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September 2, 2010 |
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| September 16, 2008 |
By: Billy Shields |
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ruling allowing the Miami-Dade public defender to opt out of many felony cases has been stayed on appeal but, if upheld, it could revive the private attorney appointment wheel that was drastically cut by the state Legislature.
Miami-Dade Circuit Judge Stanford Blake ruled last week that the public defender would be allowed to withdraw from third-degree felony cases — up to 29,000 cases a year. Next in line to take them would be the Regional Office of Conflict and Civil Counsel.
The conflict counsel office has already said its mostly part-time staff can’t handle the additional caseload.
In the trickle-down system, cases where the conflict counsel declares a conflict go to private attorneys who have signed up to take the extras.
Under Blake’s decision, “you will have an overwhelming river of cases pouring into the system,” predicted Gene Zenobi, a Coral Gables criminal defense attorney and chairman of the wheel’s screening committee, which qualifies attorneys to work on felony cases. “The system is now in a critical stage of becoming inundated without a sufficient amount of help. It’s reached the point of critical insanity.”
The Legislature went hunting for an alternative to wheel appointments, creating the conflict counsel office last year. Advocates of the move have lauded it as a way to save the state money, but opponents worry that lawmakers may have trampled on the rights of indigent defendants by providing them with inadequate counsel.
The changes drastically shrank the volume of cases going on the wheel and reduced attorney fees as well. The wheel became an emaciated version of its former self. The Miami registry boasted almost 400 lawyers in its heyday but dropped to around 90 attorneys when the conflict counsel office opened in January. The wheel has recovered to about 190 attorneys, according to Rick Freedman, president of the Florida Association of Criminal Defense Lawyers.
The appointments come with a few harsh realities. Wheel attorneys get a flat rate of $750 for each third-degree felony on a fee schedule amended by state lawmakers effective in July 2007. Freedman noted attorneys on the wheel can request more money if a case takes longer than 74 hours. But if an attorney works that much, he said, “That’s something like $10 an hour.”
Many criminal defense lawyers voiced the same concern — that the fee schedule is so miserly that only inexperienced or indifferent attorneys would take appointments for that kind of money.
“The Legislature’s got to decide that if they’re going to continue to pass more laws, make more crimes and increase the penalties of those crimes, you must have qualified attorneys, and they’ve got to get paid a reasonable rate,” Freedman said. “We’re not asking for exorbitant fees. We’re just asking for reasonable compensation.”
State Sen. Victor Crist, R-Tampa, who heads the Criminal and Civil Justice Appropriations Committee, said the situation of mass conflicts inflating the wheel never should have come about in the first place. He believes the public defender acted improperly by trying to decline cases based on a conflict between a high case-load and constitutional duties to provide an adequate defense.
“We have 18 other public defenders across the state that are making it work,” he said. “If the Miami-Dade public defender wants to take a look at the other public defenders who are doing well with less, he could learn something.”
Broward Public Defender Howard Finkelstein has said he will almost certainly follow the example of his counterpart in Miami but said his office can scrape by for the time being.
After Gov. Charlie Crist reluctantly signed Senate Bill 1088 into law in May 2007, the rotating registry of private attorneys was essentially supplanted by the Conflict Counsel Office. The bill made the Conflict Counsel Office the attorneys of next resort for indigent defendants when the public defender’s office has a legal conflict. It made wheel attorneys the third stop for indigent defendants, and dramatically reduced the pay schedule for those private lawyers.
Under normal circumstances when a poor defendant needs representation in Florida, the Public Defender’s Office represents him. In cases where the public defender had a conflict — for example, cases where there were more than one defendant — a judge previously appointed a wheel attorney to represent others involved.
Previously, counties were free to run the wheel as they wished. In recent years, wheel attorneys in Broward County were paid at rates that shocked Tallahassee legislators, who responded by gutting the wheel plan in favor of the Conflict Counsel Office.
Asked about the fee schedule, Sen. Crist said, “A hard-working legal counsel is a hard-working legal counsel, and they deserve to be compensated fairly for it.” But he added tough economic times mean attorneys must be austere for the foreseeable future.
But attorneys in the criminal defense bar worry whether such austerity might fly in the face of Gideon v. Wainwright, the seminal 1963 U.S. Supreme Court decision on a case out of Florida that established an indigent defendant’s right to a lawyer.
The state attorney’s office, which opposed the public defender’s effort to opt out of the cases, had no comment on its implications on the wheel. The Miami-Dade Public Defender’s office also declined comment.
Over the years, the wheel served as a training ground for the private criminal defense bar. Young attorneys could make enough money to sustain their practices and gain valuable experience in the courtroom and plea negotiations before moving up the food chain.
“We had a system once upon a time that was cost-effective and justice-effective in providing representation,” said Coral Gables criminal defense veteran Milton Hirsch.
He said he feared two possible consequences from Blake’s ruling — competent attorneys would decline to accept the $750 appointments or lawyers would take them on a wholesale basis similar to the old appointment structure in Broward County. Appointments used to be condensed in blocks and put out to bid. The low bidder could expect to receive a packet of 100 cases.
“Financial incentives were created for lawyers to invest in the absolute minimum amount of time for every given case,” Hirsch said. “It can be made to work, but it can’t be made to be just.”
Hirsch’s main point — the financial and political efficiency of the new legislation may be easier on the pocketbook in the short run, but it could violate the constitutional rights of indigent defendants and could be costlier over the long haul as the system floods with constitutional appeals.
Finkelstein says the potential effects of Blake’s ruling are not certain, but in the end, taxpayers may face more expense because the public defenders didn’t receive the funding they needed in the first place.
“When they go to the wheel and they start appointing private lawyers, this is additional lawyers the taxpayers will have to pay for that wasn’t budgeted before,” he said. “How does this play out? That’s also a mixed bag. Many good lawyers will refuse to take these cases for that amount of money.”
For Freedman, the situation in Miami is emblematic of a bigger issue — a disease spread by the Legislature when it changed the format for public defender conflicts.
If that representation is faulty, Freedman said it could be rough for victims as well as defendants.
“The last thing you want to hear about is young attorneys who aren’t qualified messing [these cases] up and having these crimes come back on appeal,” he said. Then the victim gets the short end of the stick one more time.”
Billy Shields can be reached at (305) 347-6649. |
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