What is the Actual Cost Involved in the Indigent Defense of a Capital Case?

The constitutional right to counsel for those who cannot afford their own lawyer means that the government foots the bill for the defendant’s legal counsel. This is true for a great many criminal cases (and the expansion of the right to counsel continues with the United States Supreme Court), but it is especially important when the state is seeking the death penalty in a criminal matter. 

The Legalities: Legal Attempts to Satisfactorily Address the Crisis in Indigent Defense Costs

No one really challenges that an individual has the right to legal representation when his/her life is on the line. Many people challenge how to pay for that expense, and much has been – and continues to be – written about the complexities involved in indigent defense cost coverage


For example, in February 2010, the American Constitution Society for Law and Policy (ACS) released a study (.pdf) revealing fatal flaws in the procedures surrounding Texas’ indigent defense representation. Research was undertaken on a national scale by the Constitution Project and in April 2009, its results were released in a comprehensive, 232 page report on indigent defense entitled “Justice Denied: American’s Continuing Neglect of our Constitutional Right to Counsel (.pdf).” There, preeminent legal experts agreed that the current system is chaotic and failing, and offered twenty-two (22) suggestions for salvaging the methodology in which indigent defense is provided in this country.


The Practicalities: Where Does the Money Go?


There are not as many articles written that provide detail on the practicalities of representing the indigent defendant in a capital case. Perhaps lawyers assume that other lawyers know what’s being talked about – but that presupposes that others (including every taxpayer in this country) are not interested in the details. 


Actual costs involve not only legal fees and the expenses directly attached to the lead attorney’s efforts, as well as the additional legal counsel that must be involved in a capital case, but the expenses involved in a wide variety of other vital and necessary areas. These include expert costs, transcription fees, travel expenses, and other needs that rapidly contribute to the high cost of these death penalty cases.


1. The Attorneys’ Time


When the state decides to pursue the death penalty in a case, the prosecutor essentially makes two cases out of one.  This is because the entirety of the case – from preparation through all the appeals – will now deal with two trains riding on the same track: first, the determination of guilt or innocence (trial phase) and second, the determination of punishment – and whether the defendant will die for the crime (penalty phase). It will take more than one attorney to defend this case.


Two attorneys are going to be needed in a death penalty defense case. There is simply too much to do for one lawyer to meet his legal and ethical duties of representation otherwise. And, there’s the matter of death-qualification: in Florida, as well as most other states, an attorney cannot defend a capital case unless he’s been approved to do so, based upon education and past experience in similar matters. When the state is asking to kill a citizen, it’s not time for a greenhorn to hurdle a learning curve. 


Therefore, at the minimum, you have two attorneys who are working the case. Both will be experienced lawyers. Both will be able to bill a higher hourly rate than an newbie lawyer on any criminal matter. And, in indigent defense cases, it goes without saying that both will be earning much less on the indigent case than they would be on a paying client’s case (lost opportunity costs, from an accounting perspective). 


2. The Attorneys’ Direct Costs (Fixed Representation Costs)


Accompanying the defense attorneys’ personal involvement are all those fixed expenses that are tied to his or her legal service. Each lawyer has an hourly rate that must add up over time to a total amount of revenue that can cover his fixed expenses – the things that he has to have up and running in order to do his job. 


These fixed costs include all the basics: cellphone expense, office rent, equipment expense (buying the phone system, the copier, the computers, the printers, the fax machines), Lexis or WestLaw contracts (longterm contracts for access to legal research databases), electricity, even the costs of coffee (or a coffee service). 


These costs also include salaries for the paralegals, associate attorneys, staff investigators, firm couriers, and other support staff that work on the legal team to get things done. Those motions don’t get written, finalized, printed, faxed, and distributed to the court and counsel by the lawyer alone. Many people working together – and working hard, sometimes in very emotional and stressful times – get these things done. 


3.   Attorneys’ Travel to Visit the Client Behind Bars


Indigent defendants facing the death penalty usually aren’t out on bail. They’re usually living in a cell near the courthouse where their case will be tried. If a public defender is representing them, then his/her office might be nearby. However, if the court has decided to appoint an attorney to represent the defendant, then that lawyer will have to travel from his/her office to the jail in order to meet with the client. 


There may be lots of meetings between attorney and client in a death case. And never, ever does the lawyer get the economic advantage of the client coming to him. 


4.   Investigation Costs – Guilt Phase


First things first, it is the job of the criminal defense attorney to fight – and fight hard – against the prosecutor’s attempt to prove beyond a reasonable doubt that the defendant is guilty of the crime. This is essential for our system of justice. A lazy criminal defense attorney may let down his or her guard against insuring the rights established in our constitution (and our laws) are respected, and with an over-zealous state’s attorney, those rights will be trampled or ignored. It is only through a vigorous adversarial stance that all of us can feel safe in our freedom from government control. 


