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Citing financial woes, PD stops accepting cases

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Citing financial woes, PD stops accepting cases

Hearing set in the 11th Circuit’s action, more PDs may follow suit

Senior Editor

Swamped with cases and too broke to hire more lawyers, Florida’s largest public defender office — Miami-Dade’s 11th Circuit — can no longer effectively represent more clients, so it must refuse new felony cases.

That’s the gist of 11th Circuit Public Defender Bennett Brummer’s “motion to appoint other counsel in unappointed noncapital felony cases due to conflict of interest,” filed June 23 by Parker Thomson, Alvin Lindsay, Julie Nevins, and Matthew Bray of Hogan & Hartson, serving as pro bono counsel on Brummer’s behalf.

The matter has been set for an evidentiary hearing July 30 before 11th Circuit Administrative Judge Stanford Blake, after this News went to press.

Brummer “There isn’t any choice. When they reduce our budget past a certain point, we have a constitutional and ethical obligation to say, ‘No more.’ We will not pretend to offer representation,” Brummer said.

& #x201c;Our funding has been deteriorating for many years. Since March, it’s the most devastating time I’ve seen in 30 years. The attitude of the Legislature seems to be very nonchalant, and there seems to be no accountability there.”

But Sen. Victor Crist, R-Tampa, chair of the Criminal and Civil Justice AppropriationsCommittee, thrusts the blame at Brummer.

“He is grandstanding. While his colleagues around the state are willing to work with local officials and the courts, he is out there holding press conferences and filing motions. The bottom line is state revenues are shrinking,” Crist said.

“There are 20 public defenders in the state of Florida and 11 of them made aggressive efforts on their own to generate revenues to enhance their budgets. They can create trust funds and they raise revenues for those trust funds through assessing fees for services and collecting on it.. . . They may be indigent today, and may be a millionaire tomorrow. Who knows? If you are found guilty, you have a liability and a debt to society.”

Brummer is among the nine public defenders “philosophically opposed” to trust funds, Crist said.

Crist said PDs should conduct more thorough investigations to determine if clients are truly indigent, and collect money from those they represent — even if it’s 50 cents a week — and go after their estates when they die.

“Most are guilty and are receiving appointed counsel for crimes they put themselves in. To think that they should skate without some kind of obligation is wrong,” Crist said.

But Brummer believes it is wrong to expect public defenders to carry out their constitutional duties of effective representation for poor people charged with crimes on a bare-bones budget. It is the fourth time the 11th Circuit Public Defender’s Office has withdrawn or declined to accept new cases since the 1970s.

“When I came, in the beginning of my career in the mid-’70s, I started with this issue. Now it seems like I will be finishing my career with this,” said Brummer, who is retiring and will be replaced in January by Public Defender-elect Carlos Martinez, who drew no opposition when he ran for office.

Brummer insists it is a constitutional crisis begging for relief.

The numbers in the pleadings filed June 23 are already out of date, Brummer said, noting the average felony caseload per lawyer, of the 105 attorneys assigned to noncapital cases, was 387 when filed, is currently in the 440 range, and he expects it to tip the 500 point within a few months — more than triple what they should be to be effective.

The motion states the average caseload per attorney is 387, yet the National Advisory Commission on Criminal Justice Standards and Goals has recommended that full-time public defenders not accept more than 150 felony cases during a year, and the Florida’s Governor’s Commission established maximum caseload standards of 100 felony cases per year.

“The net result of increasing caseloads and decreasing resources is that PD-11’s office has reached a decisive point. If PD-11 were to take no action, the workload for assistant public defenders would far exceed the ability of any attorney to provide effective assistance of counsel. To avoid that violation of constitutional rights, PD-11 must decline additional noncapital felony cases until assistant public defender caseloads are reduced to constitutionally, professionally, and ethically appropriate levels,” according to the motion and memorandum of law, replete with exhibits and affidavits chronicling in detail what is described as the state’s systematic reduction of its funding and resources.

Eighth Circuit Public Defender Rick Parker, president of the Florida Public Defender Association, noted the previous three times Brummer has taken action to restrict cases have been judicially approved.

“He’s not flying in the dark on this. I think there is real merit to it, and I do anticipate other public defenders will follow,” Parker said.

Statewide, Parker said, Florida’s 20 public defenders’ offices 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 has heard Crist’s view that Brummer’s legal action is an attention-getting ploy.

“What I tried to emphasize at the Legislature is we are just different from other agencies. We have a constitutional obligation, as any lawyer, to adequately inform the client, make recommendations, and give advice. And when you have way too many of them, you just can’t be lawyers. And we are lawyers! We are lawyers! I don’t care that we are public defenders. The challenge is on the ethical basis that we have an obligation to clients.”

Because each circuit has been affected differently with budget cuts, Parker said, it will not be a statewide response, but an “individual decision by each elected official, as to whether or not they can do what they are constitutionally mandated to do. I’m probably not going to do it right away. I’m going to take a wait-and-see attitude.”

Sixth Circuit Public Defender Bob Dillinger threatened to shut down a division of misdemeanor court in Pinellas and Pasco counties because budget cuts have strapped his lawyers with caseloads five times the recommended level. But crisis was averted in mid-June when Chief Judge Robert Morris, Judge Henry Andringa, and Dillinger came up with plan by asking county judges to resolve more misdemeanor cases with plea agreements at arraignment, as well as certify that certain minor cases will not result in jail time and therefore no public defender is required.

Sen. Crist hailed that solution as the kind of cooperation and creativity that’s required during a budget crisis.

“We need problem-solvers, not problem-creators,” Crist said.

At the huge 11th Circuit PD, Brummer said he didn’t create the problem, the Legislature did, and he had no choice but to take it to court.

In the current budget crisis, since the beginning of fiscal year 2007-08, that office’s budget was cut by $2.48 million, or 8.5 percent, Brummer said. In addition, the office faces a 1 percent quarterly holdback from the 2008-09 budget, or an additional budget cut of 4 percent.

The starting salary is $42,000, half that offered by nonstate, government agencies in the area, the legal memo states, causing an overall turnover rate of about 20 percent annually during the last five fiscal years.

While the budget is falling and lawyers are leaving, caseloads are rising. Since FY 2003-04, the annual number of noncapital felony cases has increased 16.2 percent, from 34,984 to 40,651 in FY 2006-07.

Because of the drastic budget cuts, the motion says, “PD-11 has lost a considerable number of experienced attorneys, compounding an already serious deficit of attorneys qualified to handle the large number of noncapital felony cases in the 11th Judicial Circuit.”

Brummer certified that he must take this step in order to “ensure that he can meet his constitutional, statutory, and ethnical obligations in future noncapital felony cases.”

The motion warns “in all likelihood, PD-11 will be forced to take similar action” with misdemeanor cases in county court, as well. Specialty areas, such as capital cases and domestic cases would continue to be represented by PD-11, because without new noncapital felony appointments the office can handle them more cost-effectively than the private bar. the motion states.

The motion suggests the court, pursuant to section 27.5303(1)(a), Florida Statutes, should first appoint the newly created Criminal Conflict and Civil Regional Counsel. If that office voices concerns about a similar conflict of interest, the motion suggests the court should next turn to registry attorneys.

Sandi Copes, press secretary for Attorney General Bill McCollum, said the office will serve in the appellate capacity, if the case gets to that point, but the AG will not intervene as a party.

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