Pubdate: Sun, 9 Nov 2008
Source: New York Times (NY)
Page: A1, Front Page
Copyright: 2008 The New York Times Company
Author: Erik Eckholm


MIAMI -- Public defenders' offices in at least seven states are 
refusing to take on new cases or have sued to limit them, citing 
overwhelming workloads that they say undermine the constitutional 
right to counsel for the poor.

Public defenders are notoriously overworked, and their turnover is 
high and their pay low. But now, in the most open revolt by public 
defenders in memory, many of the government-appointed lawyers say 
that state budget cuts and rising caseloads have pushed them to the 
breaking point.

In September, a Florida judge ruled that the public defenders' office 
in Miami-Dade County could refuse to represent many of those arrested 
on lesser felony charges so its lawyers could provide a better 
defense for other clients. Over the last three years, the average 
number of felony cases handled by each lawyer in a year has climbed 
to close to 500, from 367, officials said, and caseloads for lawyers 
assigned to misdemeanor cases have risen to 2,225, from 1,380.

"Right now a lot of public defenders are starting to stand up and 
say, 'No more: We can't ethically handle this many cases,' " said 
David J. Carroll, director of research for the National Legal Aid and 
Defender Association.

The Miami-Dade case, which is being closely watched across the 
country, was appealed by the state, which says that defender offices 
must share the burden of falling revenues. On Friday, the Florida 
Supreme Court sent the case to an appellate court for a ruling. If 
the judge's decision is upheld, it will force courts here to draw 
lawyers from a smaller state office and contract with private lawyers 
to represent defendants, at greater expense.

But such lawsuits are just the most overt sign of the burdens that 
lead harried lawyers in Michigan to talk openly about "McJustice" and 
in New York to make dark jokes about the plea bargain "assembly line."

"In my opinion, there should be hundreds of such motions or 
lawsuits," said Norman Lefstein, a professor at the Indiana 
University School of Law and an expert on criminal justice.

"I think the quality of public defense around the country is 
absolutely deteriorating," Mr. Lefstein said, asserting that unless 
states spent more on lawyers, the courts would force them to delay 
trials or, as has happened in a few cases, threaten to drop charges 
against unrepresented defendants.

The most immediate impact of the rushed justice, Mr. Lefstein and Mr. 
Carroll said, is that innocent defendants may feel pressure to plead 
guilty or may be wrongfully convicted -- which means the real 
offenders would be left untouched. Appeals claiming inadequate 
defense are very difficult to win, experts say.

In a 1963 decision, Gideon v. Wainwright, and subsequent cases, the 
United States Supreme Court ruled that poor criminal defendants are 
entitled to government-paid representation.

Here in the 11th Judicial Circuit of Florida, the defenders' office 
has had its budget cut by 12.6 percent in the last two years, said 
the elected chief defender, Bennett H. Brummer, and the workload has 
climbed by 29 percent over the last four years.

State Senator Victor D. Crist, chairman of the Criminal and Civil 
Justice Appropriations Committee, is a vocal critic of the Miami-Dade 
lawsuit, saying Mr. Brummer is "blowing things out of proportion."

Mr. Crist said the judicial system had faced smaller cuts than other 
parts of government. Although no defendant should be denied due 
process, he said, the courts, state's attorneys and public defenders 
must all tighten their belts. He said defenders' offices could 
increase efficiency by, for example, more carefully choosing which 
cases require depositions and other time-consuming actions. He said 
they should impose fees on clients, even if the sums were low or 
payment was delayed.

Legal defense is a right, Mr. Crist said, but "quality education is a 
right as well, and proper policing and safety in the community and 
maintaining standards in our prisons."

Mr. Brummer countered: "There's a race to the bottom here. As the 
loads worsen, the more experienced lawyers leave. But the cases 
continue to come in."

This puts defenders like Arthur J. Jones, 30, on a treadmill of 
frustration. In his Miami office on a recent morning, Mr. Jones 
looked over a printout listing 155 current clients. He spent a 
frantic morning in court, handling arraignments and plea bargains for 
23 offenders, a majority of whom he had never met before. His cases 
involve lesser felonies like cocaine possession, burglary and grand theft.

