Scoplaw

"You are truly an evil legal genius."

Or so claims a more Sr. attorney following an MJOA win on our latest trial case. 

This one was kind of interesting.  It featured a witness disclosed just before trial, a mid voir dire deposition, a most completely boneheaded sidebar objection by yours-truly, and a smorgasbord of strategy options.  Some of this has to stay under wraps of course, but basically the Mentally Stable Trial Partner (MSTP) and I put in a couple of 14 hour days.  We had to attend to our usual overwheming caseload, then process a lot of last minute info on the fly.  At the close of the first day of testimony, we still had three distinct but mutually exclusive legal strategies intact.  Basically, whatever evidenciary path we traveled would exclude certain arguments.  So, after consulting with the Kyacker, I bit the bullet and made a call on which avenue we should go down.  Hours of prep work got thrown in the trash.  MSTP grinned and bore it, and we went after a new argument.

I thought it was kind of fun and audacious and stressful, given that I had no caselaw on the issue - no FL state cases, no Federal cases interpreting FL law.  All I had was a close reading of a FL statute.  So MSTP and I made the argument and, because my judge actually thinks about issues, we won. 

Actually, it was kind of impressive.  We had three grounds for our motion.  He ruled correctly on the first one (we should have lost it), he then ruled correctly on the second one (we should have lost it - even though the state didn't actually give the correct reason for why we should have lost it), he then ruled correctly on my somewhat original argument.  And by somewhat original, I just mean that no one who lost at trial on that charge ever apparently preserved my same argument and appealed it.

My client was facing a 10 year minimum mandatory sentence because he was enhanced.  So I'm kind of stoked.  Except I'm completely exhausted.  Stokausted?  Actually I have a lot of residual trial energy which might keep me up and going, but I feel kind of dull.

Now drinking a beer and singing along to the Pouges (A Rainy Night in Soho on the top of the playlist) as I try to keep all things put off for the past few days afloat.  I'm so looking forward to my next open day. 

Well, that was interesting.

Got pulled into a trial, last minute, as the second chair when another APD was not able to be there.  I was tagged with the Voir Dire, which, of course, I love to do.  Except it was on a life felony, which was kinda, you know, stressful.  However, I liked the jury we ended up with.

I'll spare y'all the blow by blow of the pre trial issues.  The trial case resolved today with a five year global plea on the client's two open cases which contained seven charges total.  Two had a maximum life sentence, some had 10 year min mans (minimum mandatory sentencing provisions), some had 3 year min mans.

It's always the client's decision as how they want to resolve their case.  As, of course it should be.  After all, they (and their loved ones) are the people most affected by the decision to plea a case or take it to trial.  So I'm not disappointed *in* my client's choice to plea, but speaking as "just" a trial attorney, I so very much wanted to try this case.  I think my instincts were correct because I got to talk to the jury in the hallway - turns out the two people I was unsure of would have come down on our side, given the bare facts of what we expected would come out at trial.  However, there was that other case. . .

I expect the usual reward for a job well done.  Which is why I may go into hiding soon. 

Mmmm. Greasy.

I feel vaguely guilty about the lack of blogging.  But only vaguely.

Felonies continues apace, with my caseload vacillating as cases come in and close out.  One of the odd quirks about my courtroom is that I'm the only "C" felony attorney.  (C felonies correspond to 3rd degree felonies, but I also have a handful of 2nd degree and 1st degree cases - mostly thefts and drug cases.)  Usually, the C cases are spread amongst C attorneys, who use more experienced training attorneys as their co-counsel and trial partners on the case.  Because we're so short handed though, some of the B Felony attorneys, the A Felony attorneys and the major crimes attorneys have taken C cases in my courtroom.  That means I'm pretty much their de facto trial partners.  So instead of having half the C cases in the courtroom assigned to another C, with whom I would not go, those cases should usually involve me as a second chair.  Which, needless to say, from a personal development point of view, is pretty awesome.  In a systemic resources sense, it's rather silly to take someone with 31 years trial experience, someone who has handled murders, and put them on possession of cocaine (personal use) C felonies.  But the office has no choice - and I at least get to pick the brains of some fine attorneys while the system is crumbling.  So that's one bright note. 