Therefore, a defense attorney in a death case must investigate every lead, every fact, every tidbit that makes up the case. The entirety of the prosecution’s case must be understood, and its weaknesses exposed. The circumstances of the crime must be understood independently of the state’s efforts. The defense must investigate independently exactly what happened in the underlying situation that resulted in the defendant being charged. To do otherwise means the defense just trusts the efforts of the state – and that’s dangerous (and unethical, and illegal). 


5.   Investigation Costs – Penalty Phase


Along with investigating the crime, the defense in a death penalty case must investigate all the circumstances that make up the state’s “aggravating factors” as well as determine the facts that can be argued as “mitigating circumstances” should the possibility of a sentence of death be reached in the trial. This investigation can be wide, covering lots of territory and time, as well as deep, involving numerous psychological components. 


Was the defendant mentally disturbed at the time? Is he mentally challenged to the point that he is considered “mentally retarded” under case precedent (and therefore not subject to the penalty of death)? Are there circumstances of abuse or neglect in his history than help explain the events and lead themselves to mercy? The investigation costs involved in the penalty phase can be just as costly as those in the guilty phase, maybe even higher. 


5. Consulting Expert Costs – Guilt Phase


No lawyer worth his salt is going to pretend that he’s an expert on everything. Good lawyers readily admit they’re not even experts on all areas of the law, referring clients as needed to divorce attorneys or tax law firms, or immigration counsel. 


In indigent defense cases, lawyers will need expert advise on a variety of facts and circumstances in order to understand what they’re dealing with – and yet, these experts won’t be needed to testify. Sometimes, consulting-only experts get the trial lawyer well-versed enough in the particular area (e.g., some component of forensics, say soil samples, or some area of psychological disorder, such as behaviors that suggest fetal alcohol syndrome) so that the testifying experts can be located and hired.


Rarely are these experts cheap, and they usually bill by the hour. The attorney usually knows them, they have a rapport, and maybe the discussions can be had over the phone, with the help of a courier service or delivery company. Costs will be kept as low as possible, but no expert worth the attorneys’ time is going to be inexpensive. They will charge a rate commiserate with their level of expertise. 


6. Consulting Expert Costs – Penalty Phase


Consulting experts in the penalty phase may be even more necessary than in the trial phase. Psychiatric consultations on the childhood facts and the current behaviors of the defendant may be needed in order for the attorney to understand what issues he or she is facing in mitigation. Does the defense team need to pursue physical testing or mental testing or both? The legal team won’t know, they’ll need to consult an expert to guide them. 


7.   Testifying Expert Costs – Guilt Phase


Testifying experts in the guilt phase will cover all manner of the guilt determination. Law enforcement experts, forensic accountants, crime lab technicians, there is an infinite number of professionals that may be needed to bring the full, factual story to the fact-finder in the case. 

Since their expertise, as well as their opinions in the particular case, will be subjected to review by the court before they are allowed to testify, their costs will include the completion of reports and the possibility of court hearings focused solely upon motions to the court on whether or not they should take the stand. The costs here, given their hourly rate, can skyrocket.


8. Testifying Expert Costs – Penalty Phase


After the defendant is found guilty, testifying experts that usually involve at least a doctorate level if not a medical degree will be needed. Mitigation factors involve a number of mental and physical factors that must be addressed. Psychiatric and psychological expertise is mandated. Psychiatrists and psychologists are never cheap, and again, since they are testifying, they may well file reports, and face courtroom scrutiny where they are essentially on trial as to their qualifications before they begin their work, providing an opinion on the underlying case itself. 


9.   Trial Preparation – Guilt Phase


Defending a capital case at the trial phase is an enormous undertaking. Every document must be reviewed, every witness’s recollection understood. Investigators’ contributions, expert opinions, and legal briefing must be threaded together into an understanding of what has happened to bring this defendant before this tribunal – and a defense must be mounted as to why he should be allowed to walk free. Hours and hours of attorney time is involved here, as well as those of the legal team. Trial itself may takes weeks or months, and preparation happens well into every night and weekend, preparing for the next day, the next week. It is very, very expensive. 


10. Trial Preparation – Penalty Phase


Preparation for the event that a guilty verdict is returned begins long before the defense rests. The defense team must dovetail its preparation for the guilt phase with its preparation for the penalty phase, although there may be some work done in preparation for trying the penalty phase that does not occur until guilt has been decided.  As described above, there is much, much preparation before a defense attorney will argue against the aggravating factors and for mitigating circumstances in a request for mercy when death is being deliberated. Experts, investigation, legal research, and other time-consuming tasks will be involved. It is not unusual for a single expert’s fee in a penalty phase to exceed $50,000.00. 


A Florida County Expert Invoice as an Example of the Detailed Costs Involved Here


How can an expert’s fee be so high? An example of the detail involved here can be seen in the online invoice made available by Gwinnett County, Florida, for use by experts. 


