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February 9, 2010 |
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| October 02, 2008 |
By: Jordana Mishory |
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n a foundering economy with tight employment prospects, a new West Palm Beach-based state agency created as a backup public defender’s office is having problems retaining lawyers, suffering massive turnover in its first year.
At least 26 attorneys and staffers have left the office — including many who were forced out. That is almost a third of the 79 employees hired since September 2007, according to records obtained by the Daily Business Review.
And employees of the Office of Criminal Conflict and Civil Regional Counsel in the 4th District Court of Appeal region complain that they did not have basic tools and supplies — including Internet access — for months, making it difficult to do the work required of them.
The departures aggravate problems faced by an agency that many critics charge is underfunded and poorly operated. Many criminal defense lawyers have alleged that the office is not equipped to handle its constitutional mandate of representing poor people — including those facing the death penalty.
The first employee left in January, and it’s been a steady trickle since then.
A number of the people have been fired, and others left when faced with dismissal, according to sources familiar with the office who spoke on condition of anonymity. Others who quit of their own accord cited bad management, heavy workloads, poor working conditions and inadequate pay. Some said they left because they were forced to take cases above their experience level.
Headed by Philip Massa, the Office of Criminal Conflict and Civil Regional Counsel handles criminal cases when public defenders declare conflicts and civil cases for indigent clients in the six-county 4th DCA region.
In addition to high turnover, Massa’s office and others were slow to get off the ground under a law setting them to open last Jan. 1 at the latest. The Fort Lauderdale office, which opened in a high-rent high-rise on tony Las Olas Boulevard last spring, set up Internet access for the first time in August. Attorneys and staffers sat on folding tables and chairs for months. They had few computers and copiers.
Complaints from former staffers have prompted several officials to take a closer look at the office.
Chief Palm Beach Circuit Judge Kathleen Kroll said she plans to review the office’s representation. Citing the chief judge’s responsibility to monitor capital cases, she said she recently pulled the files of the two Palm Beach Circuit death penalty cases assigned to Massa’s office to see how they are progressing.
“There’s been some concerns raised, and we’re not sure if it’s just disgruntled employees or legitimate concerns about the office,” Kroll said. She wants to meet with Massa.
The Broward and Palm Beach public defenders plan to meet with each other to discuss the conflict counsel office.
Attorney Anthony Tabasso, who was fired from the office in June, said office conditions led to a frustrating work environment.
“I could not concentrate on the law. Imagine if in your office your computer didn’t work, the Internet didn’t work, you didn’t have phone service,” he said. “It was like walking into a war zone and trying to organize it.”
He said he often found himself going to Publix to make copies of motions. Attorneys did much of their online work from home or from other offices.
Three complaints have been filed by former staffers with the governor’s office, sources said. One has been dismissed. The governor’s office could not confirm the status of any complaints by deadline.
Massa did not return repeated calls for comment by deadline. The one time the Review reached him on his cell phone, he said he was in a meeting and hung up.
Kerri Utter, one of the supervisors in Fort Lauderdale conflict counsel office, declined comment.
The new agency was designed to ensure that all defendants receive effective counsel as required by the Sixth Amendment of the U.S. Constitution. Defendants who cannot afford private lawyers have been guaranteed counsel following a 1963 U.S. Supreme Court decision. This agency is designed to take cases that the public defender conflicts out of, either because the office is representing an alleged co-conspirator or has represented someone involved in the case, such as a witness or victim.
State Sen. Victor Crist, R-Tampa, who spearheaded the legislation that created the conflict counsel, did not return calls for comment by deadline.
The Republican-controlled state Legislature created the five offices to curb what it saw as exorbitant bills from private attorneys who took cases on a rotating basis. Although the offices were initially slated to open by Jan. 1 at the latest, a legal challenge by the state’s criminal defense bar threw a wrench in the plans, leaving the offices in limbo until the state Supreme Court upheld their constitutionality in March.
Public records show Massa started hiring employees to work in Broward, Palm Beach, Indian River, Martin, Okeechobee and St. Lucie counties shortly after he started Sept. 15, 2007. But the office has had a revolving door.
Massa fired his first two hires — assistant chiefs Michelle Migdal and Judith Migdal-Mack — without warning in March after using their Boynton Beach office for operations as he waited for the counties to provide space as mandated by state law.
Rafael Garcia, one of his other chiefs, departed suddenly in August.
Michael Takiff, who was brought on to supervise criminal cases in Fort Lauderdale, left the office last week.
Of the 26 departures, 10 lawyers and staff members stayed for less than two months. One lasted less than two weeks.
Sources familiar with the office who spoke on condition of anonymity said fired employees were told to leave immediately, a common practice in the business world. But in the justice system, the abrupt dismissals guaranteed that replacements would have nothing but case files to fall back on to familiarize themselves with clients and cases.
Tabasso, who worked in the Fort Lauderdale office from mid-March to mid-June, said he was fired first thing on a Monday morning on his way to court — with a full day of work and clients waiting at the courthouse. He was told to leave immediately.
When told of the turnover at the conflict counsel office, law firm consultant Joel Henning said new agencies often suffer growing pains.
“It’s possible that in the course of time, things will smooth out,” said Henning, a Chicago-based consultant with Hildebrandt International.
