Tuesday, April 10, 2007

Blasting 'Overpayment' of Bills in Murder Case, Fla. Judge Halves Defense

April 10, 2007


Blasting 'Overpayment' of Bills in Murder Case, Fla. Judge Halves Defense
Fee Request

Jordana Mishory, Daily Business Review

A veteran Broward County, Fla., Circuit judge has called the legal bills in
the capital murder case against a former federal informant one of the
"worst" examples of "overpayment" of legal fees and costs that she's ever

The case of Luis Martinez, who has been jailed since his arrest in November
2003, is now on its fourth set of publicly paid defense attorneys and has
run up legal bills of $46,000 so far. With a trial date nowhere in sight,
Judge Ana Gardiner slashed the fees requested by Fort Lauderdale, Fla.,
defense lawyer Barry Butin in half -- to $10,600 -- when Butin recently
withdrew from the case after 14 months.

Under state statute, the fee cap for representing defendants at the trial
level in capital homicide cases is $3,500. For the state Judicial
Administration Commission to pay attorneys more, the court has to find that
the extra billed hours were reasonable and that the case was extraordinary.

Broward County officials have flagged the case of State v. Luis Martinez as
a prime example of why Florida's -- and particularly Broward County's --
system of appointing private attorneys to represent indigent defendants when
the public defender's office faces a conflict has far exceeded its budget.

In an interview, Butin, who has been handling conflict counsel cases since
1994, said the Martinez case was only the second such case in which he
requested more than the $3,500 fee cap. "I was on the case for 14 months,"
he said. "I thought I had the hours to ask for more money."

Gardiner could not be reached for comment by deadline. Calls to the JAC's
general counsel and executive director for comment were not returned by

Patrick Rastatter, a Fort Lauderdale attorney who represented Martinez
before Butin was appointed, said it has been hard to get paid for billed
hours in conflict counsel cases, especially since the state exhausted its
conflict counsel budget and had to allocate extra money in November, January
and March.

Rastatter said the state often doesn't pay conflict counsel for all the time
and energy they put into cases. "You can't put on a time sheet that you sat
at a desk and just did some thinking," he griped.


When a public defender's office withdraws from a case due to conflict
related to other cases it's handling, the judge appoints a so-called special
public defender from a list of private attorneys. These conflict counsel
cases are overseen in each judicial circuit by the circuit's Indigent
Services Committee, which consists of the chief judge, the public defender
and two private attorneys.

The Legislature created the current conflict counsel system in 2004 when it
shifted responsibility for funding core justice system costs from the
counties to the state. Critics say the system was badly underfunded from the

Statewide, the program was budgeted for $60 million in the 2007 fiscal year,
but it has gone $25 million over budget. The governor had to release extra
funds to pay the conflict counsel attorneys and their experts. In the
meantime, court reporters have gone unpaid, experts couldn't be hired and
cases were delayed.

The Florida Legislature is debating ways to revamp the system to reduce
costs. A Senate committee has proposed creating a second public defenders'
office in each of the state's five appellate districts to handle conflict
cases, which it says will save nearly $42 million. A House committee
proposes to give the existing public defender's office oversight over
conflict counsel cases.

Keeping the current system will cost the state an estimated $92 million next
year, said Sen. Victor Crist, R-Tampa, who heads the Senate Criminal and
Civil Justice Appropriations Committee.

Part of the reason why the system has gotten so expensive is that individual
cases like Martinez's cost so much as attorneys and their experts request
fees above the set limits, said a state Senate staff member who asked not to
be named. Some attorneys ask for fees higher than the $3,500 cap when they
put in large numbers of hours.

More is spent on conflict counsel in Broward than in any other county in
Florida. Lawyers in Broward were paid $6.6 million during the 2006 fiscal
year. Broward outspent far more populous Miami-Dade County by $600,000. It
outspent similarly sized Palm Beach County by $3.4 million. It has far
surpassed Hillsborough County's costs by $5.1 million.

"I'm a pretty good defense lawyer, but I can't defend these numbers,"
Broward Public Defender Howard Finkelstein said. "We're pretty out of
whack." Finkelstein said the Martinez case is the "poster child" for a
system run amok.