Note the hours that the expert is to complete on the form for the categories interview, research, consultation, report preparation, conference with attorney, trial preparation, attend court, and “other”. Assuming the expert charges $500/hour, and charges only a single hour for each of these categories (highly unlikely), the fee would be $4000.00 – and no expert is going to spend just one hour on these tasks. 


Death at the Hands of the Government is the Issue: Indigent Defense in Capital Cases Is Complicated and Costly Because It Should Be.


The right to counsel in a case where an American citizen has been charged with a crime, and the state decides to seek the punishment of death in the case, must stand as sacrosanct. It is an honor to be among those chosen to act as defense counsel in these situations. 


However, in all the debate of budgetary costs and the best methods of meeting indigent defense expense, too little light has been shed on how much effort and wherewithal must be undertaken in the fight to save someone’s life from capital punishment. Perhaps when more people understand how big the battlefield is, and how much work is involved in each of these cases, then the availability of funds to address the current financial crisis will be more easily found. 

Florida Capital Resource Center Website Is Up and Running

The Florida Capital Resource Center is non-profit and nonpartisan. Its goal is to assist attorneys throughout Florida who are representing indigent defendants facing the possibility of capital punishment.   

At the Florida Capital Resource Center, resources will be continually compiled by fellow Florida criminal defense attorneys and offered to Florida death penalty defense lawyers as a means to assist and support both their defense (guilt phase) and their mitigation (sentencing phase) of capital murder cases in Florida.

The purpose of the website to build an online presence for the Florida Capital Resource Center, and to assist the FCRC in its work, as it collects and disseminates top-quality legal resources as economically as possible to any and all Florida criminal defense lawyers that are defending capital cases. From the site:

"As counsel in nine death penalty trials and counsel in over sixty capital cases, I share your concerns about shortcomings in Florida’s capital litigation system, especially in light of critical budget shortfalls. Because of these concerns, I have formed a non-profit corporation, the Florida Capital Resource Center, to serve as an information source and clearinghouse for capital defenders in our State."
- Terence M. Lenamon, Executive Director

 Please take a moment and surf through the FCRC site, and send any comments or questions you may have.  Your thoughts are most welcome.


The Expansion of Constitutional Right to Counsel by the US Supreme Court - Who Pays?

According to the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."  What isn’t provided in this constitutional mandate is how the defense lawyer’s fees and expenses are to be paid.  The result of this financial myopia is a deepening financial crisis in Florida and across the country today.

 Applying the Constitutional Right to Counsel  

Over time, the constitutional right to counsel provision has been reviewed and applied by both legislatures and courts – always with a resulting expansion of its application.  For instance, a citizen’s right to legal representation in federal proceedings was initially set by statute and then approved by the U.S. Supreme Court in Johnson v. Zerbst, 304 U.S. 658 (1938), when our country was still suffering through the Great Depression.   State courts were a different story, however. 

Until the early twentieth century, those who could not afford to pay for their own criminal defense attorneys in state matters were dependent upon the local bar’s pro bono efforts.  Individual attorneys made their own personal decisions on their commitments of time and expense in representing the poor.  Legal Aid? Public Defender?  These terms were not known in this country before World War II (unless you looked at a select few metropolises like New York City, where a legal aid organization had been in operation since the late 1800s).   

Of course, historically this dovetails with an attitude that the practice of law was a “profession” not a “business,” where it was part of the profession’s honor and duty to undertake pro bono cases in their local area.  Today, we no longer turn a blind eye to the realities of a law practice operating as a business concern.  What was at one time a stigma – that lawyers work for a profit -- is an attitude that has not stood the test of time.   

Expansion of the Right to Counsel into State Courts – first, the felonies 

As the highest court in the land, the U.S. Supreme Court slowly began to hear cases coming before it that dealt with these state court situations, where state statutes did not require the particular state to provide a criminal defense counsel for the defendant.   While the nation was still reeling in the Great Depression, the High Court heard Powell v. Alabama, 287 U.S. 45 (1932) and held that states had to provide legal counsel to indigents in all state cases where capital punishment was at issue.  

 It took almost 30 years for the 6th Amendment to be applied to state felonies that did not involve the death penalty.  With Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court found that an indigent defendant, accused of a serious crime, was constitutionally protected and entitled to a lawyer, who would be appointed and paid for by the state.  With Gideon, the High Court had spread the shade of the 6th Amendment umbrella to cover all accused of felonies in either federal or state courts, regardless of whether or not the death penalty was at issue. 

 Horizontal Expansion of Right to Counsel – Particular Types of Indigent Defendants

 Within a short amount of time, the U.S. Supreme Court would take review of a number of other right to counsel situations, and continue widening its application to (1) children in juvenile delinquency proceedings (In re Gault, 387 U.S. 1 (1967))and (2) indigent defendants facing misdemeanor charges in state courts that involved possible loss of freedom (jail time) (Argersinger v. Hamlin, 402 U.S. 25, (1972)).

