By Jan Pudlow
At the 11th Circuit Public Defender’s Office in Miami-Dade County, the situation has “deteriorated at an accelerating rate” and “reached a critical mass.”
That bleak appraisal of higher crushing caseloads, even more departing attorneys, and the specter of a worsening budget crisis, is contained in an affidavit from Carlos Martinez, public defender-elect, who urges speedy resolution of an appeal of an order aimed at lightening his load.
“At every level in PD-11, attorneys are worrying that, due to the high caseloads, they are unable to perform in the manner required by the Florida Rules of Professional Conduct. Defendants are also complaining much more frequently that our attorneys are too busy to help them or even provide basic information. Consequently, the morale is lower than ever,” Martinez said in his affidavit.
It’s all part of a cry for help Martinez hopes comes quickly. On November 7, the Florida Supreme Court declined jurisdiction in his case with statewide ramifications.
“After consideration of the responses to this court’s order to show cause, dated October 2, 2008, this cause is hereby dismissed for lack of jurisiction,” the justices said in a unanimous order in Case No. SC08-1827, adding no motion for rehearing will be entertained by the high court. Now the case bounces back to the Third District Court of Appeal.
That’s where the case belongs, argued Solicitor General Scott Makar and Chief Deputy Solictor General Louis Hubener, for Attorney General Bill McCollum:
“While the issues are clearly important and in need of reasonable, expedited review, the Third District is fully capable of providing such review and indeed has set this case for expedited briefing and argument. That court is capable of examining the record below and addressing the important issues in the first instance, even though the issues are challenging or may require future resolution by this court,” they wrote in their response to order to show cause.
On the other side, PD-11 — represented pro bono by Hogan & Hartson’s Parker Thomson, Alvin Lindsay, Julie Nevins, and Matthew Bray — urged the Supreme Court to accept jurisdiction: “This court’s ruling will guide the courts, public defenders, and regional counsel in other judicial circuits with regard to similar proceedings throughout the state,” they wrote in reply on October 20.
The timeline stretches from a July 30-31 evidentiary hearing, followed by a September 3 order from Stanford Blake, 11th Circuit administrative judge of the criminal division, that PD-11 may stop taking new third-degree felony cases beginning September 15 (See September 15 News).
However, before that partial relief could be realized, on September 11, the State of Florida filed an emergency motion for stay with the Third DCA. On September 24, the Third DCA vacated its order to expedite the appeal and certified that the state’s appeal requires immediate resolution by the Supreme Court because it “passes upon a question of great public importance or will have great effect on the administration of justice throughout the state.”
In a separate order, the Third DCA ordered the temporary stay it entered remain in effect until the Supreme Court ruled.
Meanwhile, Joseph George, Jr., regional counsel for Criminal Conflict and Civil Regional Counsel, Third District, weighed in by filing Putative Intervenor’s Objection to Dissolving the Stay, arguing his office is “not presently equipped to handle an inundation of cases” and taking on PD-11’s new third-degree felony cases puts his office in “the untenable position of exceeding its statutory authority in accepting court-appointments.”
Lawyers for PD-11 argued that further delay “is unconscionable given the factual findings.”
Those findings, crystallized in Martinez’s affidavit, include:
• “If the current rate of attrition continues, we will lose more than 50 trial attorneys out of 168 PD-11 had at the beginning of this fiscal year.”
• Since the July 2008 evidentiary hearing, PD-11 projected it would have 98 attorneys to handle noncapital felonies. Since the hearing, additional attorneys resigned, and beginning in October there are only 94 attorneys to handle noncapital felony cases.
• Four of the attorneys who resigned are, or will be, working for George at the Office of Criminal Conflict and Civil Regional Counsel for the Third District (RCC-3), where part-time attorneys are paid $50,000/year. “PD-11 cannot compete with that salary for full-time attorneys with two-to-three years’ experience. Additionally, RCC-3’s ‘part-time’ arrangement allows attorneys to earn additional fees in privately retained cases.”
• “Attorneys are also concerned with the increasing cost of living, no raises for two out of the last five years, no future raises in sight, and the expiration of student loan deferrals. The result is that many attorneys are actively seeking employment outside PD-11. More importantly, if PD-11 continues to lose between four and five attorneys each month, as it has for each of the last four months, our turnover rate could be almost double the 18-to-20 percent it has been for the last five years.”
• “A chain reaction is taking place in which every attorney who leaves and cannot be replaced increases the workload and inefficiency of the remaining attorneys. Those remaining attorneys also begin looking for other employment.”
• “The partial relief granted by (Judge Blake’s) order on appeal in this case is the only hope on the horizon.”
• “I am deeply concerned that a stay of the order would cause further damage to PD-11’s current clients, PD-11’s professional responsibility under the Rules Regulating the Bar, the moral authority of the courts, the public’s perception of fairness, the due process rights of the indigent, and the fair and efficient operation of the courts. Were the stay to remain in place, victims, as well as defendants, would continue to see justice delayed and denied due to PD-11’s current inability to handle cases due to its excessive caseload.”