However, he said the turnover rate could indicate larger problems.
“I’m not familiar with the particulars here, but it appears to me that they may have tried to do too much too soon with too little money,” Henning said. “The real losers here are the defendants who are not being adequately represented or who are finding turnover in their own representation.”
Broward Public Defender Howard Finkelstein said he recognizes the problems caused by turnover for clients. “When you have high turnover, that means you’re constantly in a situation of having too many lawyers with too little experiences and not enough resources to shore them up,” he said.
Finkelstein said his office has a 33 percent turnover rate and noted the importance of experienced attorneys mentoring newcomers.
Critics claim the conflict counsel offices were woefully underfunded from the start. The 2008 state budget provided for a total of $7.1 million for the 4th DCA office and its allotted 63 positions. According to records obtained by the Review, more than 15 percent of these positions are open.
The Legislature gave Massa a raise in July from $80,000 to $100,000. One of his chiefs, Jennifer Hixson, got a $17,000 raise to take her salary to $77,000. Some of the other employees also saw increases in salary.
Finkelstein said he is sympathetic to the struggles of starting an office from scratch. Taking charge of the public defender’s office was a “mammoth undertaking,” requiring him to become an instant expert on state legislation, budgets and personnel, Finkelstein said.
“But when I took over, I had an infrastructure,” he said. “I had in place at least a shell that was a workable law firm. Mr. Massa comes in and has to start it up from the get-go from nothing. He doesn’t have a desk and a chair, let alone an office. … And he’s coming on board at a time where no governmental law firms are receiving sufficient funding.”
Finkelstein noted that Massa also has to deal with multiple counties.
Public defenders and prosecutors around the state are losing qualified attorneys over pay. Last week, the Broward County state attorney’s office announced it would be sending all employees home without pay for nine days in the next nine months.
Miami-Dade Public Defender Bennett Brummer successfully sued to allow his office to decline third-degree felony cases for budget reasons, but the decision has been appealed. Cases discarded by public defenders would be assigned to the conflict counsel office in Miami.
Finkelstein said he has heard rumors and complaints about the conflict counsel office from some ex-employees.
“It gave me pause as to whether poor people were receiving the quality of representation and treatment that they’re entitled to,” Finkelstein said in an interview. “I don’t know whether or not the rumors are true, but it has certainly raised at least a warning that gives rise to questions that need to be posed.”
He said he plans to speak to Palm Beach Public Defender Carey Haughwout about concerns and potential problems about the office.
Haughwout said high turnover makes for “very unstable representation.” When told what the Review found, she said that’s much higher turnover than in her office.
“It’s difficult because you should be investing and training, and those investments are gone when people leave,” she said.
Former conflict counsel staffers speaking on condition of anonymity complained of low morale, poor leadership and a lack of people to go to for guidance. They said they were saddled with high caseloads and could be assigned cases above their experience level. Through it all, they said complaints fell upon deaf ears.
In March, former conflict counsel attorney Nicole Hunt Jackson filed a complaint with the governor’s inspector general that offers a damning glimpse of the first few months of the office. Jackson, who worked for the office from Jan. 8 to April 11, sent the complaint charging mismanagement and “a continuous pattern of managerial abuses.”
She was fired three weeks after filing the complaint, which was recently dismissed, Jackson said. The governor’s office did not respond to questions by deadline.
“They are having people handle cases that they were not hired to do,” Jackson said. She said she was hired to handle dependency cases but was pressed to take criminal cases without training.
Attorney Omar Ghaffar, who worked in the Fort Lauderdale office from May to September, said he was hired as a civil attorney, and his managers assigned him to criminal cases.
“I told them straight out that I’m not feeling comfortable doing these murder cases,” the former Broward assistant public defender said. He said he was assigned to cases he was barred from taking as a private attorney under the registry system that was in effect before the conflict counsel’s creation.
Ghaffar said he and his colleagues were collecting cases at a far greater clip than he could resolve them. “The pile was growing faster and faster than it was able to shrink.” He blamed many of the office’s problems on a lack of funding.
“The government tried to cut costs, and it’s creating a backlog of work that is being thrust upon the attorneys,” he said. “You have a lot of very serious cases being distributed to that office.”
Ghaffar said the office got Internet service the week before he quit in early September and the lack of online access impeded work because it is necessary to do legal research online and to e-mail prosecutors.
“It was kind of a ghetto operation for awhile,” he said, noting that many of the problems involving office equipment had been rectified. Ghaffar said he has heard that since he has left, the office has hired more criminal attorneys and is moving to address some of the problems.
Attorney Jim Elkins, who covers the Belle Glade courthouse for the conflict counsel office, said he is not really in the loop because he works on a contract basis in his own law office. From his vantage point, he said, it appears Massa had a tremendous task in launching a new arm of government.
“This is an enormous undertaking, and the way it is set up is very difficult. It will take some time to iron out all the problems that may occur,” Elkins said.
He said he doesn’t think too many people are in favor of the new bureaucracy.
“I don’t think anyone, especially in the Legislature, took into account how large an undertaking this actually was when they set it up,” Elkins said.
Jordana Mishory can be reached at (954) 468-2616.
Kathleen Kroll photo by Melanie Bell |
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