 Vertical Expansion of Right to Counsel – Stages of the Criminal Justice Process 

Having defined who would be covered by the right to counsel, the High Court also considered cases that delved into the issue of when the right to counsel would start to apply in a particular case.  Seeing justice as a poor person having the right to a lawyer long before he came before a judge, the U.S. Supreme Court issued a series of opinions in the mid-twentieth century that covered the indigent citizen almost from the moment that he or she first came into contact with law enforcement authorities, all the way to the point that he or she might theoretically be setting before the U.S. Supreme Court itself.   .   

For example, the Sixth Amendment right to counsel was held to apply in: 

 More Expansion – Into Quasi-Criminal Proceedings 

Like kudzu in the South, the reach of the 6th Amendment right to counsel continues to grow, moving past boundaries of the past. Today, indigent defendants in a range of proceedings that are not within the criminal justice arena proper are nevertheless within constitutional mandate. For example, indigent citizens alleged to be mentally incompetent and facing commitment proceedings are entitled by law to legal counsel. Indigent parents facing the loss of their paternal rights due to allegations of child abuse or child neglect are also entitled to state-funded legal counsel. There are many more. 

 Show Us the Money

 Awareness of the need to fund all these appointments of counsel has not gone totally unnoticed by the U.S. Supreme Court.  For example, Justice Powell pointed out that “available funding” was an acute problem back in 1972, when he concurred in Argersinger and its expansion of the right to misdemeanor cases carrying the possibility of jail time. Argersinger, 407 U.S. at 59. And, the Argersinger majority did tip its hat to the money issue when it opined that lawyers be provided when only fines where at issue would “impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.” Id., at 373.  

 Still, the economic realities of how lawyers are to be paid – and the expenses of litigation are to be covered – by states who are also responsible for paying the legal fees and costs of prosecuting the exact same case have not been a bull’s eye topic of the United States Supreme Court. State legislatures and the federal government are left with the implementation, and things are not going well. 

Aside from their personal determination to do their best for their clients, defense attorneys are constitutionally mandated to provide “effective assistance,” and their failure to do so in any criminal proceeding in which counsel appears can be the basis for appellate reversal of any conviction. Strickland v. Washington,  466 U.S. 688 (1984). Financially, the indigent defense matter may not be profitable – it may well be a loss leader on the firm’s docket – but legally and ethically, the case is not to be viewed any differently than any other case undertaken by the firm. 

 This is particularly difficult conundrum for Florida criminal defense attorneys who are death penalty qualified.  The expansion of the right to counsel in this country has grown to stretch beyond all reason the monies available for indigent defense in this state. Some defense attorneys have faced bankruptcy, and some judges have started making involuntary appointments (ignoring the attorney’s needs or desire to decline the case) in their frustration.  

 And no where is this financial crisis more grave than in the circumstance where an indigent defendant (sometimes suffering severe mental illness, mental retardation, or other significant handicap) is facing the possibility of death at the hands of the state for a charged capital offense. Particularly in these capital cases, the roar of injustice sounds most loudly.   

Our Prediction that California's Billy Joe Johnson Would Help the Fight Against the Death Penalty Proves True

Right before Halloween, we posted about the new Death Penalty Information Center revelation that focusing solely on a state's budget bottom line, capital punishment should be outlawed because it just costs too much -- and how Billy Joe Johnson's request to be sentenced to death in California only added fuel to that fire.  (Billy Joe wanted death because the digs at California's Death Row are so much better than those for lifers.)

Well, looks like that October prediction was right and Billy Joe Johnson is doing a lot to help the cause of Abolishing the Death Penalty. 

The Wall Street Journal's Law Blog is pointing to Billy Joe Johnson in California, and publishing a quote from Johnson's attorney that originally appeared in the Los Angeles Times -- Billy Jo isn't asking for Death Row because "...' he thinks conditions wiil be better, they are better," explains defense counsel Michael Molfetta. 

The Los Angeles Times has a lengthy feature article that actually goes into the details surrounding Billy Joe Johnson's decision (and yes, his request was granted and he has been sentenced to death by the State of California).   According to the LA Times, on California's Death Row:

1.  inmates get single cells, they don't have to share a two bunk cell

2. their cells are bigger than the standard maximum-security cells for lifers

3. inmates get better telephone access

4. they are allowed "contact visits"  by themselves, although the visit is in a see-through plexiglass booth (lifers have to visit in a communal hall, no one on one contact)

5.  they get breakfast and dinner served to them in their cells

6.  Lunch is served in the exercise yard, so they get to go outside daily

7.  Death Row inmates are allowed to visit with other Death Row inmates during the lunch hour

8.  Death Row inmates get to have TVs, CD Players, and the like in their cells

9. While other inmates are limited to six cubit feet of personal property, this doesn't apply to California Death Row inmates

10.  They get to wear jeans and chambray shirts

This description of life on California's Death Row is getting lots of attention -- all because Billy Joe Johnson's request has taken flight.  The prison authorities have good reasons for each of the list's purported "benefits" -- for example, Death Row inmates get more than 6 cubic feet of personal property space because their cases are so voluminous, they need more square footage than that for all the paperwork that their defense requires.  Similarly, they get more lenient phone rules than the usual inmate because they are literally fighting for their lives and there are times when communication with their counsel by phone is immediately needed and legally vital. 