Finkelstein attributed the high costs in Broward to the PD's office's
withdrawal from a large number of cases in the past. He also said Broward
judges have been generous in allowing payments over the cap. There are also
cases like the Martinez case, in which several attorneys are appointed and
withdraw. All get paid.

Bob Wills, the Broward chief assistant public defender, said the Judicial
Administration Commission, which oversees the release of state funds to pay
for indigent services, brought the Martinez case to his attention. Wills
said the JAC expressed concern when Butin requested nearly $19,000 in fees
despite being chastised by the judge for not performing all of his duties.
Butin led a third set of lawyers representing Martinez.

But Eric Schwartzreich, the president of the Broward Association of Criminal
Defense Lawyers, said the $46,000 paid out so far in the Martinez case is a
"paltry amount" compared with the fees attorneys earn in representing more
affluent defendants in major felony cases.

In death penalty cases involving defendants with private means, a defense
attorney generally earns between $100,000 and $200,000.

"I see the JAC moaning, and they have to be fiscally responsible," he said.
"But [special public defenders] take cases at a reduced rate," and they
generally are not abusing the system when they ask for fees above the cap.


Martinez, now 41, was charged with the October 2003 murder of Charles
Moretto, who was shot in the head at his $2 million Lighthouse Point home.
Police found that Moretto's cell phone, watch, gold necklace and the title
to his Bentley were missing after the killing.

Several witnesses said Martinez had expressed interest in purchasing
Moretto's car, and that Martinez was with the victim on the day of the
murder. Martinez had been working as an informant with the U.S. Bureau of
Alcohol, Tobacco and Firearms. The Broward State Attorney is seeking the
death penalty for Martinez.

Martinez was first represented by the Broward PD's office, which cited a
conflict and withdrew. The court appointed Rastatter, who also withdrew due
to conflict. In May 2005, Gardiner appointed Butin as special public

Last June, Butin filed a motion asking to postpone the trial until February
2007 or else to be removed from the case. He said most of the defense's
legal investigative work wasn't done -- even though Martinez was charged in

"The responsibilities thrust upon counsel in this case carry with them
psychological and emotional pressures unknown elsewhere in the law," Butin
said in his motion for withdrawal.

In an interview, Butin declined to comment on why he wanted to withdraw from
the case. "I understand that the judge has a job to move the case," Butin
said. "But [Martinez] has to have his lawyers be ready on a capital case."

Later that month, Gardiner granted his motion to withdraw. That same month,
she appointed Fort Lauderdale attorneys John Howes and Christopher Grillo to
replace Butin.

In January, Butin filed for attorney fees of $19,000.

During a series of hearings after Butin withdrew, Judge Gardiner expressed
frustration that the case was not progressing quickly enough. The case, she
said, is tying up her entire criminal docket. There is no trial date

"This case is almost in a position right now as it was in January of the
year 2004 when it started," Judge Gardiner said during a Feb. 2 hearing
concerning Butin's fees. The judge noted she had had to grant nearly one
continuance a month since Butin entered the case.

Gardiner complained she had to enter several orders compelling the defense
to review evidence or to enter a list of questions for depositions. This "is
the one case that I've entered the most discovery orders on my own to try to
move this matter," Gardiner wrote. "I cannot with good conscience find that
the [nearly $19,000 in] fees requested by Mr. Butin are reasonable fees."

During the hearing, Butin said he took "no exception" to her comments.
Previously, he had acknowledged he couldn't handle the case.

During a Feb. 14 hearing, the judge expressed anger toward Howes and Grillo
for being behind schedule. "And my question is, since we're all such bright
people, what do I have to do to actually get the attention of the
attorneys?" Gardiner railed. "Do I have to put Mr. Howes to share a cell
with Mr. Martinez, or Mr. Grillo to share a cell with Mr. Martinez?"

During that hearing, Howes said he and Grillo have "basically started the
defense" of Martinez.

