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February 15, 2008
Who should be attending first appearances?

Rules panel finds the answer is not as clear as it might appear

By Jan Pudlow
Senior Editor

A hotly debated issue boiled over at The Florida Bar Criminal Procedure Rules Committee: Should both prosecutor and public defender be required to attend all first appearance proceedings?

If you thought both sides already do attend those 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 — you are in for a surprise.

At a packed room in Miami at the Bar’s Midyear Meeting January 18, lawyers practicing in urban areas were shocked to learn that, in some rural areas of Florida, first appearance hearings are held before the crack of dawn to fit in with judges’ hunting plans — and often a court reporter is not present to preserve the record for appeal, leaving only a clerk jotting quick notes in the file.

Problems are not limited to rural areas.

“Believe it or not, first appearances occur with some frequency throughout the state without a prosecutor or public defender being present. One elected public defender recently told me she does not believe the Rules of Procedure require her to have an assistant at first appearances. A chief assistant state attorney told me his office does not attend first appearances because ‘they trust the judges’ not to release defendants,” West Palm Beach criminal defense attorney Donnie Murrell wrote in a letter to Scott Fingerhut, chair of the rules committee.

“The rules should be amended to state explicitly what they already say implicitly,” urged Murrell.

“I don’t know how pervasive it is around the state, but a large number of people are being hurt in the 19th Circuit on a regular basis,” said Murrell, referring to the long-simmering controversy in that circuit — comprised of Martin, St. Lucie, Indian River, and Okeechobee counties — that has landed at the rules committee to solve.

“I haven’t seen anything this contentious in my 21 years on rules committees,” said 17th Circuit Assistant State Attorney Joel Silvershein, chair of a subcommittee that voted unanimously to amend Rule 3.130(a) to make mandatory that both sides are present — and then invited guests from the Florida Prosecuting Attorneys and Florida Public Defender associations who said their devastating budget cuts made following the proposed rule impossible.

Speaking up for amending the rule was 17th Circuit Public Defender Howard Finkelstein: “I believe as passionately and as strongly as I believe anything that a magistrate first appearance hearing is where two tracks of justice go down: those with money and those without.”

Because many counties have gone to a bond chart for certain crimes, rather than taking a close look at an individual defendant, Finkelstein said, “a very bad person who is guilty of crimes in the past, with money in his pocket, gets out. And someone who has never done wrong and charged with a minor crime, but has no money, stays in. That is clearly not in the spirit of the Constitution and other rules of the court.”

When the public defender is not present at first appearance, he said, often the first time indigent clients talk to their lawyers is delayed five weeks later at arraignment.

“We have ‘meet, greet, and plea’— which has become the unfortunate M.O. of many PDs in the state, and my office, as well, in the past,” Finkelstein said. “It is foregoing all the constitutional protections people have fought years for.”

Throwing a monkey wrench in the constitutional ideal are practical concerns about tight budgets — especially in rural counties.

Third Circuit State Attorney Jerry Blair told the committee he has only 26 assistants to cover a seven-county jurisdiction stretching more than 5,000 square miles, and he can’t maintain offices in three counties.

“I have assistant state attorneys who drive 50 miles to the courthouse. If I require them to drive to a hearing that may or may not occur, I can’t keep them. It’s tough to hire and keep prosecutors in small rural counties. I tell people only half jokingly, ‘If you have a pulse and a law degree, you have a job in the Third Circuit.’ If you pass this rule, I will have to eliminate the pulse or the law degree requirement.”

Eighteenth Circuit Judge O.H. Eaton said, “I never thought the government was able to use cost benefit analysis for constitutional rights. That makes me kind of nauseous.”

Blair responded: “Judge Eaton, I know talk of money nauseates you, but I am going to have to nauseate you. We have a $1 billion shortfall. The economic forecast is a $2 billion shortfall. This is the most serious economic hardship we have faced in my 30 years. It is very real and profound.”

Eighth Circuit Public Defender Rick Parker, president of the FPDA, agreed that first appearances “can be a critical stage of proceedings,” and where pleas are encouraged for minor offenses that move cases and relieve overcrowded jails.

“That being said, I am a practical person,” Parker said, adding the association did not take an official position on the rule change because there were strong feelings on both sides.

“What I am concerned about is mandating the impossible. When I say that I focus on smaller rural communities,” Parker said. “We have desperate underfunding of the public defender system. . . . If there is a bad time to put it on us, this is a particularly difficult time.”