Still, proponents of the Death Penalty may look upon this list with outrage and think that Billy Joe Johnson is somehow working the system by asking to die.  And, if that enables the Death Penalty Information Center's study on costs to get more footing, great. 

Because the goal is to end the death penalty, and if capital punishment is stopped for no other reason that it costs too much, fine.  The goal is to stop the State form killing people, period.

New DPIC Study Urges Repeal of Death Penalty On Solely a Budgetary Basis just as California inmate asks for death to get nicer Death Row digs

Today's news includes the story about the Death Penalty Information Center's new study of capital punishment costs.  Released this week, and looking solely at the bottom line, the DPIC analysis demonstrates that significant monies can be saved by eliminating the death penalty.  Since 1976, $2,000,000,000 (that's two billion dollars) has been spent on capital punishment in the United States that would not have been spent if the death penalty were not an option. 

Sure, the DPIC released its study this week in a blatant argument that today's financial times call for the end of the death penalty, regardless of the other huge arguments against capital punishment - morally, ethically, etc.   From the DPIC study:"[t]he promised benefits from the death penalty have not materialized .... If more states choose to end the death penalty, it will hardly be missed, and the economic savings will be significant."

Also in today's news:  an inmate in California is asking to be sentenced to death.  Why?  He's wanting to live on Death Row, because the prison facilities on California's Death Row are so much nicer than his current prison digs.   Billy Joe Johnson is serving 45 years for murder, and is in lockdown almost 24/7 every day.  He's waiting for the jury to return on a second murder charge -- he's been convicted, and he is waiting for his sentence.  Billy Jo is asking for his jury to come back with death, so he can move into a better residence. 

Seems like Billy Joe is helping the budgetary argument that the DPIC is advancing much more than he probably knows.  If any state budget should be looking for ways to cut costs, it's probably California....

Note:  The DPIC has published its new report on its website if you are interesting in reading the entire study.  Alteratively, the DPIC is offering a synopsis on its site if you don't want to go thru all the details.

A Must Read: Exonerated Florida Death Row Inmate Juan Melendez Gives First Hand Account of His Summary Arrest, 5 Day Trial, and 18 Years on Death Row Before Being Released as an Innocent Man

Today, Emory University posted an article detailing the talk that Juan Melendez gave to Emory's new Criminal Law Society.  (Amnesty International sponsored the event.)  It is simply a must-read for those interested in the current criminal justice system in the State of Florida, especially those dealing with the imposition of the death penalty in our state. 

Included in this article:

1.  Juan Melendez's description of his arrest as he sat with his co-worker, eating lunch, on a fine sunny day;

2.  His recollection of the trial itself -- the attorneys, the jury, the presentation of evidence;

3.  His memories of his defense attorney at trial and thereafter;

4.  What it meant to live on Death Row, including the rats, roaches, and temptation for suicide;  and

5.  The miraculous revelation of the true killer and the disrespectful release of Mr. Melendez thereafter by the authorities.

You must read this.  Juan Melendez is telling us quite a bit here....

The High Cost of the Death Penalty: Capital Punishment is Very Expensive

In these economic times, there has been significant media coverage of various states considering the banning of the death penalty -- not on moral grounds or arguments about its ineffectiveness in crime prevention, but on the simple argument that it costs too much.   That's right:  it is cheaper to keep someone incarcerated for the rest of their lives than it is to kill them, ending their life on a set calendar date. 

How can this be?  How is the death penalty so costly?

First, asAmnestyUSA points out, there are the trial costs.  When a prosecutor decides to seek the death penalty, the cost of litigation skyrockets.  Discovery -- investigation of the crime -- becomes more intensive and therefore, more expensive.  There is a heavier motion practice in a death penalty case.  And, remember, once the death penalty is on the table, attorneys are preparing for not one but two trials -- first, the conviction phase (deciding guilt or innocence) and then the penalty phase (determining the sentence). 

That second trial, the sentencing phase of the case, can be extensive in preparation and presentation.  Aggravating circumstances must be presented to the factfinder with evidence that is authenticated and admissible.  Mitigating factors must likewise be provided to the jury.  Often, expert testimony will be provided by several leaders in their fields (scientific or forensic experts, mental health experts, etc.).  Death cannot be imposed upon someone who has been found guilty of a capital crime without all due process efforts being exhausted.