Grillo, the lead counsel, did not return a call for comment. Howes, in a
phone interview while on vacation, declined to comment on the previous
attorneys on the case. He said the Martinez case is in the midst of hearings
on a motion to suppress evidence.

"The case has been complicated by the number of lawyers involved," said
Rastatter, who has handled conflict counsel cases for three decades. "The
underlying case is not very complicated."


Martinez has been incarcerated in county jail since his November 2003
arrest. In March, the National Institute of Corrections found that Broward's
jails were chronically overcrowded due to an inefficient criminal justice
system that has defendants waiting too long to go to trial.

Finkelstein said Martinez's detention in county jail for 3½ years without
trial is close to record-setting. He said the average homicide case lasts
about two years. Any longer than that, he warned, is not good for the
defendant's mental health, the already overcrowded jail or the justice

In February, the Judicial Administration Commission asked Wills to bring the
case to the attention of Broward's Indigent Services Committee, which
oversees the circuit's conflict counsel program. The committee discussed the
issue at its March meeting, and transcripts of Judge Gardiner's criticism of
Butin's fees were circulated.

Broward Chief Judge Dale Ross, head of Broward's ISC, forwarded the
transcript to Schwartzreich, who said he spoke to Butin but won't take any
action. "I did appreciate that Barry fell on the sword and went into the
courthouse and said that he was over his head," Schwartzreich said. "I don't
think Mr. Butin jeopardized his client."

Butin said he would no longer serve as lead defense counsel in any murder
cases. "I think Mr. Martinez appreciated how hard I worked on the case, and
I know he has nothing but good things to say to me."


Source : Daily Business Review



Anonymous said...

It makes me sick to know that the Prison System even allowed this dangerous, demented and violent criminal out of jail in the first place. The fact that he was working as an informant with the ATF and was not monitored properly by the very incompetant agent who was in charge of Martinez makes my skin crawl. Because the ATF and the agent allowed the vicious demented Martinez out of jail it resulted in the premeditated murder of a decent human being. To think that he was arrested 18 times and was let out of jail is so wrong. Furthermore, the fact that I and my fellow taxpayers have to pay for his defense fees that are exceedingly high and that the case has not gone to trial makes me and every decent citizen wonder what has become of our judicial system.

Anonymous said...

My name is Laura Carnes. In 1996 I dated Mr. Martinez over the course of 3-4 months. Luis Martinez conned me out of about 8 thousand dollars and in the end when I tried to leave him brike into my house and tried to kill me. (NewTimes article Google it) I have NO DOUBT in my mind that he killed Mr. Morreto. Luis Martinez is a violent criminal who has gotten used to playing the justice system and entrapping other cons and dirty cops in order to recieve get out of jail free cards. His "wife" Nadezda Stefanovitch is no better, as she knew all about his attempted conning me out of an inheritance and aided and abetted him. His information is all lies he cooks up to play you idiots. If Mr. Martiez's mouth is moving, he is lying. He is also cunningly brilliant. There are numerous other law abiding citizens he has hurt physically and/or conned out of money. Shame in all the lax prosecutors, defense attys, police, judges, and anyone else who has shielded this "valuable witness" from proper prosecution. Moretto's blood is on ALL of your hands.
I might venture to say he is crazy, but he skillfully premeditates each twist like a chess player. Right now he is most likely 3 steps ahead of everyone...finding another scumbag to rat out for leniency, helping someone in the can on their case for commisary money, and figuring out which ACLU lawyer he will hire to sue Broward County for failing to provide adequate representation and causing undue emotional stress by causing lengthy incarceration without trial within a reasonable time. Let me tell you ACLU whiners the world is a better place with Mr. Martinez behind bars. If you don't believe in demons on Earth, go visit Mr. Martinez. He will change your mind. And to her Broward County bitch about 40K makes me sick! I almost paid with my life. Mr. Moretto was not as lucky.

Anonymous said...

im 14 years old and mr.Moretto or charles moretto or to me papa. charles moretto was my grandfather and i was only in first grade when he was murdered. the face that they let his killer out of jail makes me so scared to know that he is still out there. RIP papa i love and miss you so much<3