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June 15, 2013
PD triage not good enough

Court says excessive public defender caseloads are unconstitutional

By Jan Pudlow
Senior Editor

“Meet and greet pleas” — where harried assistant public defenders meet defendants for the first time for a few minutes in the courtroom at arraignment and know nothing about the case except for arrest forms provided by prosecutors, yet are expected to counsel them about the state’s plea offers.

“Triaging” cases — like the crisis mode of an urban hospital emergency room, where overwhelmed assistant public defenders must give priority to clients in custody, leaving the others effectively without representation for lengthy periods after arraignment.

Never enough time to visit crime scenes, interview witnesses, or conduct depositions by the assistant public defenders themselves.

“Thus, the circumstances presented here involve some measure of nonrepresentation and therefore a denial of the actual assistance of counsel guaranteed by Gideon and the Sixth Amendment,” the Florida Supreme Court said in a 5-2 decision May 23 in consolidated cases (No. SC09-1181 and SC 10-1349) Public Defender Eleventh Judicial Circuit of Florida, et al. vs. State of Florida, et al.

The opinion written by Justice Peggy Quince, with Justices Barbara Pariente, Fred Lewis, Jorge Labarga, and James Perry concurring, sided with PD-11, who argue chronic systemic budget shortfalls, while cases climb, have crippled the public defenders’ ability to not only abide by their ethical code, but to constitutionally carry out their duty to effectively represent their clients.

When the office sought relief in 2008, criminal cases had increased by 29 percent since 2004, while the trial budget was reduced 12.6 percent from 2007-2009.

The order remands the case back to the trial court “to determine if the circumstances still warrant granting the public defender’s motion to decline appointments in future third-degree felony cases under the standards approved in this decision.”

Eleventh Circuit Public Defender Carlos Martinez said he is “elated” with the ruling.

“The court followed its own precedent established over the course of 30 years. This decision lifts the spirits of attorneys everywhere who, due to crippling caseloads, have been confronted with the difficult decision of picking and choosing which clients get legally competent and diligent representation and which do not,” Martinez said.

“The court left no doubt that it is the judiciary’s role to safeguard individual liberty and equal justice under law, and to ensure that our courtrooms do not become factories of injustice and inequality.”

When PD-11 sought relief in 2008, its assistant public defenders were handling almost 500 cases a year.

Today, Martinez said, “Our caseload is still high, and it is more complex, too. While our attorneys are actually getting more work done on cases now than in 2008 and 2009, we have additional constitutional obligations stemming from recent U.S. Supreme Court decisions. We must provide precise immigrant advice, assure effective assistance in plea negotiations, and represent minors previously sentenced to life in prison without parole in new sentencing proceedings.

“We are evaluating our next steps. The Supreme Court has directed the trial judge to readdress both cases in light of the current circumstances. We will review our current workload, provide the courts with necessary information, and make appropriate recommendations that will assure our ability to provide diligent and professional representation of our clients.”

Martinez thanked the Hogan Lovells law firm for representing PD-11 pro bono.

Parker Thomson estimated his firm put in about 3,400 hours on the cases over the past five years, and had represented the PDs on the same caseload issues three decades ago.

“The public defender of the 11th Judicial Circuit in Miami-Dade County is generally considered one of the best public defender’s offices in the United States,” Thomson said. “And this PD has been unable to effectively handle its caseload. If that’s the tone of the conditions for the best public defender’s office, think what it is for the worst.”

Describing the criminal justice system as a “plea bargain system with very few trials [97 percent of federal convictions and 94 percent of state convictions are the result of pleas],” Thomson noted the Florida Supreme Court cited two 2012 United States Supreme Court decisions addressing two post-conviction claims of ineffective assistance of counsel involving pleas. Those cases underscore that it is not enough to point to the guarantee of a fair trial to correct errors in the pretrial process.

“Now, the guarantee has to be effective representation on plea bargains,” Thomson said.

“Let’s say you have an indigent mother arrested, let’s say on some kind of drug bust, and she needs to get back to her children and to work. She’ll take any plea to get out of jail, because otherwise her children will starve,” Thomson said.

“And we have these insane laws, where three strikes you’re out. Do that three times and you are in prison for years, although there may be three nonviolent drug charges. The clients have to be informed of the consequences of their pleas.”

In one of the cases before the Florida Supreme Court, an assistant public defender had a caseload of 971 cases.

“It’s beyond outrageous,” Thomson said. “During oral argument, Justice Labarga, who used to be an assistant public defender, leaned forward in his chair and asked: ‘How many?’ And then he rocked back in his chair and repeated: ‘971.’ Here we have the best public defenders admitting, ‘I can’t do my job. I have to be honest. I can’t do an effective job.’

“So why did we take this case?” Thomson repeated the question.

“Because it’s extraordinarily important that we have a justice system that is just.”

Chief Justice Ricky Polston, concurring in part and dissenting in part with an opinion in which Justice Charles Canady concurred, said he agreed that section 27.5301(1)(d) Florida Statutes is applicable and not unconstitutional and that the State Attorney’s Office has standing in these proceedings.

“However, unlike the majority, I do not believe that the Public Defender’s Office for the largest circuit in Florida should be permitted to withdraw from 60 percent of its cases by testifying that, due to its high caseload, attorneys may possibly end up violating Florida Bar rules.”

The majority’s decision “permitting aggregate withdrawal without individualized proof of constitutional harm leaves open the potential continuation of the improper remedy implemented by the trial court, where the judiciary will essentially be managing the Public Defender’s Office,” Polston wrote.

“. . . This ongoing judicial involvement in overseeing the internal affairs of the Public Defender’s Office is not only impractical, but also creates constitutional separation of powers problems. . . .To summarize, because there has been no proof of actual (or the likelihood of imminent) harm to individual defendants’ constitutional rights due to excessive caseload and underfunding, I would approve the Third District’s decisions reversing withdrawal.”

The case began in 2008, when then 11th Circuit Public Defender Bennett Brummer asked several judges to temporarily stop giving his assistants new felony appointments. After a two-day evidentiary hearing, Stanford Blake, administrative judge of the criminal division, said caseloads were excessive under any standard and granted partial relief, ruling PD-11 could stop taking new third-degree felony cases beginning September 15, 2008, for 60 days, although the PD was still required to represent those defendants through arraignment. Then, Judge Blake would closely monitor the situation, requiring weekly status reports, and hold another hearing. The 11th Circuit State Attorney’s Office appealed. The Third District Court of Appeal overturned Blake’s decision, saying the PD’s withdrawal based on conflict must be determined on a case-by-case basis, and not in the aggregate.

In the second case, in 2009, PD-11 filed a request to relieve one of its attorneys from the burden of simultaneously handling more than 150 felonies at one time. Eleventh Circuit Judge John Thornton granted that request.

The 11th Circuit Public Defender, as well as many who filed amicus curiae briefs, “contend that systemic or aggregate prospective relief is required by the Florida Rules of Professional Conduct and by the Sixth Amendment rights of indigent defendants,” the opinion summarized.

“Additionally, they argue that the courts have inherent authority to issue such relief when necessary to fulfill their constitutional obligations.”

The majority of justices agreed: “The Third District’s conclusion that the courts cannot fashion an ‘office-wide solution’ to the public defender’s excessive caseload does not comport with Florida case law. We have approved aggregate or systemic relief in a number of cases where public defenders were experiencing excessive caseloads or where the offices were underfunded.”

In the instant case, the five justices concurred: “While we cannot succinctly recount the lengthy records in these two cases [the combined record comprises 26 volumes], we are struck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender’s representation of indigent defendants.”

[Revised: 09-01-2014]