Thursday, December 25, 2008

The Solution To The Public Defender Crisis

The Miami Herald reported on Christmas that "poor people in Miami-Dade County waiting for their day in court on lower-level felony charges may have to wait much longer to face a judge -- or spend big bucks on a private attorney."

First of all Miami Herald, who are you kidding? Where have you been? No need to spend "big bucks" on a private attorney these days. Just check your mailbox post arrest - deals are everywhere on the defense of your liberty. Don't have the money to hire a good lawyer, you can hire a crappy one, cheap.

Now on to the real issue.

My old stomping grounds, the Miami-Dade Public Defender's Office, took a stand and filed a motion in court seeking to remove themselves from accepting new non-capital felonies. They won that motion, which is now on appeal. Read: "You'll handle as many cases as we give you public defenders and like it."

So now the office is going to re-prioritize their caseload, another move garnering criticism. Read: "You'll do what we tell you, and how we tell you to do it." The office is not going to be able to spend as much time on grand theft, drug possession and other third-degree felonies. Grand Theft, a stolen car. Didn't know that was even a crime in Miami anymore. Most jurors during jury selection say "I've never been a victim of a crime, just had a car stolen once."

The elected Public Defender, my old boss Bennett Brummer says "the situation deteriorates week by week."

Bennett goes on to boldly say that "people are entitled to a meaningful day in court, and right now I cannot say they are getting that."

Although most people are concerned about murder, rape, robbery and of course speeding, Miami-Dade's Public Defender's Office is assigned between 1,000 and 1,500 third-degree felonies a month. That's 60 percent of most public defenders' caseloads, says my old boss.

My old boss' priorities clash with the legislature, as at the bottom of his priority list are people charged with third-degree felonies who are not in custody. This includes the crimes of criminal mischief and driving with a revoked license, punishable in Florida by the wisdom of our legislature by up to five years in jail.

Bennett says his office's caseload means his staff no longer has the ability to "effectively investigate cases, meet with clients, locate and interview witnesses, take depositions, and otherwise prepare for trial in a timely manner."

Now what Bennett is unhappy about is this pesky language:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

That's the Sixth Amendment to the United States Constitution.

It's one annoying piece of law for state legislators.

Today, it wouldn't pass, and if it did, the State of Florida would find a way to exempt themselves from its effect.

Here's what Florida would like to see:

Assuming the legislature cannot get the votes to abolish the public defender system and create a system whereby "all estate planning attorneys and other non-criminal attorneys can escort the guilty defendants, pro-bono, to their arraignment for a "speedy and public" plea of guilty:

[1] Upon the appointment of the public defender, the assistant public defender accepting the appointment will immediately object and ask for further inquiry into the indigency of the guilty defendant, thus creating an immediate conflict of interest requiring the appointment of alternate (preferably a civil practitioner) counsel.

[2] Should the court deny the appeal of indigency by the public defender, the prosecutor, or arresting law enforcement officer (or any other law enforcement officer possessing any documentation, overheard conversation, or opinion) will proffer the evidence against the guilty defendant.

[3] The public defender will have the opportunity to ask 3 questions.

[4] Should the prosecutor have the "professional opinion" that the defendant is guilty, the defendant may still request a trial, however the public defender will be discharged at said hearing.

Problem solved.

And don't think there are those in government who don't think I have a fantastic idea.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit

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