Defenders argue plan for defense

The Florida Times-Union

June 27, 2007

By Paul Pinkham,
The Times-Union


Florida defense lawyers predict disaster for a legislative plan that creates a new state agency to replace court-appointed counsel for indigent defendants who can't be represented by a public defender.

They foresee offices filled with overworked, underpaid attorneys, diminishing the quality of justice for the poor and leading to an increase in costly appeals and delays in criminal and child dependency cases.

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Even Gov. Charlie Crist, who signed the legislation into law, expressed reservations about it last week, saying in a letter he was concerned about the "radical replacement" of court-appointed private lawyers with 384 new state employees.

But the new agency's primary champion says its critics are overreacting and it will save the state millions of dollars in costs to defend accused criminals in cases where public defenders have conflicts of interest. State Sen. Victor Crist, who's not related to the governor, said the new Offices of Criminal Conflict and Civil Regional Counsel will allow state government to control the quality and spiraling cost of such representation.

"The compelling reason we did this is money," said Sen. Crist, R-Tampa and chairman of the Criminal and Civil Justice Appropriations Committee. Florida was looking at spending $100 million this year on court-appointed lawyers, he said. The annual budget for the new agency is half that.

He said lawyers are upset because the new system will cost them money.

Most indigent defendants in Florida are represented by the public defender's office in their county. But sometimes the public defender has to opt out - in cases with multiple defendants, for instance, or when the public defender has represented the victim in the past.

Traditionally, judges have appointed private lawyers to handle conflict cases, and Sen. Crist said those costs have nearly tripled the past three years.

The new agency will shift that responsibility Oct. 1 to one of five conflict offices across the state. The one serving Northeast Florida will encompass 32 counties, from Jacksonville to Pensacola. The state will pay for office space the first 18 months. Then that cost shifts to the counties.

The legislation dictates that each office will be headed by a regional counsel who will be paid $80,000, about half of what elected public defenders.

"They're trying to save money at the expense of the litigant," said Jacksonville defense attorney Refik Eler. "What they're saving up front will be spent down the road."

Eler said he understands the need to get costs under control but said the concern among his colleagues is that the new office will be staffed with inexperienced lawyers who aren't equipped to handle complex cases, leading to more money being spent on appeals.

The problem could be particularly acute in smaller counties, where the ratio of conflicts is higher because people know each other, said attorney Teresa Sopp of Nassau County. It could be exacerbated by the number of lawyers who plan to stop accepting court-appointments because of cuts in their fees.

"It's going to make it very difficult for felony judges to find competent representation," she said. "I don't know how they're going to attract people who are qualified to handle death penalty cases, for instance."

A. Russell Smith of Jacksonville, president of the Florida Association of Criminal Defense Lawyers, said he doesn't expect the quality of lawyers to be the problem. But he's concerned they will be stretched too thin. For instance he said early estimates are nine or 10 lawyers will handle criminal cases in Duval, Clay and Nassau counties.

Gov. Crist expressed similar concerns in a June 19 letter to the secretary of state. While praising the Legislature for tackling the spiraling costs of court-appointed legal representation, the governor said he's concerned about caseloads in the new agency. Citing the North Florida office in particular, he questioned whether the office will have sufficient staff to handle 32 far-flung counties.

The governor urged lawmakers to closely monitor the new agency to ensure delivery of legal services to the poor isn't compromised. Sen. Crist promised that would be done, and additional funding would be found if necessary.

"Nothing is carved in stone," he said. "Any improvements that need to be made will be made."

But he said he doubts many smaller counties will need the new agency's services, and he said 90 percent of the work will involve simple cases that won't require "a high-end, experienced, big-gun lawyer." He said he expects the state to hire young lawyers eager to prove themselves and experienced professionals to oversee their work.

Applications for regional counsel were due Friday, but the Florida Supreme Court Judicial Nominating Commission extended the deadline until July 6. A list of applicants will be available then, a spokeswoman said.

paul.pinkham@jacksonville.com, (904) 359-4107