A darker note is that a lot of the programs (e.g., Mental Health, Addictions) that used to help divert people in some ways are losing their funding.  So we're in a Bad Economy =s More Crimes + Less Resources spiral. 

In terms of practice, Felonies is like much of what I've done before, but writ larger.  Had I not done any of my prior three stops (Jail Division, regular County Court division, Juvenile division) I don't think I'd be as remotely well prepared for what I'm now experiencing. 

Everyone is looking to April, when we can expect some indication as to whether or not our caseloads are going to drop down to manageable levels. 

Until then we just preserve the record and do the best we can.

***

In non PD news, I had, in the past few weeks, 3 groups of people planning to visit me.  They all canceled for various reasons.  Boo!  I very much enjoy playing tour guide when I have the time to do it right.  But alls well that ends well, as a friend of a friend is going to visit, and I have my vacation days still open from one of the other canceled visits.  I feel like I need to develop new Miami haunts.  The mission is to show the visitor "real Miami" as the friend of a friend is thinking of maybe moving down.  I know what my real Miami is - I wonder if it's anyone elses.

In other news, I got all domesticky this weekend, which is good, because when I'm overwhelmed with cases, cleaning the kitchen sink can be a stretch, let alone the bathroom.  I have not lived this slovenly in years.  Perhaps there's fun blogging to be had with that.  Or perhaps not.  So much of my time is eaten up by the "must do" stuff.  Some of that must do stuff is fun and engaging, like motorcycle and bicycle maintenance.  Some, like cleaning the fridge, is not.  I think I've just let the nots build up recently.

But speaking of motorcycle maintence, I finally, after a two day long epic struggle resolved with a two foot cheater extension for the ratchet, took off the rear wheel of Bess to lube her splines.  While the splines sorely needed it, there was no actual damage to either of the drive shaft couplings, which is great.  If that one piece had failed, it's an $800 rebuild or so.  As usual, it's the power of the internet that saves my ass.  In this case, the friendly guys who frequent the web forum focused on my now-not-longer-produced bike, the Kawasaki Vulcan 750.  Like the Volvo 200 car series, the Vulcan is kinda funky looking but basically bulletproof.  As the man once said, "She might not look like much kid, but she's got it where it counts."  The few troubles are well documented and a litte preventative maintainence goes a long long way.  I have only a few things left to do.  Next project is putting in a some fuses to protect the stator.  I love it when people share knowledge just because they can. 

Bess's naked ass:  (Don't blush!)

All Good Things Come to an End

In this case, my stint in the county court.  I was transferred to the Juvenile court division of my office, and my first day will be on Monday.

In attempts to figure out "what's going on" in most large organizations, you usually live off rumor and innuendo, grounded in some extrapolation off the way things "are normally done."  Here, you get a closed door meeting with the top officers about what's going on with your career - where you are going and why.  While there's never complete certainty, nor complete transparency (understandably, given the confidences that must be kept), I remain impressed with how the office handles these type of things - both with their frankness and the planning in husbanding our increasingly limited resources (i.e., us) in the face of increasingly brutal caseloads.

Juvie is going to be an adjustment. The main difference will be that I will have no juries.  I will be handing some felony cases and my clients will be teenagers.  So in some ways it will be more like my DC clinical experiences than my first year in Couny was.  I'm going to miss my juries though.  County court is just a fantastic place to work, and every day something unique, funny, and challenging happens. 

While I'm eager for the new challenges that come from moving to a new court (in many ways, it will be like moving to a strange city), I'm somewhat sad to leave my clients, my judges, my trial partners, my friends in the office, and all those people whom I've just come to know, on some level, over the course of my time here - corrections officers, clerks, court reporters, baliffs, psychologists, translators, social workers - you name 'em.  On the other hand, I'm really not leaving some of them behind, and I'll be re-united with some of my old trial partners who have already cycled over to the Juvenile division.

