The Florida judiciary often gets a bad rap. And sometimes it seems like it deserves it. But we have a pretty good, sometimes very good, state Supreme Court, and there's actually a lot of talent on the state bench. (I encountered this personally when I served on a state judicial committee staffed primarily by judges from all over the state.)
All this by way of preface to an opinion by Chief Judge Lee Haworth of Manatee County, which is a must-read for anyone interested in issues of indigent defense, the 6th Amendment, the Florida Constitution, the cruelty of Republican-dominated legislatures, or even basic due process.
The background goes like this: after selling the public on tax cuts, some as recently as the election a couple of months ago, and promising that there would be no cuts in anything (money grows on trees, right?), the Florida legislature is now in full panic mode. The schools are getting chopped. And so is everything else. About the first thing to go, even before the latest round of tax cuts I believe, was payments to lawyers for criminal defense work.
The Florida legislature decided that the most a lawyer should be paid for a non-capital case was $2500. No matter how many counts in the indictment. No matter how long the trial. They did make an exception for very extraordinary circumstances, where there were more than 20 prosecution witnesses, and the case took more than 75 hours: then the judge could double the fee. Only upon a finding that this payment would be “confiscatory” could the judge go above $5000, and even then for non-capital cases the maximum hourly fee available was $75/hour, well below the norm for the criminal bar. Plus, the fee determination would only be made at the end of trial — so the lawyer works only on spec without any idea what s/he'll be paid, has to front all the expenses (none of which are refundable by the state), and has to wait to see how long the state bureaucracy will take to actually pay out — sometimes months.
The purpose of all this was to screw trial lawyers, and even more to screw defendants by creating an overwhelming financial incentive to either cop a pleas or do a lousy job of representation.
Pursuant to the bill the Florida so-called “Justice Administrative Commission” prepared a contract that private lawyers could sign to be compensated for court-appointed work. The terms of that offer are amazingly bad, and not surprisingly very few lawyers have been willing to agree to them. Indeed, a very large fraction of the lawyers who formerly listed themselves as willing to accept court appointments for indigent defendants removed themselves from the list.
As a result, when relatively tiny Manatee County faced a giant multi-party conspiracy case, the number of defendants exceeded the supply competent and available lawyers. And the pool of competent but unwilling local lawyers consisted of sole practitioners who couldn't drop everything else to work for nothing and still make their mortgage. While it is accepted that courts can order an unwilling lawyer to represent the indigent, it is also settled law that you can't require a lawyer to bankrupt himself to do so. Yet, to pay what it would take to represent the unrepresented parties would bust the caps in the Florida statute. (And also would require progress payments were the case to drag on.)
In a careful opinion Judge Haworth bit the bullet and declared the Florida fee law as unconstitutional as applied to the facts before him, and entered an order allowing a quite modest but not confiscatory fee of $110 per hour for the involuntarily appointed lawyer in this — for Manatee County — extraordinary case. The authority for this ruling is given as the Florida State Constitution, Article V, Section 1 (creating courts, and inherently empowering them) and Article II, Section 3 (separation of powers).
Rather than rely only the inherent power of the courts, I would have liked to see a citation to the Florida Bill of Rights, such as Article I, Section 2 (“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty…”), Section 9 (“No person shall be deprived of life, liberty or property without due process of law…”), Section 16(a) (“In all criminal prosecutions the accused shall, … shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both…”), Section 21 (“Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”), but you can't have everything. And Chief Judge Haworth can hardly be blamed for relying on the court's inherent powers, since he was only following the lead set by the Florida Supreme Court in Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986).
I hope this starts a trend.
(Case spotted via Rumpole)