In smaller rural counties, Parker said, first appearances are set at the convenience of the judges and sometimes it is as informal as a judge calling the jail: “Got anybody out there?”

“Sometimes it’s before church, sometimes after church or before the sun comes up in hunting seasons,” Parker said. “If you are going to do it, you will have to mandate it be a real hearing to preserve the record.”

Several big-city defense attorneys in the room looked stunned.

“In some counties, there is no record?” an incredulous Martin I. Jaffe, of Hollywood, asked. “I mean, what are we doing? We need to address that. I think it’s insane that we have to sit down and rewrite a first appearance rule that all hearings have to be recorded and have to be done during normal business hours and with sufficient notice to the state attorney and public defender. I mean, these are things that are so fundamental. I didn’t know it was going on.”

Karen Moore, who teaches criminal defense at Florida A&M University law school, said, when she worked at the public defender’s office in Levy County, they had to wait for hours for a first appearance hearing on a serious case until the judge finished his Christmas shopping.

“We’d get an update every hour: ‘Well, he’s in Sears now.’”

Blair shook his head and said, “She’s right.”

Eighth Circuit State Attorney Bill Cervone said the FPAA opposes the rule change.

“It would literally be between impractical and impossible for us to comply with it. I don’t have the manpower to do it. I don’t have a judiciary that does things with any consistency on when and where first appearances are held,” Cervone said. “If I had a rule and was forced to have someone in those counties, I pretty much guarantee you it would be whoever drew the short straw that day, and not who is handling that person's trial.”

If prosecutors don’t like a judge’s decision made in their absence, he said, they ask for a reconsideration hearing with the trial judge, as soon as it can be scheduled.

Cervone agreed that technology would solve the problem — with video hookups from jails in outlying counties, as is done in the Second Judicial Circuit. But in the Eighth Circuit, he said, Gilchrist and Union counties don’t have the money to pay for such technological advances.

“Please don’t put us in a position where we have no alternative and are not complying with the rule,” Cervone urged. “Sometime, a judge will hold us in contempt.”

Silvershein, the chair of the subcommittee, said, “Ideally, I agree with Mr. Murrell that the rule says the PD and ASA should show up. But I am from an urban district with a one-county circuit, with 190 lawyers in my office. . . . What Mr. Blair has told us is very persuasive. I do believe the state is going to have to evolve to have electronic courtrooms. It would solve a lot of problems, and make the proposed rule more palatable.”

Stephen Kramer, with Miami-Dade’s public defender’s office, said he worked previously with the 19th Circuit Public Defender’s Office.

“When I left the 19th Circuit, the bond hearings were deplorable and it’s hasn’t changed 25 years later. Something has to be done,” Kramer said. “We have to make this mandatory. We do a tremendous service for our clients before they are otherwise cast adrift. . . .Who knows how long they have to wait to get before a judge for a meaningful bond hearing? This is long overdue.”

Roshawn Banks, a Plantation criminal defense lawyer and a member of the subcommittee, agreed: “There needs to be a full-scale bond hearing for everyone arrested. It’s the first time an independent neutral person, not law enforcement, looks to see if the government is using its power correctly and truthfully. If you are poor, the presumption is not of innocence but being broke. Broke means you don’t get out of jail — which means poor people are guilty until they get money to get out.”

Second Circuit Judge Tom Bateman moved to table the issue until the June meeting, because time had run out and the issue is important to debate among the full committee, he said. The vote was 17-to-8 to table the issue.

Before the committee adjourned, Duval County Judge Ron Higbee sparked applause when he said: “What did Gideon cost us? What is not doing it right cost us, in terms of what we think of the criminal justice system, if it’s not done in a fair way and allows the representation of both sides, the state, and public defender? What does that say about the way the system should be run?. . . Let’s send a message to the legislature about the importance of funding the system.”

David Rothman, a Miami criminal defense attorney and member of the Bar’s Board of Governors, added: “Part of justice is releasing people who shouldn’t be in jail. You guys have got to come up with a solution soon. The more we wait, the more people sit in jail. . . . Don’t put a dollar price on freedom. I will take the message to the Board of Governors that lobbying includes funding for this. . . . Let’s do what is right. And let’s go get the money.”

[Revised: 11-15-2018]