Florida’s Supreme Court, in what can only be described alternatively as “remarkable” and “yeah, no shit”, just last week decided that being “overworked” is a state that can lead to ethical violations and public defenders who are so “overburdened” can be permitted to refuse appointments en masse.
The story started with the public defenders in the Eleventh Judicial Circuit of Florida being horribly overworked and overburdened with high caseloads – hello, welcome to the state of being – and decided to refuse appointments in all third degree felony cases, some 21 in all.
We’re overworked, they said, like you’ve always said. So now that chicken has come home to roost. We’re so overworked, they said, that we can’t possibly effectively represent all these clients. We can’t investigate, we can’t meet with the clients, we don’t have time to talk to each client. We have to “triage”, which means give priority to the oldest and most difficult cases first, which means, if you’re keeping track, that clients sit in jail for shitloads of time without meeting lawyers and without having any work done on their cases.
So, the Florida Supreme Court said [PDF], this is not tenable. Such representation puts defense attorneys in the position of having to provide representation below constitutional standards.
So we will allow defense attorneys to withdraw and perhaps appoint other attorneys.
Defense attorneys. The gatekeepers of justice. The benchmark for what is Constitutional and what isn’t. The overreliance on Gideon as a test for the efficacy of the system. The new mantra of Appellate Courts seems to be “if defense counsel didn’t object, it must’ve been okay”. Nevermind that defense counsel was frazzled, unaware, overburdened and overworked.
Then we come to this choice quote, sure to be repeated in every story about this decision:
Witnesses from the Public Defender’s office described “meet and greet pleas” as being routine procedure. The assistant public defender meets the defendant for the first time at arraignment during a few minutes in the courtroom or hallway and knows nothing about the case except for the arrest form provided by the state attorney, yet is expected to counsel the defendant about the State’s plea offer.
In this regard, the public defenders serve “as mere conduits for plea offers.” The witnesses also described engaging in “triage” with their cases – giving priority to the cases of defendants in custody, leaving out-of-custody defendants effectively without representation for lengthy periods subsequent to arraignment.
The witnesses also testified that the attorneys almost never visited the crime scenes, were unable to properly investigate or interview witnesses themselves, often had other attorneys conduct their depositions, and were often unprepared to proceed to trial when the case was called. Thus, the circumstances presented here involve – 34 – some measure of nonrepresentation and therefore a denial of the actual assistance of counsel guaranteed by Gideon and the Sixth Amendment.
Great stuff. You know what’s missing? Any acknowledgment that the defense attorney is but a bit player in this game. That a share of the responsibility and blame lies with the prosecutors and judges.
Meet and greet pleas? You know why they happen? Because judges and prosecutors make “arraignment only” plea offers. Because they say: “take this non-jail time offer today or you’ll never get it back”. The defense attorney, reading a police report for the first time, cannot refuse to tell his client of the offer, nor can any sane attorney counsel his client otherwise.
But that’s not the attorney’s fault, nor is it the fault of high caseloads. They know nothing about the case in these meet and great pleas. You know why? Because they’re given no discovery. The State doesn’t turn it over for a while and in some cases it’s always a fight. But apparently that’s the public defender’s fault.
Are we overworked? Yes. Are we overburdened? Yes. Is there a conflict of interest? Yes. But it would be nice to see that the system actually acknowledged all the problems instead of making us the gatekeepers of fairness, which is a neat trick, if you think about it, because when it comes down to it, we control nothing.
Maybe now the right to effective assistance of counsel will mean something in Florida. Time to pay attention to those other rights.
Compare and contrast the Connecticut Supreme Court which said, inexplicably, that there is no conflict when two members of the same office represent two co-defendants, one of whom was snitching on the other.
Also compare the FL Supreme Court’s cognitive dissonance when dealing with death row lawyers who are overworked and overburdened. Apparently death is different.