I had a nice farewell lunch down by the river in one of our PD haunts, and also got some props during our final office meeting.  In the course of these send-offs, I was surprised to learn two things, 1) that in the past 5 years, I apparently have the highest number of trials for any PD moving through the county office, 2) the current batch of State Attorneys have given me the nickname of "The Cleaner."  I'm proud of both for different reasons - but not in the least that they both reflect my general policy of talking softly but carrying a big stick.  I'd like to think it's helped a number of my clients, but even so, looking back over the year I have regrets.  I suppose hindsight is 20-20, and then there's the argument that perfection (for most of us) indicates a caution which produces its own often hidden costs and casualties.  However, while I've forgotten some of the trials that I've won, I remember each and every trial loss I've had.  Some were out of my hands from the get go, others I'd handle differently, now that I have more experience. Still, they're there in my brain the way the victories are not. 

The one regret I don't have, the one that makes it all right, is that I've never "forced" a client to take a plea they didn't want, nor have I ever "forced" someone to go into a trial (no matter how promising or how doomed it looked).  (I use the quotes because of course one must objectively assess the clients cases and sometimes say, "The bad points are A,B,C,D,E and F.  The good point is that they didn't paper this as a felony."  Or vice versa.)  

In the end though, this really should be an egoless job, or, more properly, your ego should be made to serve good ends.  You fight for your clients on so many different levels, trying to redeem something for them;  even if the legal case is hopeless, the people who are accused never are.    

Ruling on PD's Excessive Caseloads

The Circuit court decision addressing the Miami Public Defender's motion to appoint other counsel in unappointed non-capital felony cases just came down.  I'll refrain from a detailed analysis except to note (out of strictly personal curiosity, not official office policy) that one cannot cherry pick when someone is entitled to representation (or perhaps more properly, what pieces of representation someone is entitled to) once the right attaches.  Is it ethically permissible to accept appointments for bond hearing purposes knowing that one will be withdrawing from those cases immediately afterwards?  Not something I have the answer to this morning.

IN THE CIRCUIT COURT OF THE ELEVENTH  JUDICIAL CIRCUIT, IN AND FOR MIAMI‑DADE COUNTY, FLORIDA

IN RE: REASSIGNMENT AND                              CRIMINAL DIVISION

CONSOLIDATION OF PUBLIC                           

DEFENDER’S MOTIONS TO APPOINT               JUDGE: Stanford Blake

OTHER COUNSEL IN UNAPPOINTED               SECTION: CF 61

NONCAPITAL FELONY CASES                          

                                                                                                                                                            CASE NO.: 08-1

______________________________________/       ADMINIADMINISTRATIVE ORDER NO.: 08-14

 

THE STATE OF FLORIDA

            Plaintiff, 

v.

 

HAROLD LOVERIDGE,                                         Case No. F08-14858   (CF01)

GANTT ADAMS,                                                      Case No. F08-12840   (CF02)

TEDRICK MCINTYRE,                                           Case No. F08-5820A (CF03)

LONNIE CARSWELL                                              Case No. F08-8919     (CF04)

REMIGIO CARRILLO,                                            Case No. F08-17339   (CF05)

RAUL RIVERO,                                                       Case No. F08-13758   (CF06)

PABEL MIRANDA,                                                  Case No. F08-16093   (CF07)

WILLIE KEELS,                                                       Case No. F08-22408   (CF08)

EDWARD SHOEGREEN,                                        Case No. F08-18074   (CF09)

ALEXANDER ROBERTSON,                                 Case No. F08-2462     (CF10)

PATRICIA ANDUJAR,                                            Case No. F08-5109     (CF11)

SILVINO MEDEROS                                                           Case No. F08-1872     (CF12)

