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.

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