Defender law stirs critics

Experienced attorneys are opting out

By Pat Gillespie
pgillespie@news-press.com
Originally posted on July 06, 2007

Special to news-press.com

A law change supposed to help save the state money could come at the expense of cash-strapped criminal defendants.

Critics of the law predict a new office created to complement the public defender will have attorneys who are younger and less experienced than the current list of court-appointed attorneys the office is replacing.

Several experienced attorneys on the court-appointed list are dropping off because many of their cases are being taken by the new office and under the law, they won't be paid until after a case is completed.

But supporters of Senate Bill 1088, which went into effect Sunday, say young attorneys can provide sufficient criminal defense and still save the state tens of millions of dollars in the process, cutting into private attorneys' funds, which is the real source of their ire.

The new office — a Regional Conflict Council — will provide representation to a second defendant in a crime when the Public Defender's Office represents the first defendant. Usually, an office represents only one defendant because there may be a conflict of interest.

All of this is bad news for poor defendants, several local attorneys say.

"If you don't hire an attorney, you might be crushed by the wheels of justice waiting for someone to look at your case," Fort Myers attorney Jay Brizel said. "That's a great tragedy."

Uncertainty

Many in the court community are unsure how the council will work, what types of applicants will take the job and how it will provide ample representation. Five offices will be set up statewide, based on the Court of Appeals districts.

For Southwest Florida, that district runs from Pasco to Collier — a 14-county span compared with the 20th Judicial Circuit's Public Defender's Office, which represents a five-county span — Lee, Charlotte, Collier, Glades and Hendry counties.

Sen. Victor Crist, R-Tampa, who introduced the bill, said the five conflict council offices will split a $50 million budget and counties will supply the office space — estimated at $2.5 million statewide.

Right now, it's also unclear how many attorneys each office will have and where each office will be located. Tina McCain Matte, who chairs the Supreme Court Judicial Nominating Commission, said that will be decided by the five council leaders.

"With the new position, obviously it'll be a little trial by error," she said.

Matte said the commission has received about two dozen applications for the five positions, which will each pay $80,000 annually. She said she expects more today, the deadline. Recommendations will be sent to Gov. Charlie Crist. It's unclear how much the council's attorneys and support staff will be paid.

The salary is part of the problem, private attorneys say. Attorneys in Fort Myers estimate their average hourly fee ranges from $200 to $300. A year's work earns many in this area $250,000-$400,000 or more. So, a job that pays $80,000 per year may get inexperienced applicants.

"You can't just get a kid out of law school and say, 'Go do it,' " Brizel said. "It is very difficult to envision this working smoothly."

Dave Aronberg, vice chair of the Senate Criminal Justice Committee, said the bill was proposed as a money-saving effort but didn't create much controversy. It passed unanimously.

"Whether it will work or not, we will see," said Aronberg, a Democrat who represents parts of Lee County. "If this system does not work, I will push to put the old system back in place."

The uncertainty is affecting an 18-year-old murder suspect Richard Elkins, accused of killing a man in Bonita Springs in March.

Because a grand jury recently indicted him on first-degree murder charges, Brizel, his first attorney, had to withdraw, lacking qualifications to defend capital clients. Now Elkins sits in the Lee County Jail without defense representation as his co-defendant is already represented by the Public Defender.

Because the conflict council won't be fully established until October and many private attorneys are falling off the court-appointed list, it's unclear who will represent Elkins. That could bring up issues with the Sixth Amendment, which provides the right to a speedy trial.

Money issues

The Judicial Administration Commission, which in 2004 was empowered to dole out money to court-appointed attorneys, has, in the last 36 months, increased its payments from $32 million to $92 million, Sen. Crist said.

"That's what caught our attention," he said. "The costs are skyrocketing."

The commission has standard payment fees for different types of cases, such as for capital cases, which were paid at $3,500 and then increased to $15,000 this year. But the $3,500 fee was routinely challenged by attorneys saying it wasn't enough.

"It's like an open checkbook — there's just no bottom to the barrel," said 20th Judicial Circuit court spokesman Ken Kellum. "How do you control the cost? That's the crux of the problem."

Many attorneys say the $15,000 still isn't much help because capital cases — in which the penalty can be death — can cost hundreds of thousands of dollars to defend.

"No defense attorney would do it for $3,500 and no defense attorney will do it for $15,000," Fort Myers attorney David Brener said. "There's no way to do a two-year capital case for $15,000 and do a good job. No way. They're looking at everything from a financial aspect."

Of the seven private attorneys on the 20th Judicial Circuit's court-appointed list for capital cases, five said they won't sign up for the list or already have taken off their names. One said he will wait to see how the system functions and one was unavailable for comment.

Those decisions are based on a new payment change for court-appointed attorneys. Under the old system, attorneys would be paid 80 percent of their fee after a year with the rest coming at the end of the case. Now, attorneys won't get paid until the end of a case.

"What other occupation do we ask for people to work for two years and not get paid?" Brener asked. "It's unfair."

Fort Myers Attorney John Mills said he won't be signing up for any more court-appointments because he can't afford to work for free.

"Not only are they cutting the fee, now they're cutting the volume," he said. "No one's going to take cases."

Fair practice

Gov. Crist said private attorneys who are complaining about the law change are simply upset about the state's in-house approach to criminal defense.

"The attorneys that are screaming that the sky is falling only care about losing profits," Crist said. "If you're a public defender who's dishing out cases to their friends in the private sector, you're basically appeasing your constituency — the ones who are paying for their campaigns."

Crist said the attorneys hired for the conflict council will be paid a flat rate, which should motivate them to get the job done.

"It doesn't matter if he puts an hour or 100 hours in — he's going to make the same at the end of the day," Crist said.

And many inexperienced attorneys got opportunities in state attorney or public defender offices as well as private firms before moving up the ranks.

"Do you think all these big-wig attorneys do all the work," he asked. "No, it's the fresh-out-of-school attorneys who do it. Why should the state be denied that?"