JOHN THREATS,                                                      Case No. F08-17830   (CF13)

JOEL CHARLES,                                                      Case No. F08-17334   (CF14)

OSCAR MUNOZ,                                                     Case No. F08-2314     (CF15)

FRANCISCO FRAGA-MARTINEZ,                       Case No. F08-10548   (CF16)

BONNIE LOWERY,                                                             Case No. F08-19720   (CF17)

JED GRANT,                                                             Case No. F08-16823   (CF18)

JOSE AROCHA,                                                       Case No. F08-7374     (CF19)

NYLUS STANTON,                                                  Case No. F08-11423   (CF20)

JEFFREY JAMES,                                                     Case No. F08-13649   (CF21)

 

            Defendants.

____________________________/

 

ORDER GRANTING IN PART AND DENYING IN PART

PUBLIC DEFENDER’S MOTION TO APPOINT OTHER COUNSEL IN UNAPPOINTED NONCAPITAL FELONY CASES

 

THIS CAUSE came before the Honorable Stanford Blake, Administrative Judge, Criminal Division, of the Eleventh Judicial Circuit Court, at the Richard E. Gerstein Justice Building,1351 NW 12^th Street, Courtroom 2-4, Miami, FL  33125.  The matter was heard Wednesday, July 30, 2008, and Thursday, July 31, 2008, on the Public Defender’s “Motion to Appoint Other Counsel in Unappointed Noncapital Felony cases.”  Post hearing memoranda was provided to the Court by PD-11 and SAO-11 on August 11, 2008. 

            The Public Defender of the Eleventh Judicial Circuit (PD-11) filed their motion and a “Certificate of Conflict of Interest,” in felony cases. This Court, through Administrative Order No. 08-14 by Chief Judge Joseph P. Farina, reassigned and consolidated these motions and all subsequent motions containing identical issues for all purposes necessary to effect the prompt disposition of cases and control the docket in the Eleventh Judicial Circuit.

            PD-11 asserts that accepting appointments to noncapital felony cases at this time would create conflicts of interest with previously appointed clients and newly appointed clients in cases other than noncapital felony cases. PD-11 argues that the underfunding of the Public Defender’s Office has created excessive caseloads such that PD-11 cannot ethically or legally accept additional noncapital felony cases at this time. In response, the State Attorney’s Office (SA0-11) argues that that the granting of this motion will create chaos in the criminal justice system and lead to the dismissal of serious and violent felony cases. SAO-11 opposes the method that PD-11 has chosen to air its grievances, but does not dispute the fact that PD-11 has felt a severe reduction in its budget, nor the fact that PD-11’s concerns pertaining to underfunding are based on the Public Defender’s sincere convictions.

I

            SAO-11 contends it has a right and a duty to respond to PD-11’s motion. It bases this right on Section 27.02, Fla. Stat., which states that “[t]he state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, motions, civil or criminal, in which the state is a party, except as provided in chapters 39, 984, and 985.” Although SAO-11 relies on Section 27.02, Fla. Stat., to support its argument of standing as a matter of right, case and statutory law indicate that this section is inapplicable to situations involving the public defender’s certification of conflict of interest. Case law supports the view that the court has the discretion to grant requests to be heard on an issue involving the public defender’s request to appoint other counsel.  Escambia County  v. Behr, 384 So. 2d 147, 150 (Fla. 1980)  (where the Florida Supreme Court held that the court does not have to allow the county an opportunity to be heard before appointing private counsel in lieu of the public defender.); In re Order on Prosecution of Appeals by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1134 ( 1990).

            As further guidance in this matter, Section 27.5303(a), Fla. Stat., titled “Public Defenders; criminal conflict and civil regional counsel; conflict of interest,” states that the court “shall review” the adequacy of the public defender's representations regarding a conflict of interest without requiring the disclosure of any confidential communications. In addition, the court “may inquire or conduct a hearing” into alleged conflict. Id.  Under the plain meaning of the statute, the use of the word “may” renders an inquiry or hearing of the court entirely discretionary.  State v. Meyers, 708 So. 2d 661, 663 (Fla. 3d DCA 1998); City of Miami v.