Second, there are the appeals that must follow any complicated capital punishment case.  Post-conviction proceedings will be filed.  These will take time.  Appellate courts will grade the papers of the trial court to insure that the law has been followed.   One growing concern is insuring that the defendant had effective assistance of counsel during the conviction phase.  Sometimes, appellate courts will be asked to consider the revelation of new evidence or the reconsideration of old evidence based upon new technology (such as new DNA testing procedures).   The appellate process in death penalty cases is time consuming and expensive, as well.

What kind of numbers are we talking about here, in terms of cost?

The Death Penalty Information Center has compiled a list of studies done regarding various states in the country, and how much they might save annually if they banned capital punishment.  According to the DPIC, Florida would save $51,000,000 each year and California would save a whopping $125,500,000 each year.

That's annually.   Which means - using the DPIC numbers -- that over a five year period, Florida would save $255,000,000 -- that's a quarter of a billion dollars -- and California would save an astounding $627,500,000 during the same five years.  

Surely this practical, basic argument merits serious consideration by even the most ardent supporter of capital punishment.   Especially for a state that is currently handing out IOUs ....

In Depth Look at the Law: The Judges' Dilemma: They Have to Meet the Constitutional Mandate of an Indigent Defendant's Right to Effective Assistance of Counsel

At this juncture, we've got lots of criminal defendants needing constitutionally-guaranteed representation, and an overwhelmed public defender's office as well as a beleaguered OCCCRC. So, who's next at bat? The private attorney licensed by the State of Florida.

Let's consider the complex criminal case. Major felonies, multiple defendants. Criminal cases that involve more than two indigent co-defendants (or any case where both the Public Defender and the OCCCRC both have a conflict of interest) are handled by private criminal defense attorneys, who are then paid by the government for their time and expenses. Chapter 2007-62, § 27.40(2)(a), Fla. Stat. (2007).

How Big Was the Loss of Attorneys Willing to Take Appointments after 2007? Huge. HUGE.

Earlier, we discussed how the 2007 revision to the appointment statutes caused many criminal defense attorneys to take their names off the county lists of attorneys voluntarily making themselves available for appointment. It was not because these attorneys didn't want to represent the poor people of Florida - the changes in the statute made it impossible for them to do so. Many defense attorneys simply could not afford to do the work and stay open for business.

One news report has shown that after the Legislature's action in 2007, the appointment list for the Tenth Judicial Circuit dropped sixty percent (60%), leaving just one (yes, 1) lawyer who was legally qualified to defend someone, as lead attorney, in a capital case. (Don't you know that is one busy lawyer?)

Practically speaking, in the criminal courtrooms of Florida, defendants continue to come before the bench and announce themselves as unable to pay for legal counsel on their own. According to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 791 (1963) and its progeny, these folk are still deserving of legal assistance (the proverbial "effective assistance of counsel" under the 6th Amendment) and the government must provide them with an attorney. The judge has a legal duty he must meet.
Faced with Gideon, what are Florida Judges doing? Throwing attorneys under the bus sounds harsh, unless you're the attorney caught in the crossfire. Because that judge has to find an attorney somewhere, and the Legislature isn't giving that judge much of a choice.

What's to be done, when you are a judge facing a multiple defendant murder case and the demands of Gideon v. Wainwright? Well, if you're Circuit Judge Michael Hunter, setting in Polk County, you call over to your fellow judge in Hillsborough County and try and borrow a qualified lawyer. See if they'll travel over the county line and try and case or two. And maybe they will. If the travel's not too bad, and the county will cover the travel expenses, and his firm can handle the financial burden, maybe a dedicated defense attorney in the neighboring county will be available to help out.

It would be nice if the answer was as simple as "borrowing" from your neighbor. It's not. The other county may not have anyone to offer up.

The Involuntary Appointment List Begins Because Judges Need to Find Attorneys Somehow

Which leave judges frustrated and needing to move on their dockets. The judges' solution? They're just creating "involuntary appointments list" with all the local lawyers who hold themselves out as criminal defense attorneys being listed, A to Z. Then, the judges are making appointments from that list: picking names of attorneys at random, out of a hat as it were, with no consideration of the lawyer's finances, or more importantly for the client, the amount of his or her criminal defense experience.

In the short run, this is getting a lawyer with an indigent client. How well that client will be represented is at issue here, as is what the long term ramifications are to these members of the bar.

The Elephant in the Room: The Fifth Amendment Applies Here, Too.

