By Jan Pudlow
Senior Editor

Once a contentious issue pitting the guarantee of constitutional rights against practical concerns in a budget crisis, the vote was 28-0 to mandate that both prosecutor and public defender be required to attend all first appearance proceedings — the first chance for a defendant to get out of jail.

The unanimous vote of The Florida Bar Criminal Procedure Rules Committee came at the Annual Convention in Boca Raton, after H. Scott Fingerhut stepped down as chair to deliver a passionate speech invoking Gideon’s promise that justice should not depend on the amount of money in a defendant’s bank account.

“Jail is an awful place. I’m reminded of that uniquely every time I take my students there on a tour. The looks on their faces. . . Chesterton wrote that we get too used to it; that all we see is the prisoner in the dock. . .the ‘usual man in the usual place,’” Fingerhut said. “For us to vote against this proposal is to express your comfort, your willingness, to sit in jail even a moment longer than you’d otherwise have to. And because I believe that no one in this room feels that way, to vote against this rule change is, to me, hypocritical. . . .

“It comes down to this: I would not stand silently by and facilitate your being treated like ‘the usual man in the usual place.’ And because I would not stand silently by, I will not cast a vote to allow others to do so in my stead.”

The unanimous vote that followed was a marked departure from the feisty debate that played out at the committee’s January meeting, when Third Circuit State Attorney Jerry Blair, Eighth Circuit State Attorney Bill Cervone of the Florida Prosecuting Attorneys Association, and Eighth Circuit Public Defender Rick Parker, of the Florida Public Defender Association, spoke of practical roadblocks to carrying out the rule. They simply don’t have enough bodies, they said, in tough budget times.

The matter first came to the committee in a letter from West Palm Beach criminal defense attorney Donnie Murrell, (now chair of the Bar’s Criminal Law Section) who wrote: “Believe it or not, first appearances occur with some frequency throughout the state without a prosecutor or public defender being present.”

Murrell was back before the committee in June, hoping for a favorable vote to make sure indigent defendants are afforded their rights at these critical hearings — held within 24 hours of arrest, when judges consider defendants’ release on recognizance or set bail, review the sufficiency of probable cause affidavits, and appoint public defenders if the defendant cannot afford to hire attorneys.

“We have a draft provision that we kicked to death last January. It’s been sitting for six months and nobody has added to it or subtracted from it. In the meantime, in those intervening six months, in St. Lucie County alone, 2,500 indigent defendants have gone to first appearance without counsel. If we take another six months to discuss this, there will be 2,500 more. It’s a huge problem,” Murrell said.

“This isn’t just happening in small, rural Gilchrist counties. It’s happening in places that used to be small and rural and still claim to be small and rural — but they’re not! I’m upset about it. I’m sorry. But we need to do something about it. Whether it’s teleconferencing or having some warm body there, they need to be there. Whether they do a good job or a bad job, we can’t deal with that. But we can get them there. And the time to do it is now.”

Parker again came to voice concerns about practical problems.

Seventeenth Circuit Assistant State Attorney Joel Silvershein, chair of the a subcommittee that originally voted unanimously to amend Rule 3.130(a) to make mandatory that both side are present, asked Parker about the dire affects of the Legislature’s budget cuts.

Parker answered that in one year, public defenders have suffered a 10.3 percent reduction in the total operating budget out of general revenue, with some offsets by increased fees that will benefit some circuits. Overall, he said, $21 million was lost out of the statewide public defender general revenue appropriations.

Parker explained the FPDA officially took no position on the first appearance issue, because motions going both ways failed to receive the required two-thirds majority.

“My personal belief is it is a critical stage and we should be there, but we have to balance that against the practical reality first of the budget situation, which has only gotten worse, and more importantly to me, the difficulty in multiple-county circuits such as mine.”

Currently, he said, there are first appearance hearings 365 days a year in Alachua County, but if he is required to have a public defender in all six counties, 365 hearings will increase to almost 2,000 hearings a year.

“Physical presence is part of the practical problem. The other issue is to have advance notice. Sometimes they are done, particularly in the more rural communities, on a very ad hoc basis, where there may not be any first appearances. If there are, they are done at the convenience of the judge with no notice to the public that these hearings, that they be scheduled during normal business hours,” Parker said.

“That comment that was reported in the Bar News achieved me some negative phone calls from the judiciary. But it just happens to be the fact of the matter.”

The rule, Parker said, should “include language that there is either a court reporter or an electronic recording device in the presence of the clerk of the court.”

Parker said if rural Gilchrist County could have a video link to Alachua County, it could be workable. But he stressed requiring “physical presence” would be a problem.

Asked how the public defender would communicate with a client with a video hookup, Parker responded: “That’s a good question. You have choices, and none of them are good, unfortunately, when you do the video. In Alachua, the way it’s set up, the judge is at the courthouse, the prosecutor is at the courthouse, our Department of Court Services employees that interview the client and makes the phone calls to verify employment and residence information, are at the courthouse. Witnesses, if there are any, public members, family, are at the courthouse. But the assistant public defender is at the jail.

“My view is that the lawyer is only helpful if they are there to communicate with the client. Frequently, they do step back from the phone or pass the case for a while and discuss the case with the client before they go back to the microphone.”

Carrie Haughwout, public defender in the 15th Circuit, a one-county circuit with a rural area, urged passage of the rule and said nothing in the language rules out doing it by video.

“It’s better than nothing. It’s better than someone sitting in jail for two or three days,” she said.

When the article came out in the February 15 Bar News, Haughwout said, assistants in her office “were amazed there are counties that don’t have first appearances with lawyers there, because there is so much to talk about . . . If we compromise the quality of our court system, we may never get it back.”

After the meeting, Parker said: “If it’s mandated, I will do it. I will try to find a way to do it. But I don’t know how I can do it. It’s going to be a burden. Mr. Murrell seemed to be satisfied just having me there, whether I would be any good or not. I am a little offended by that. I want to be good. And in order to be good, what I need is information. ”

Parker said there needs to be a way for the lawyer in the remote location to have access to court documents held by the judge and prosecutor in the main location.

“I do think it is true if the rule is eventually approved by the Supreme Court, there would have to be some consideration of those practical details: how the attorney can not only be present, but be effective,” he said.

Murrell said after the meeting that while he is no fan of video-conference hearings, it’s better than nothing.

“I am very pleased. I think they did the right thing. It’s time,” Murrell said. “We’ll try to help the PDs and state attorneys find the money to get it done. But it’s a critical phase of the proceeding, and it needs to be staffed.”

© The Florida Bar - 7/16/2008 - Version 1.0.2

© The Florida Bar - 7/16/2008 - Version 1.0.2

© The Florida Bar - 7/16/2008 - Version 1.0.2