Save Brickell Ave., Inc.

, 426 So. 2d 1100, 1105 (Fla. 3d DCA 1983).  It follows that that the nature and manner of a discretionary hearing likewise rests within the sound discretion of the court.  Thus, this court finds that the State Attorney does not have standing as a matter of right.

            However, the State Attorney’s role in the community not only includes prosecuting those charged with committing crimes, but also includes specific duties related to the administration of justice and ensuring the constitutional rights of victims of crimes are protected. In an effort to safeguard these concerns, this Court granted SAO-11’s request to participate in the proceedings as an “amicus curiae” or a friend of the court. The Court allowed SAO-11 great latitude in its participation in this hearing.  SAO-11 responded to all PD-11’s pleadings and documentary evidence, cross-examined PD-11’s witnesses, and presented its own witness in opposition of the evidence presented by PD-11’s witnesses.

II

            Section 27.51, Fla. Stat., titled “ Duties of public defenders” reads in pertinent part:

(1) The public defender shall represent, without additional compensation, any person determined to be indigent under section 27.52 and:

                        (a) under arrest for, or charged with, a felony.

            While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused.  Public defenders, like all attorneys, are bound by professional ethical obligations. See State v. Kadivar, 460 So. 2d 391, 392 (Fla. 4th DCA 1994). The Rules of Professional Conduct include, among other responsibilities, that a lawyer provide competent representation to a client, act with reasonable diligence and promptness in representing a client, and decline or terminate representation if the representation will result in a violation of the rules. R. Regulating

Fla. Bar 4-1.1,4-1.3,4-1.16. Most importantly here, the rule on conflict of interest requires an attorney to decline a case if there is substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client. R. Regulating Fla. Bar 4-1.7(a)(2).

            The Public Defender, Bennett Brummer, as manager and supervisor of other lawyers, has a duty to ensure that all lawyers in his office conform to the Rules of Professional Conduct. R. Regulating Fla Bar 4-5.1. The evidence presented by PD-11 at the two (2) day hearing on these motions showed that the assistant public defenders of the Eleventh Judicial Circuit function under extreme and excessive caseloads.

^[1]

Although there is dispute regarding the method in which PD-11 calculated its annual noncapital felony caseload numbers, the testimony and evidence presented at the hearing indicated that the caseload of the felony public defenders in the Eleventh Judicial Circuit, under any recognized standard, far exceeds any recognized standard for the maximum number of felony cases a criminal defense attorney should handle annually.

See National Advisory Commission on Criminal Justice Standards and Goals limit of 150 cases; Florida Governor’s Commission Standard limit of 100 cases; Florida Public Defender’s Association limit of 200 cases; and Florida Bench and Bar’s limit of 200 cases. 

            More importantly, the evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused.  At the request of this Court, PD-11 provided a chart, referred to as the “Judge Blake” document, which lists the total number of felony appointments for fiscal year 2007-08. This chart indicates the number of cases that were pled at arraignment, no actioned, bound down to misdemeanors, and referred to pretrial intervention for FY 2007-08. It also shows the number of conflict cases and cases where private counsel substituted in as attorney of record. Although this Court is aware that many of these cases require minimal preparation, the Court recognizes that the public defender’s office has often performed work, including investigatory functions, on these cases prior to the cases being resolved. Thus, even the numbers reflected in the “Judge Blake” document indicate that PD-11’s active caseload is extremely high.

