By Jan Pudlow
Senior Editor

Bringing relief to a constitutional crisis of lawyers too overburdened to adequately represent their clients, a Miami judge ruled 11th Circuit Public Defender Bennett Brummer may stop taking new third-degree felony cases beginning September 15.

Stanford Blake, 11th circuit administrative judge of the criminal division, concluded in his September 3 order that “the evidence clearly establishes that PD-11 is in need of relief sufficient to ensure that the assistant public defenders are able to comply with the Florida Rules of Professional Conduct and carry out their constitutional duties.”

During a two-day evidentiary hearing, it was revealed that several assistant public defenders — some saddled with huge law school loan debt — hold second jobs on nights and weekends to make ends meet on $42,000 salaries with no raises in sight.

Assistant Public Defender Amy Weber tearfully testified that she was so harried with 13 cases set for trial in one week that she failed to convey a prosecutor’s plea offer to her client. As a result, the state revoked the offer of 364 days in county jail and the defendant was stuck accepting the state’s subsequent offer of five years in state prison.

“I just shudder at what they have to go through,” said Parker Thomson, of Hogan & Hartson, who handled Brummer’s case pro bono. “The reputation of the degree of professionalism at PD-11 is national, if not international. It’s widely considered one of the best public defender offices there is. Then you must shudder and wonder: What is the worst?”

Because caseloads are rising and funding is inadequate to hire more lawyers, Brummer asked to refuse all new noncapital felony cases. Since Judge Blake did not grant all that Brummer had asked for, will it be sufficient?

“That remains to be seen,” Brummer answered. “He gave us 60 percent of what we asked for. It will certainly be a substantial step in the right direction.”

The judge required Brummer to report to the court every 60 days on how things are going.

Referring to Weber’s testimony, Brummer said: “She was crying. It’s sad to see well-intentioned, highly trained people unable to cope with the workload the Legislature is essentially assigning them. It’s so sad. Everybody suffers. The clients suffer. And the leadership in the criminal justice system — judges, prosecutors, defenders, we all suffer. And when we try to correct the situation, we are subject to personal attacks,” referring to criticism that he is grandstanding by taking the matter to court.

Brummer, who retires at the end of the year and will be succeeded by Carlos Martinez, said, “We estimate it will cost the state about three times as much to pay private attorneys to handle these cases as it would have to fund the public defender more adequately. It’s sad the way they (legislators) operate. What they say about clients is, ‘if you do the crime, you have to do the time.’ Well, at the Legislature, they don’t pay for the criminal justice system, except to build prisons, which they love to do, as part of the prison industrial complex: $300 million this year for new beds.”

Thomson called Blake’s ruling a “thoughtful appraisal” of allowing public defenders to handle the most serious felonies and sending third-degree felonies that clog up caseloads to alternative counsel.

That alternative counsel is Joseph George, who heads the newly created Criminal Conflict and Civil Regional Counsel’s Office for the Third District.

Can George’s office handle an estimated additional 2,000 criminal cases a month for an undetermined length of time?

“We are going to try our darnedest to obey his order,” said George, who said the ruling does not come as a surprise and he has been trying to “beef up” his staff of 43 lawyers.

“The statute is clear that if we have to conflict out on essentially the same basis, the old system would be reinstituted,” George said.

That old system is hiring private registry attorneys to handle conflict cases at $700 per case.

Besides dealing with the new onslaught of third-degree felony cases — on top of duties that include helping reunify families in dependency court and representing elderly people the states believes should be institutionalized — George said Miami-Dade County is suing his office over funding.

“They haven’t helped us. They gave $22 million to the public defender and $77 million to the state attorney, and they gave us zero,” George said.

Brummer made his case focusing on chronic, systemic budget shortfalls that have crippled his attorneys’ ability to not only abide by their ethical code, but to constitutionally carry out their duty to represent their clients.

The average felony caseload per lawyer, of the 105 attorneys assigned to noncapital cases, was 387 when Brummer filed his pleadings, and is currently in the 440 range — more than triple the number to be effective, he argued.

Since 2003-04, noncapital felony cases have increased 29 percent, while resources dwindled.

Blake noted in his order that after the shift of funding in 2004, due to the implementation of Art. V, Revision 7, the Legislature appropriated for only 52 of the 82 county-funded positions for PD-11’s overload special assistant public defenders. And, he said, there is no dispute that PD-11’s trial budget has been cut by 9.2 percent in the past two fiscal years. With additional holdbacks imposed for 2008-09, PD-11 is operating under a 12.6 percent budget reduction.

At the evidentiary hearing, there were challenges on how PD-11 calculated its noncapital felony caseload numbers. Nonetheless, Judge Blake said its public defenders “function under extreme and excessive caseloads . . . and far exceeds any recognized standard for the maximum number of felony cases a criminal defense attorney should handle annually.”

Fourth Circuit Public Defender Bill White, president of the Florida Public Defender Association, said, “The ball now moves to the Legislature’s court. There may be an appeal and I don’t want to predict what the Supreme Court might do. But based on existing precedent in the state of Florida, the judge ruled correctly and it should lead to cooperative efforts among public defenders, state attorneys, and the courts working with the Legislature to find a systemic fix to this long-standing problem of funding the judicial branch.”

In a letter to Gov. Charlie Crist, White wrote: “First, the Florida Legislature, working with the public defenders and the courts, should adopt enforceable standards for indigent criminal defense. The standards should require a public defender to move to withdraw when caseloads exceed those standards. Second, a dedicated funding source must be established to provide for maintaining those standards in practice.

“At the very least, it should be clear that failure to act now will result in more, rather than less, cost to the State of Florida. It is not realistic to shift large numbers of cases to Regional Counsel. It only exacerbates the problem to take positions and funding from public defenders and send both to Regional Counsel, given the nature of the two offices and the conflicts that would naturally arise.”

In an interview with the News, White said: “It’s a crisis. It’s not a Miami issue. It’s a 20-circuit statewide issue. It impacts victims, defendants, the public, everyone. The sooner the Legislature sees that, and stops telling us all to ‘share the pain,’ the better. These are constitutional mandates and it needs to be fixed. . . . Bennett is a pioneer and this is a good way to cement his legacy on the way out.”

As Brummer’s pro bono lawyer Thomson said: “There’s no way to avoid the fact that at a time when crime is increasing and the monies provided is one where there are decreasing numbers of lawyers to handle it, you are going to have an accelerating problem. The lawyers are obligated to fulfill ethical and constitutional responsibilities.”

In a footnote, Judge Blake also referred to the extreme caseloads of assistant state attorneys in the 11th Circuit who handle nearly 300 cases each.

“If the budgetary problems facing the justice system are not addressed by the Legislature, hardworking prosecutors may unwittingly find themselves in violation of the Florida Rules of Professional Conduct that governs every lawyer in the State of Florida,” the judge wrote.

“At some point in time, the State Attorney’s Office, due to lack of funding, excessive caseloads, and the loss of attorneys, may have to decide what cases they can prosecute and which ones they will be unable to handle.”

As a friend of the court, 11th Circuit State Attorney Katherine Fernandez Rundle, Chief Assistant State Attorney Don Horn, Assistant State Attorney Penny Brill, and Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, filed written closing arguments urging the judge to deny Brummer’s motion because it would create chaos in the criminal justice system and lead to the dismissal of serious felony cases.

“While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused,” Judge Blake responded in his order. “Public defenders, like all attorneys, are bound by professional ethical obligations.”