Mr. Jones, in between hushed conversations with clients in the 
hallway or the holding pen, said he wished he had more time to 
investigate cases and could go to trial more often, rather than 
accepting the police version of events and then, after a short 
discussion, helping his clients make a life-altering deal.

"I'd love to have time to visit the crime scene and do more legal 
research," Mr. Jones said.

In Missouri, the system has not added staff members in eight years, 
while the annual number of cases has grown by 12,000, said J. Marty 
Robinson, the director of the state's public defenders. "We're on the 
verge of collapse," he said.

Mr. Robinson appealed to an oversight commission, and beginning last 
month, defenders in more and more counties are declining misdemeanor 
cases and others that are unlikely to result in incarceration.

In Kentucky, the state public advocate, Ed Monahan, filed a lawsuit 
that would allow defenders to turn down cases they cannot ethically 
handle. "Since Gideon, I don't remember a time when the challenges to 
adequate representation have been so great," Mr. Monahan said. In 
Kentucky as elsewhere, though, some senior legislators say that 
public defenders must share the fiscal pain.

Similar lawsuits are pending, or offices have turned down clients 
this year, in Tennessee, Minnesota, Maryland and Arizona.

In New York City, financing from the city and state for criminal 
defense declined by $2.7 million this year, from a budget of just 
over $90 million. Meanwhile, the annual number of cases has climbed 
to 226,000, from 210,000 in 2006.

The city's Legal Aid Society is promoting a bill before the City 
Council that would set caps on the number of clients each lawyer 
could take on. But this would require a significant increase in funds 
at a time when both city and state face large budget shortfalls.

The hurried processing of even misdemeanor pleas can have serious 
consequences for the accused, noted Deborah Wright, president of the 
Association of Legal Aid attorneys, the union for New York defenders. 
Even if they get no jail time, such defendants still get a criminal 
conviction, which can affect immigration status and some public benefits.

Michigan requires counties to protect the indigent without providing 
state funds, resulting in large disparities. In some counties, those 
charged with misdemeanors are not even offered a lawyer; in others, 
the judge hires one for a flat fee, creating a conflict of interest 
and incentives to skimp on defense, according to a recent report by 
the National Legal Aid and Defender Association and the Michigan Bar 
Association. County and state officials acknowledge the problems, but 
counties say they cannot fix them without funds from a state 
government that is already reeling.

On the positive side, Mr. Carroll of the defender association said 
that Nevada, Louisiana and Montana had recently acted to shore up 
public defenders.

In Miami, as elsewhere, cases involving serious felony charges, 
potentially involving prison terms of decades or life, more often go 
to trial. Amy Weber, who has worked in the office for five years, 
handles about 50 serious felony cases at one time -- too many, she 
said. "The stakes are a lot higher and the cases involve lots of 
witnesses, lots more discovery," she said.

On one day in April, Ms. Weber had 13 cases set for trial, so she had 
to arrange for delays in all but one. That same day, James A. Simons, 
59, who was in jail on child pornography charges, was offered a plea: 
one year in prison. Ms. Weber said she simply had no time to discuss 
the offer with him, but that he would have accepted it and ended his case.

Not receiving an immediate agreement, prosecutors gathered more 
evidence and rescinded the one-year offer. Mr. Simons ultimately had 
to accept a five-year sentence. "My client suffered and it makes me 
feel terrible," Ms. Weber said. "You try to tell yourself you can 
only do what's possible."

Her colleague, Mr. Jones, left his $44,000-a-year job on Monday for 
private practice, saying he could not support his children and pay 
off school loans on that salary. A few weeks earlier, he had to tell 
a 53-year-old man who was charged with grand theft, for stealing a 
few locks from a Home Depot, that the state was offering five years 
because earlier convictions made him a "habitual offender." In a 
discussion in a holding pen, his client asked, "Won't they take one 
year?" Mr. Jones went back to the prosecutors, who calculated that 
the minimum sentence, under a scoring system here, would be 2.6 
years. But Mr. Jones had no time to check their math.

The man was already resigned to taking that sentence when the 
prosecutors discovered their calculations were mistaken: the correct 
minimum was 366 days.

"You see how easily accidents can happen?" Mr. Jones said. "He easily 
could have gotten three years instead of one." 
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