             The record further shows that the assistant public defenders assigned to handle “A and B” felony cases (life, 1st and 2d degree) are now being appointed to “C ” felony cases (3d degree). These “C” cases encompass approximately sixty percent (60%) of all felony filings. A supervising attorney for PD-11, Stephen Kramer, testified that all supervising attorneys are handling “C” felony cases to the detriment of their ability to handle capital cases and “A and B” felony cases. Assistant Public Defender Amy Weber, an “A” felony attorney, testified that she is in court two out of three weeks because she also has “C” felony cases. From the testimony and evidence presented, “C’ felony cases are clogging the system and negatively impacting PD-11’s felony attorneys’ caseload.

            Additionally, there is no dispute that PD-11’s trial budget has been cut by 9.2% in the past two fiscal years. With the additional holdbacks imposed for Fiscal Year 2008-09, PD-11 is operating under a 12.6 % budget reduction. As a result of the reduced budget, the number of noncapital felony public defenders has declined in the last two fiscal years, and this downward trend is continuing.   PD-11 is unable to raise salaries, and a number of assistant public defenders hold second jobs on nights and weekends simply to make ends meet. As noted in Rory Stein’s testimony, General Counsel for PD-11, two main reasons for leaving PD-11 were financial (low salaries and lack of raises) and burnout from the excessive workload.  At the same time that resources have dwindled, the number of noncapital felony cases assigned to PD-11 has explosively increased by approximately 29% since Fiscal Year 2003-04.            

            In light of the foregoing, the evidence clearly establishes that PD-11 is in need of relief sufficient to ensure that the assistant public defenders are able to comply with the Florida Rules of Professional Conduct and carry out their constitutional duties.

III

            A fundamental rule, strongly grounded in public policy, is that a public body is presumed correct when exercising its discretionary powers within the orbit of laws affecting them. City of Miami Beach v. Cummings, 266 SO. 2d 122, 125 (Fla. 3d DCA 1972); see In Re Certification of Conflict in Motions to Withdraw filed by Public Defender of the Tenth Judicial Circuit, 636 So. 2d 18, 22 (Fla.1994). The court should not “attempt to interfere in the management of the Public Defender’s office, or attempt to instruct the Public Defender how best to conduct his affairs.”  In Re Certification of Conflict,636 So. 2d at 22. Accordingly, the court’s inquiry is limited to an objective assessment of the Public Defender’s practices sufficient to confirm that a factual basis exists for the Public Defender’s motions. Id.

             SAO-11 raises several different concerns with PD-11’s motions and certificate of conflicts.  First, SAO-11 questions  PD-11’s method of collecting the data and caseload numbers for its caseload statistics.  SAO-11 contests PD-11’s reliance on state and national methods for defining and counting cases beginning with the appointment of counsel after arrest. Yet, SAO-11 has failed to present any alternative national or

Florida caseload standard used by professionals in the field.

            SAO-11 further argues that PD-11 should seek relief, as other Public Defenders have done, through non-appointment to misdemeanor cases. However, SAO-11 failed to show that the situation in those circuits are similar to the situation in this circuit, or that the proposed alternative would be effective or feasible in this circuit.  Moreover, the Public Defender, Bennett Brummer, testified that he filed his certificates of conflict in the felony divisions “where we had our highest concentration of dollars and workload in the office, so as to make an impact on the workload of the office.” He also testified that refusing misdemeanors would result in closing the County Court division. Such a move would effectively destroy PD-11’s “farm system” which enables inexperienced attorneys to gain the experience necessary to accept and defend felony cases.

            SAO-11 criticizes PD-11’s method for airing its grievances with the legislature and not sitting down and working things out.^[2]  However, the record is replete with letters from PD-11 to the legislature, at different times, advising it of PD-11’s excessive workload history. Yet, after the shift in funding in 2004 due to the implementation of Article V, Revision 7, the legislature appropriated funds for only 52 of the 82 county-funded positions for PD-11’s overload special assistant public defenders.  

            The testimony and evidence presented at the hearing demonstrates that the certifications of conflict are based on fact. Accordingly, this Court finds that a factual basis exits for PD-11’s motion to appoint other counsel in unappointed noncapital felony cases.

