JEFFERSON CITY — The first time I met David Thompson, he told me about his court anxiety.

It was fall of 2022, and we were sitting outside a courtroom in Franklin County. Thompson’s attorney was trying to get a judge to drop the felony domestic violence charge he faced. Early in Thompson’s court case, at a preliminary hearing, he defended himself without the benefit of legal advice.

As he faced the judge and prosecuting attorney on his own, his blood pressure rose.

“I wasn’t even sure what a preliminary hearing was,” Thompson, who lives in St. Louis, told me. “I thought I was going to pass out.”

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On Tuesday morning, his attorney, Matthew Mueller, stood before the Missouri Supreme Court and argued that what happened to Thompson should never happen to another citizen again.

In a preliminary hearing, prosecutors must convince a judge that there is “probable cause” against a defendant — enough evidence move forward with a case. It’s a “critical stage” of the process, Mueller argued, and it’s a violation of a defendant’s Sixth Amendment rights to legal representation if they don’t have an attorney. It can also cause irreparable damage.

“The defense can turn that preliminary hearing into a trial,” Mueller argued, “and that’s often done.”

Thompson appeared without an attorney in a case in which he was accused of violating an order of protection against a former boyfriend. He was accused of driving his vehicle toward the man and hitting him in the shins. The case was bound over for trial.

Mueller, a former public defender, eventually took the case and mostly won at trial. A jury acquitted Thompson of the felony charge but convicted him of misdemeanor domestic violence. He was sentenced to 7 days in jail, and the sentence was suspended.

That result, Mueller argued before the Missouri Supreme Court, proves the importance of a defendant having an attorney at a preliminary hearing.

“How did the absence of counsel contribute to the jury’s verdict?” he asked.

Mueller answered his own question: His representation of Thompson led to a reduced jury verdict because he had the opportunity to poke holes in the case. If Mueller had been at the preliminary hearing, Thompson’s long legal journey might have ended earlier.

The issue of whether defendants need lawyers at preliminary hearings was settled long ago in most states. In 1970, the U.S. Supreme Court ruled in an Alabama case that the preliminary hearing is a critical part of the legal process, thus invoking a defendant’s Sixth Amendment right to counsel. The Missouri Supreme Court later ruled that the Alabama case law applied in Missouri.

David Thompson stands before the Franklin County Courthouse on Oct. 4, 2022.

But the Thompson case is different, argued Kristen Johnson, a Missouri assistant attorney general. Johnson said Thompson’s constitutional right to counsel wasn’t violated. That’s because there were 19 months between the time he was charged and the preliminary hearing. He had a chance to get counsel, either a public defender or private lawyer, and he effectively waived that right by waiting too long, Johnson argued.

“The only conclusion that could be drawn from the record is that this defendant was able to obtain counsel and failed to do so,” Johnson argued.

Under questioning from Supreme Court Judge Mel Fischer, Johnson went further, arguing that the right to counsel at a preliminary hearing should not exist, in part because Missouri’s court procedures have changed significantly since the 1970 case. Newer rules on sharing evidence mean a defendant, with or without an attorney, has ample opportunity to see the evidence a prosecutor is relying on, she said.

In a legal brief supporting Thompson’s appeal, St. Louis University law professor Chad Flanders suggested the attorney general’s position would set the legal system in Missouri back more than half a century.

“With the benefit of counsel … Mr. Thompson might have been discharged at the preliminary hearing and his case might have never gone to trial,” Flanders wrote on behalf of the Missouri and National Associations of Criminal Defense Lawyers. “This Court should make clear that the preliminary hearing in Missouri is a critical stage at which the right to counsel applies.”

Indeed, that result would be a tragedy, Mueller argues, and not so much for Thompson, who already beat his felony charge, but for others in the future who might face the daunting task of standing before a judge as a prosecutor tries to put them in jail.

“It is easy for us as lawyers to take for granted the value of legal knowledge, and that is because we have it and work to cultivate it daily in the course of our professional lives,” Mueller wrote in Thompson’s appeal. “Each new case is an opportunity for us as lawyers to perfect our craft, and to advance the interests and cause of our client. None of this is even remotely possible in the case of an unrepresented defendant.”

Mueller is basically asking the court this question: Do lawyers matter?

That may not be the most popular argument in the current political environment, with the judicial system under attack from some corners. But for defendants facing jail time, it’s a life-altering question before the Missouri Supreme Court.

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