Missouri State Auditor.”

The Public Defender’s Commission still has a pending lawsuit in Cole County against the governor’s office over his July withholding of $3.5 million. The Attorney General, who represents Nixon in this case, has asked for a dismissal, and Judge Jon Beetem will take it up August 30 at 9 a.m.