IV

            This Court concludes that the testimonial, documentary, and opinion evidence shows that PD-11’s caseloads are excessive by any reasonable standard. As a result, its attorneys are able to provide, at best, minimally competent representation in their assigned cases. Further, it is clear that future appointments to noncapital felony cases will create a conflict of interest in the cases presently handled by PD-11. All the same, it is incumbent upon the court to preserve order in the criminal justice system to ensure the safety of this community. Accordingly, this Court finds that the proper course to be followed in such a situation is for PD-11 to decline to accept appointments to “C” felony cases until such time as this Court determines that PD-11 is able to resume its constitutional duties with respect to these cases. PD-11 must continue to perform its full duties in all “A” and “B” felony cases, and is required to continue its bond hearing duties for all cases on a limited basis only. Further, PD-11’s county-funded early representation unit (ERU) is to continue with their customary responsibilities up to the time of arraignment. At arraignment, the Office of Criminal Conflict and Civil Regional Counsel for the Third District (RRC-3) is to accept all “C” felony cases for indigent persons. If  RRC-3 determines that it has a conflict of interest, it is their responsibility to separately move to withdraw and ask the court to appoint other counsel.^[3] This matter will be set for a recurring 60 day review with weekly “Weed Attorney Assignment Sheets ”^[4] to be submitted to the Court to allow it to monitor the status of PD-11’s caseload. This order shall take effect on Monday, September 15, 2008.  The first review of this Order will be held on Friday, November 14, 2008 at 9:00 am before this Court.

 

Done and Ordered as of September 3, 2008.

 

_______________________________

STANFORD BLAKE

ADMINISTRATIVE JUDGE

CRIMINAL DIVISION

 ELEVENTH JUDICIAL CIRCUIT

CC:      All Parties

---

^[1] PD-11requested this Court to take judicial notice of the Florida Bar News article, August 13, 2008 discussing cutbacks for funding of the criminal justice system.  Arthur “Buddy” Jacobs, Esq., co-counsel for amicus curiae in this case, was quoted as stating that 710 assistant state attorney’s positions have been eliminated in the past year around the State, and the 4% budget cut this year will lead to the loss of another 233 prosecutors.  From this Court’s daily perspective, the assistant state attorney’s in the Eleventh Judicial Circuit also have extreme caseloads.  If the budgetary problems facing the criminal justice system are not addressed by the legislature, the hard working prosecutors may unwittingly find themselves in violation of the Florida Rules of Professional Conduct that governs every lawyer in the State of

Florida

.   With some assistant state attorneys handling up to 300 cases in the Eleventh Judicial Circuit, in spite of hard work and dedication by these attorneys, it is not a stretch to realize that some victims of crimes of  Miami Dade County are not receiving the attention to their case they deserve.  At some point in time, the State Attorney’s Office, due to lack of funding, excessive caseloads and the loss of attorneys, may have to decide what cases they can prosecute and which ones they will be unable to handle.

 

^[2]This Court strongly urges SAO-11 and PD-11 to meet and consider what other options may assist during this budget crisis.  All sides must cooperate on a daily basis in the 23 divisions in trying to amicably resolve cases while being realistic about the strength of each of their positions.  Since SAO-11 decides on which cases are filed after arrest, attorneys in the pre-filing division have to be very diligent in their filing decisions. 

^[3] It should be noted that the Office of Criminal Conflict and Civil Regional Counsel (RRC-3) did not request to participate in the court proceedings as an amicus curiae. However, RRC-3 was noticed in the certificate of service and provided with all legal filings in this matter. Additionally, representatives of RRC-3 were present at all hearings. 

^[4] The “Weed Attorney Assignment Sheets,” authored by C. David Weed, Executive Assistant Public Defender, reveals what each assistant public defender’s caseload is on a given day.   

Judicium Interruptus

These last minute Nolle Prossequi are just killing me. . .and I had the double-barreled testimonial hearsay exclusion arguments (State and Federal Constitution) locked and loaded.  I don't even think the state knew - they just knew I wanted to go.  And I so did.  Grrr.

