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Inadequacies of indigent representation

lawyer with client.jpg

Small talk on the elevator over at the Justice Center:  "So what you got going today, Joe?"

"Couple pretrials, supposed to start a trial in Russo's room at ten, but I'm on standby for trial in Corrigan's room, so I don't know..."

"That's nothing.  I've got fifty trials scheduled this week."

Actually, that's not small talk on the elevator over at the Justice Center, but it might be small talk on the elevator at the Miami-Dade Courthouse, at least according to this opinion of the Supreme Court of Florida.

The decision, which came down yesterday, provides a damning indictment of the adequacy of legal representation of indigent criminal defendants.  The case involves the attempt of the Florida Public Defender's Office to withdraw from various criminal cases, and to be allowed to decline future appointments in other cases, because their "excessive caseloads caused by underfunding meant the office could not carry out its legal and ethical obligations to defendants."  How excessive?  The noncapital felony caseload is about 400 cases per attorney, more than twice the maximum recommended by the ABA guidelines.  (At the time the motion to withdraw was filed, there were 105 attorneys to represent clients in 45,055 cases.) 

Third-degree felony attorneys often have as many as fifty cases set for trial in one week because of the excessive caseload.  Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial.  Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment.  Instead, the office engages in "triage" with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients.

And Florida is hardly an outlier here.  The opinion quotes from a decision on a similar issue by the Louisiana Supreme Court, dealing with the motion to withdraw of a single public defender.  The court found that the defender was handling seventy active criminal cases, had represented 418 defendants in an 8-month period, had at least one case set for trial on every trial date in that time, and had no investigative support or funds for expert witnesses.  Then there was the class action lawsuit brought by a group of indigent criminal defendants in New York alleging that the public defender's office there was deficient; the New York Court of Appeals noted that the defenders often acted as "mere conduits for plea offers."

The reason for this is relatively simple: in the past six years, the number of cases the Public Defender handles has increased by 29%, while its funding has decreased by 12%.  Nobody ever won political office by campaigning on paying more money to lawyers to represent criminal defendants.  The Florida legislature had actually passed a law prohibiting the Public Defenders Office from seeking to withdraw on the basis of excessive caseload.  The Supreme Court held that the inherent authority of the courts to ensure competent representation trumped that, and remanded the case back to the trial court to determine whether the motion to decline appointments in future cases should be granted.

By the way, it was a 5-2 decision.  Two of the justices found that the "anecdotal" evidence did not prove an actual violation of any defendant's constitutional rights.

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