July 6, 2007
Defender law stirs critics
Experienced attorneys are opting out
By Pat Gillespie, The News-Press
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."
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
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
"With the new position, obviously it'll be a little trial by error," she
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
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,
$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
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.
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."
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-
Source : The News-Press