Apparently, the crisis in counsel is so great that no one is looking much at the elephant in the room. Under the precedent long established by the Florida Supreme Court, even when the Sixth Amendment rights of criminal defendants to effective counsel are involved, the law does not allow unacceptably low, "token" compensation for these attorneys. And this is true when the attorneys have voluntarily undertaken the caseload, much less where they have been appointed via an Involuntary Appointment List. Makemson v. Bd. of Cty. Commissioners, 491 So. 2d 1109 (Fla. 1986); White v. Bd. of Cty. Commissioners, 537 So. 2d 1376 (Fla. 1989). It seems obvious that adequate compensation must be legally provided to attorneys who have been drafted into duty by frustrated judges.

Why? Aren't all lawyers rich? Easy answer is NO. And, even those who are successful won't stay successful long if they are involuntarily assigned to represent a defendant in a complex, time-consuming case essentially for free. There are so many hours in a day, and days in a week. If you're working on the appointment, you cannot be working on the case that generates revenue to pay the office salaries, the overhead, etc.

Kansas Supreme Court Gives the Answer the Legislature Doesn't Want to Hear: Pay the Lawyer or Dismiss the Defendant

Just as the Sixth Amendment protects the rights of the accused to legal representation, there are federal and state laws that protect the rights of the lawyer not to be forced out of business by involuntary servitude via judicial appointment. The truth is that these big appointments are the death's knell for many a criminal practice. And, according to the Kansas Supreme Court (which has already dealt with a lot of these same issues), the Fifth Amendment is violated when an attorney necessarily spending an "unreasonable" amount of time on indigent appointments in order to be effective is then caused a "genuine and substantial interference with his or her private practice[.]" State ex rel Stephen v. Smith, 747 P.2d 816, 835-36, 842 (Kansas 1987).

The Kansas Court succinctly identifies that elephant in the room: "[t]he obligation to provide counsel for indigent defendants is that of the State, not of the individual attorney". Id. at 850-51.

What if the money isn't there? Kansas answers: charges against indigent defendants must be dismissed if the government cannot provide adequate compensation to their attorneys.

What about those pro bono requirements?

Phooey. That dog won't hunt. The Florida Bar "suggests" 20 hours/year as charitable service for each attorney licensed in the state (Fla. Bar R. Prof. Cond. 4-6.1(b)). It's almost insulting to suggest that pro bono considerations should apply to the months of solid work that is required to effectively represent criminal defendants in major cases.

For over half a century now, there has been debate about whether or not attorneys are working as a profession or as a business. Clearly (look at the precedent dealing with lawyer advertising for details on this), it has been clearly established that law firms are run for profit, they are businesses, and there's nothing sinister or to be ashamed of because of this truth and fact. Pro bono work is a worthwhile activity. It is not meant to supplant the daily operations of the law firm.

Next week: The Ethical Duties of the Criminal Defense Attorney in Representing the Indigent

In-Depth Look at the Law: The Offices of Criminal Conflict and Civil Regional Counsel (OCCCRC) - An Unacceptable Situation for Everyone Involved

One attempt at solving the indigent defense problem was the creation of a state agency made up of five offices to be called Offices of Criminal Conflict and Civil Regional Counsel ("OCCCRC") by the Florida Legislature in Chapter 2007-62. The idea was that full-time attorneys on a set salary in these new regional offices would theoretically solve at least part of the judicial appointment problem by taking on public defender cases where there was a conflict of interest (which is common in multi-defendant cases) -- as well as supervising court-appointed attorneys in child dependency cases and assorted civil actions. Sounded good.

Truth is, the OCCCRC lawyers haven't even been given a fair shake, they've been asked to play the game without a full deck of cards. The OCCCRCs aren't even getting the basics to do their job.

For example, the Fourth District OCCCRC has complained that it doesn't even have ordinary supplies and internet access for months at a time. In today's world, how can an attorney represent a client effectively without internet access? Legal research, communication and filing with the courts, e-mail, etc. are all done over the internet. How any lawyer at the OCCCRC can practice law each day is a miracle in action, and my hat is off to them. No wonder there's such a high turnover there.

And, adding insult to injury, these OCCCRCs are being sued. That's right - they have become defendants in their own right. Apparently, several counties throughout Florida have taken the position that OCCCRCs are not "public defender offices" at all under Florida law. Using this legal argument, counties aren't legally responsible to pay for the expenses of their local OCCCRC (pursuant to Article V, section 14 of the Florida Constitution).

In May 2009, a Boca Raton Circuit Court Judge agreed with 25 Florida counties and ruled that the legislation that shifted judicial costs from the state to the counties was unconstitutional. According to the Circuit Court, the Florida legislature failed to find "that the law fulfills an important state interest before attempting the cost shift." This ruling now goes before the Florida Supreme Court, who has already heard arguments that the enacting language creating the agency was invalid and ruled that the OCCCRCs do pass constitutional muster.

Meanwhile, despite the lawsuits and the antiquainted working environment (do they even have computers? If so, how old are they?), some OCCCRCs just keep getting more and more work. Last year, the Third District OCCCRC was ordered by Judge Judge Stanford Blake of the Eleventh Judicial Circuit to take all new Class C felonies arising in Miami-Dade County, because the Public Defender there could not handle any more defendants because their caseloads were so high and their monies were being cut, too.

