Supreme Court to consider right to counsel at initial hearings

The Missouri Supreme Court is preparing to determine whether indigent defendants have a right to a lawyer at the earliest stage of their criminal cases.

On Sept. 26, the high court accepted two cases addressing whether arraignments and initial bond hearings are “critical stages” that require defendants to have assistance of counsel.

Citing those transfers, the Court of Appeals Western District on Oct. 10 transferred two similar cases to the Supreme Court for final rulings.

Briefing has not begun, and it’s not yet clear if all four cases will be argued together. Matthew Mueller of MGM Law in St. Louis, who leads all four cases, said the high court will have an opportunity to change a system that he argues disadvantages defendants from the get-go.

“They’re being held in custody for no other reason other than that they don’t have counsel,” he said in an interview.

Mueller’s four unrelated clients were arrested on various charges and initially appeared in court without counsel. As a result, they entered pleas and were subject to bond conditions without a lawyer to argue on their behalf.

In the most recently decided case, for instance, defendant Tiffany J. Mills, who was convicted in Jackson County of assaulting a woman she thought was sleeping with her boyfriend, spent a week in jail on a $250,000 bond while the case was referred to the public defender’s office for screening. Once her defender came into the case and sought a bond reduction, Mills was released her on her own recognizance.

Mueller argues that Mills and the other defendants he represents were disadvantaged by that lack of counsel and that their convictions should be reversed for violations both of Missouri court rules and the constitutional right to counsel. So far, that argument has failed in the Court of Appeals.

In June, the Western District in State v. Woolery affirmed the defendant’s conviction on drug charges in Pettis County despite his lack of a lawyer at his initial arraignment by video. Robert Woolery gained a lawyer a week later, though his counsel’s attempt to reduce his $200,000 bond was unsuccessful.

In September, the Southern District relied on Woolery in affirming the conviction of Lorandis Phillips on robbery and assault charges in Scott County even though he wasn’t represented by counsel at his initial appearance. Later that month, the Western District reiterated its holding in Woolery in affirming the conviction of James Logan on charges of threatening a restaurant owner in Boone County.

The four cases held that, while U.S. Supreme Court precedent requires a lawyer at any “critical stage” of a criminal case, initial court hearings didn’t necessarily fall into that category. In Woolery, for instance, the Western District noted that the defendant didn’t win release on bond even with the help of a lawyer.

“Thus, Woolery cannot show that merely having counsel move for bond reduction sooner would have had any effect on his pretrial detention or, more importantly, on his defense, which is the ultimate objective of the right to counsel,” the court said.

As the court put it in the later Logan case, the lack of counsel at those hearings was a “harmless error” even if it were required by the law.

“The hearings did not result in Logan irrevocably giving up any important rights or potential defenses, and nothing from the hearings was used as evidence against Logan,” the court said.

Mueller argues that unrepresented defendants face many potential pitfalls at their initial hearings, ranging from missing the deadline to seek a change of judge to potentially making incriminating statements. He described a hearing he saw at which the defendant admitted to using meth.

“I’m cringing the whole time,” he said. “I’m sure these judges are uncomfortable doing it too. These judges would prefer having counsel speak for these defendants, rather than have the judge address the defendants personally.”

However, Mueller acknowledges the practical difficulties of his argument. Because the public defender’s office must investigate defendants’ indigency status before taking a case, any lawyer at an initial hearing would have to come from the private bar. No system exists to persuade or require private lawyers to take such cases. And those that do take on such cases likely would need time to understand the facts and formulate an argument for bond reduction, which would necessarily leave the defendant in jail in the meantime.

“I could see why a lot of people would be uncomfortable with this, a lot of attorneys,” Mueller said. “I’m really the only one making this argument.”

The cases the Supreme Court took are State v. Woolery, SC100170 and State v. Phillips, SC100247. The cases the Western District later transferred are State v. Logan, WD85831; and State v. Mills, WD85624.