Justices tackle case of overworked public defenders

By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, June 7, 2012......Grappling with whether poor people are getting adequate representation, the Florida Supreme Court heard arguments Thursday about whether the Miami-Dade County public defender's office should be able to decline to take cases because of overwork.

The dispute raises constitutional questions about the quality of representation provided to criminal defendants and the relationship between the courts system and the Legislature. Attorney General Pam Bondi's office and a statewide group of prosecutors have fought the Miami-Dade public defender's attempts to decline to take certain types of felony cases.

Parker Thomson, an attorney for the public defender, argued Thursday that the Supreme Court has said lawyers should not represent clients if they can't effectively handle the cases.

"This court said when you can't represent a person, get out," Thomson said. "And if you have not yet accepted representation, decline."

But Louis Hubener, an attorney for the state, pointed to a law that bars public defenders from withdrawing from cases solely because of "inadequacy of funding or excess workload." Also, he raised questions about the past management of the Miami-Dade public defender's office, saying it had not filled open lawyer positions and instead used the money to increase salaries.

"He (the public defender) has to be accountable to someone for the use of his resources,'' Hubener said.

The Supreme Court, which typically takes months to rule in such disputes, will consider two decisions by the 3rd District Court of Appeal that sided with the attorney general and prosecutors. The issue has been in the court system since 2008 and involves two related lawsuits --- one focused on the overall public defender's office and the other focused on an assistant public defender.

In the lawsuit involving the overall office, for example, a circuit judge ruled that then-Public Defender Bennett Brummer could temporarily decline to take third-degree felony cases. The 3rd District Court of Appeal overturned that ruling in 2009 and followed a year later in the case involving the assistant public defender.

Public defenders sometimes withdraw from representing people because of conflicts that arise, such as two clients being implicated in the same crime. The state has a system of what are known as "regional counsels" that can take cases, and private lawyers also can be appointed.

The Supreme Court justices Thursday asked numerous questions of attorneys on both sides of the Miami-Dade case. Justices R. Fred Lewis and Barbara Pariente, for instance, questioned Hubener about meeting the constitutional requirement that poor defendants receive effective legal representation.

Pariente said she agrees evaluations have to be based on more than just excessive caseloads. But she also pointed to an assistant public defender with 600 or more cases, indicating she thought that could prevent effective representation.

"I can't believe there was a lawyer who had a caseload during a year of 600 cases,'' she said.

Justice Ricky Polston, meanwhile, asked Thomson whether the "heart of the matter" was not enough funding from the Legislature. Polston also asked how the Supreme Court could resolve the issues.

"We can't just make a decision out of thin air,'' Polston said at one point.