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Tuesday, May 28, 2013

The Supreme Court of Florida Rescues the Public Defender for the Eleventh Circuit.

 The Great Recession’s effect on the judiciary in Florida has been profound.  While Tallahassee was “tightening the belt” by slashing funding, cutting judicial salaries, and mandating 3% contributions to an already well-funded public employee pension system (see Scott v. Williams, 107 So. 3d 379 (Fla. Jan. 17, 2013)), dockets in both civil and criminal courts grew longer and longer.  In civil court, foreclosure filings ballooned as the housing market imploded.  And in criminal court, as joblessness increased, so did the number of defendants. 

Paralyzed by budget cuts and hiring freezes, the Public Defender’s office for the Eleventh Judicial Circuit (Miami-Dade County) was unable to respond to the increased workload brought by the ever growing number of filings.  Fearing that the office’s excessive workload and underfunding had diminished the quality of representation such that it could no longer meet its legal and ethical obligations to criminal defendants, in 2009 the Public Defender filed motions in 21 cases asking to be discharged.  The trial court permitted the Public Defender to decline future appointments in third-degree felony cases.

In State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), the State appealed this trial court order granting prospective withdrawal.  The Third District Court of Appeal reversed the trial court and held that in order for the Public Defender to withdraw from an appointed representation based on conflict of interest, an individualized showing must be made on a case-by-case basis — aggregate relief was not available.  Further, the Third DCA held that an excessive caseload alone was not a conflict of interest under § 27.5303 (2007).  With section 27.5303(1)(d), the legislature sought to prevent this very scenario by providing that:
In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.
Then in 2010, an Assistant Public Defender sought to withdraw from representing a single defendant based on an excessive caseload, and he challenged section 27.5303(1)(d) as unconstitutional.  The trial court granted the APD’s motion to withdraw, but denied the constitutional challenge.  In State v. Bowens, 39 So. 3d 479 (Fla. 3d DCA 2010), the Third quashed the order granting the APD’s withdrawal and upheld 27.5303(1)(d) as constitutional

In Public Defender, Eleventh Judicial Cir. of Fla., et al. v. State of Fla., No. SC09-1181 & No. SC10-1349, (Fla. May 23, 2013), the Supreme Court of Florida accepted review of both cases.  The Third’s opinion in the first Public Defender case was reviewed under Article V, § 3(b)(3) because it “expressly affect[ed] a class of constitutional or state officers,” i.e., public defenders.  And the Third's opinion in Bowens was reviewed under Article V, § 3(b)(4) because the Third certified the issue as one “of great public importance.”

The Court reversed the Third such that appointed counsel are now permitted to withdraw prospectively from representing indigent defendants when counsel’s ability to competently represent those defendants would be prevented by excessive caseloads or underfunding

But in order to reach this holding, the first Court agreed with the Third that § 27.5303(1)(d) does apply to cases of prospective withdrawal, which the Public Defender sought with its motion to withdraw from future third-degree felony cases.  And it agreed that § 27.5303(1)(d) was constitutional; however, it employed the doctrine of constitutional avoidance to hold that:
[T]he statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or underfunding that would result in ineffective representation of indigent defendants nor preclude a trial court from granting a motion to withdraw under those circumstances.  
Further reversing the Third, the Court held that:
  • Aggregate relief was appropriate where there is evidence of an office-wide crisis of inadequately represented clients,
  • The standard for withdrawal under 27.5303 is whether an excessive caseload results in a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, and
  • The State Attorney’s Office has standing to contest appointed counsel’s motion to withdraw based on conflict of interests.

This last point in the Court’s holding brings up an ironic distinction:  the Court has held that the Office of Criminal Conflict and Civil Regional Counsel (which represents indigent defendants when the Public Defender’s office has a conflict) does not have standing to contest the Public Defender’s motion to withdraw, despite the fact that its own workload will increase if such motion is granted.  But the State Attorney’s Office does have standing to contest the motion, even though its workload will remain the same regardless of who represents the defendant — the SAO will prosecute the defendant whether the motion is granted or not.  Even though the SAO is a party to the criminal case by virtue of its role as prosecutor, it is unclear from the Court’s opinion exactly what stake or interest it has in who represents the defendant.

While the Court held that the Public Defender’s office may be able to withdraw from future representation, it remanded the case to the trial court “to determine if the circumstances still warrant granting the Public Defender’s motion to decline appointments in future third-degree felony cases under the standards approved in [the] decision.”  The Court determined that based on the record on appeal, the Public Defender “demonstrated cause for withdrawal pursuant to section 27.5303.”  So if the “same conditions still exist,” the Public Defender will be able to withdraw.  

Indeed, the Court was “stuck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender’s representation of indigent defendants.”  Here are a few choice examples:
The noncapital felony caseload has been in the range of 400 cases per attorney for a number of years.  Yet even the highest caseload standard recommended by professional legal organizations is 200 to 300 less.
...
Third-degree felony attorneys often have as many as fifty cases set for trial in one week because of the excessive caseload.
... 
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.
But who is to blame for this “damning indictment of the poor quality of trial representation that is being afforded indigent defendants by the Public Defender in the Eleventh Circuit”?  The Court sympathized with the Public Defender’s office, and provided hints at the ultimate causes:
The reduced budget of the Public Defender and the excessive workload have contributed to a decrease in the number of assistant public defenders at the same time that the number of noncapital felony cases assigned to the office has increased by twenty-nine percent,”
and,
Additionally, third-degree felony cases, which comprise approximately sixty percent of all felony filings in the Eleventh Circuit, are clogging the system and negatively impacting the Public Defender’s felony attorneys’ caseload.
But the Court did not expound on whether this increase in appointments and felony filings was due to increased enforcement, increased crime, decreased ability of defendants to afford counsel, or something else entirely. 

Whatever the cause, hopefully the need for en masse prospective withdrawals has ended.  On remand, the circuit court may find that conditions have improved enough from what they were in 2009 such that withdrawal is no longer warranted.  The Public Defender’s office has hired a few new classes of assistant public defenders in the interim. Yet many of those new assistant public defenders have already moved on to private practice.  And funding for the judiciary and criminal justice system remains low as Florida continues its economic recovery. 

After Public Defender, it will be interesting to see appointed counsel in any other circuits  begin filing motions to withdraw as a whole office based on excessive workload, or if the Eleventh Circuit was alone in its strife.


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