What are we talking about here? About 1500 new cases/month. Think about that. Fifteen hundred new cases a month to defend in a court of law, and you don't have internet access. Right.

So, right now the OCCCRCs keep operating, lawyers doing the best they can with the tools they've been given, and whether or not county coffers will have to pay for part of the OCCCRC budget costs is still a conflict worthy of Supreme Court review.

Next week: The Judges' dilemma - they have to meet the mandate of Gideon v. Wainwright.

Looking at the Current Fight over the Death Penalty in the State of Maryland

Maryland, like many other states, is reviewing its death penalty laws for purely cost-cutting reasons. However, there's something to be considered in the current media coverage of the Maryland debates - which are going on right now.

Why are the Maryland arguments so interesting to consider?

This is a particularly interesting jurisdiction to ponder since Maryland has the second-highest murder rate in the nation - due in large part to the homicide rates for the metropolitan area making up Baltimore, Maryland.

In other words, the argument can be made that these homicide rates suggest that there would be more opportunities for imposing the death penalty in Maryland than in other locations where violent crime rate are much lower (say, Montana).

What's happening this week?

The Maryland lawmakers are hearing testimony and tinkering with language as they consider enacting new Maryland law on capital punishment.

With this background, consider these high profile arguments being made:

Maryland Governor Martin O'Malley made his position clear to the nation on Monday, by writing a post for the Huffington Post blog, where he made an emotional and aggressive argument to abolish the death penalty.

In summary, Governor O'Malley argues that the death penalty is too expensive; the death penalty is racially-biased in Maryland; and that money used for capital punishment in the State could be put to better use elsewhere.

Coming alongside, and testifying directly after Governor O'Malley, Archbishop Edwin F. O'Brien told the House of Delegates Judiciary Committee hearing in Annapolis, Maryland that he came before the Maryland lawmakers to support abolishing the death penalty on moral grounds, quoting Pope John Paul II's position that the dignity of human life should never be taken away by the state, regardless of the evil that has been done by a particular individual.

What's the status of the Maryland death penalty legislation?

The latest legislative stance is the state's House of Representatives Bill (Bill 316) - which proposes to repeal the Maryland death penalty statute - is being countered with a state Senate Bill (Bill 279) which would instead keep the death penalty, but impose certain evidentiary standards before capital punishment could be imposed.

In the Senate amendment, Maryland would have to have DNA evidence or a videotaped confession before it could execution someone for a capital crime.

What Do Archbishop O'Brien and Governor O'Malley Say About the Senate Version?

The Archbishop also supported the Senate amendment in his legislative testimony: he opined that it was a "small step" toward the goal of abolishing capital punishment, and that it may help "prevent the execution of an innocent person." (His position has also been made clear in the latest issue of The Catholic Review.)

And, yesterday, Governor O'Malley told the House Judiciary Committee that the Senate Amendment " ...represents progress over a very flawed status quo," and asked the House to pass the amended bill without further amendments so that it would not be sent back to the Senate, and the revised statute could thereafter be finalized into law. (Quote as reported by The Washington Post.)

Bottom Line, Maryland Will Still Have a Death Penalty - The Legal Change Apparently Will Be in Changing the State's Burden of
Proof in Capital Punishment Cases

Will this effectively abolish the death penalty in Maryland?

Or will it just make prosecutors in Maryland much more amenable to videotaping?

Capital punishment is expensive and now, the death penalty becomes a part of state budgetary concerns

Last week, the Associated Press reported that Nevada lawmakers were proposing a moratorium on capital punishment in that state (to last until 2011) so they could have time to figure out how costly it was on the state to kill people for crimes they had done.

In Kansas, state senators are pushing a bill through their state legislature, hoping to abolish the death penalty because they say it's too expensive when the economy is so bad.

In Maryland, where they've got a budget deep in the red, Governor Martin O'Malley is promoting the repeal of the Maryland death penalty statute because of the potential savings to the state coffers.

Florida is in a similar situation - more on that next time.

The Death Penalty is Expensive - and by Expensive, I mean Seven-Figures

You'd think that it would cost more to house someone for life, rather than just execute them and be done with it. But you'd be wrong.

Over at the Death Penalty Information Center (link below), they collect lots of financial data for the various state's capital punishment costs (federal as well).

Money talks: as you peruse these studies, you'll find that each death row inmate will cost a state at least a million dollars ($1,000,000) more than if that same inmate were given a life sentence without parole and imprisoned with other lifers. For some states, it's more like $2 million, or even $3 million.

That's a lot of moola for EACH person setting on death row.


Associated Press


Joplin Globe


Baltimore City Paper


Death Penalty Information Center


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