The Florida Bar
www.floridabar.org
The Florida Bar Journal
March, 2013 Volume 87, No. 3
Gideon’s Promise

by Gwynne A. Young

Page 4

Growing up in a household headed by my stepfather, Judge Luckey, the longtime public defender of the 13th Judicial Circuit and several times president of the Florida Public Defender Association, I understood at an early age that poor people deserve justice, too.

Judge was a robust, politically savvy good ol’ boy whose Southern drawl filled the room with good stories.

He was one of the first assistant public defenders hired in Hillsborough County after the creation of the public defender system. With a big heart for helping his clients, he lived and breathed what Gideon v. Wainwright, a 1963 U.S. Supreme Court decision that sparked the creation of Florida’s public defender system, stands for: the right for indigent people to have effective representation when charged with crimes.

When I was fresh out of law school in 1974, then 13th Circuit State Attorney E.J. Salcines, Jr. (now a senior judge on the Second District Court of Appeal) hired me as his first woman assistant state attorney. Every day in court, I watched with respect as assistant public defenders ably represented their indigent clients, frequently demonstrating greater skill than lawyers who were being paid by their clients to represent them.

Today, as we commemorate the 50th anniversary of Gideon, I want to thank those Florida lawyers who have chosen to work in the public defenders’ office or agreed to be a court-appointed counsel when the public defender has a conflict. It is not an easy job. Being an assistant public defender is a true calling, with a starting pay of $39,074.

It’s also a time to reflect on where Florida stands when it comes to guaranteeing that those charged with crimes have access to not just a lawyer — but to effective assistance of that lawyer as guaranteed by the Sixth Amendment.

When the Florida Innocence Commission, appointed by the Supreme Court, met in May 2012, many members were shocked to hear details of how poorly Florida funds our criminal justice system.

One court-appointed registry attorney told how he spent $26 an hour out of his own pocket to represent a client charged with murder.

Todd Doss, a Lake City criminal defense attorney on the board of directors of the Florida Association of Criminal Defense Lawyers, told the commission that while he has accepted court-appointed conflict cases, he refuses for ethical reasons to sign the contract limiting fees. The statutory cap to defend a death case is $15,000, a life felony is $3,000, and other felonies are $2,500. In the 2012 budget, however, except in capital cases, the fees are even less, essentially pro bono.

Second Circuit Public Defender Nancy Daniels, a member of the commission, brought these statewide statistics: There are 1,511 assistant public defenders to handle about 761,689 cases — and that comes out to 504 cases per attorney. On average, this means one attorney has only two hours to devote to a case.

Julianne Holt, who serves in both the roles my stepfather once held — public defender of the 13th Circuit and president of the Florida Public Defender Association — testified before the commission that there is no doubt that a lack of funding has affected representation of clients. Her office has to triage cases and decide where to put their limited resources. More motions for post-conviction relief are being filed in her circuit than ever before, she acknowledged, and there is a problem with not being able to call witnesses to testify.

Rory Stein, an assistant public defender in the 11th Circuit, gave commissioners this real-life scenario of harried lawyers in his office pushing through pleas at arraignment in 20 to 30 percent of the cases:

“I’m talking about a situation where there’s been no investigation. There’s been no testing of evidence. There have been no experts retained. And yet, in all likelihood, there are innocent people who are being asked to plead guilty to a crime under circumstances in which they can’t make an objective decision. They need to get out of jail to save their families. So, frequently, innocent people will plead guilty under those circumstances without getting a whole lot of assistance from their lawyers.”

The funding crisis seriously impacts the other side of the aisle, too.

Fifth Circuit State Attorney Brad King, a member of the commission, said because of crushing caseloads — about 900 case referrals annually per assistant state attorney — the average time a prosecutor has to spend on a felony case (including capital murder) is about five hours total from intake through trial.

As 18th Circuit Judge J. Preston Silvernail, a member of the commission, stated: “Without adequate counsel, due process is not assured. If we do not provide adequate funding, there is a loss of the due process of law, which will lead to wrongful convictions.”

When the Innocence Commission issued its final report in June 2012, it listed five top causes of wrongful convictions that have caused 13 men in Florida to collectively serve 259 years in prison for crimes they did not commit: eyewitness misidentification, false confessions, informants and jailhouse snitches, improper or invalid scientific evidence, and professional responsibility.

“While studying the topic of professional responsibility,” the executive summary says, “it became crystal clear that a sixth significant cause exists that may lead to wrongful convictions: The underfunding of the criminal justice system in Florida.”

This is not the equality of justice the U.S. Supreme Court had in mind when it ruled in the landmark Gideon case. Fifty years later, we face this realization: The promise of Gideon can only be kept by funding effective assistance of counsel. It’s a promise which the Florida Legislature must address.

[Revised: 06-28-2013]