I need to eat less junk food and get back on the bike.  (Really, I'm not sure how this paragraph connects with the first.  Suggestions are welcome.)

The Samely Different (a post in which the author of the blog touches on past, present, and future, in his usual rambling quasi-autobiographical way.)

Well, some email has rolled in, given the tenor of the next-to-last post.  So, I thought I’d sit down and try to see what’s changed with me in the past year or so.

First though, I have some BIG news – I’ll be shipped out of my old division to a new one soon. That means a new judge, new clients, new types of cases (basically the old crimes cases with the addition of traffic cases), and a new trial partner(s).

Most important, my clients will be OUT OF JAIL!!! That changes everything – for example, a defense continuance no longer means several weeks of my client eating bad food, wearing an orange jumpsuit, being crowed into unsanitary, insanely loud, constantly lit, and freezing concrete and metal surroundings, while being separated from his family, simply so his attorney can get something crucial squared away.

Yea! (that deserves its own paragraph.)

In other changes, my Mental Health client load will be nearly non-existent by comparison, giving me more time to focus on that. I’ll be actually in the office (instead of in court) during regular business hours. So I’ll be taking more depos, and doing a different kind of investigatory work. I also expect my motions practice to pick up, which could be interesting since that used to be one of my strengths before I began work in my “they’re-in-jail, just-try-it” division. My workload is probably also going to drop, in the sense that I won’t be pulling 7am to 9:30pm days (as I did this past Thursday).

Outside of the court room, this means I’ll be able to be more in Miami itself (during daylight hours) and take care of some personal things that have been on the back burner during my stint in my soon-to-be-old division. (No more vacation days burned on getting my student loans in order!)

Or so rumor has it. I haven’t gotten official word as I was in trial (post below) when the news was announced.

I’ll be sad to leave my current courtroom(s) and my trial partners. Given the staffing travails we’ve undergone, what with people leaving and being sick and coming on to be trained, it’s sort of the worst time to leave, from my selfish perspective. Since we’re just now cruising at full strength I want to keep the pressure on the state (This has resulted in 4 jury trials in 2 weeks, to say nothing of the 2 cases the state nolle prossed last-minute before picking a jury, with our client dressed in a suit and sitting at our table!)

However, its also perhaps the best time to be moved, since things are working well. I told my mom fighting the state was like keeping your hands around the closed jaws of a snake – you don’t want to let go until you’re sure the next person has a firm grip.

I have *every* confidence in my trial partners – I just wish we had more time to develop even more strategies together, since we have changed how we found our division in pretty significant ways.  In fact, just today, I was reviewing some old materials and came across a note written by one of my partners that said “Go on X, not Y.” I had asked him to research a last minute issue that would determine how we’d attack one particular argument the state was going to be making. We had only the most minor of opportunities to discuss it (trials are fluid things). I was busy with other trial issues, so he just handed me the note, right before the issue was ripe. And so I stood up and did my thing, fully trusting that my partner had framed the issue correctly and was going to be able to back me up on it. He had, and we won pretty convincingly. It takes awhile for me to develop that level of trust with people, and I’m going to miss having both my partners at my side.    

I’ll only be across the hallway though, so I’ll be able to pitch in as required, certainly with the daily heavy lifting if someone’s sick or ill.   

I’ll also be sad to leave my judges – the 3 regular judges I’ve had, plus the recurring covering judges we get from time to time. I felt I could work with all of them – although each of them has their own unique style, and none would ever mistake one for the others. 

I’m wondering how different things will be with my new judge. I know that the protocols of that courtroom are different (more formal), which might even be something of a welcome change. I’m getting very colloquial in my practice – I almost addressed a judge as “Judge” the other day, instead of “Your Honor”. Seems like a small thing I know, but it’s emblematic of what I don’t always think is an appropriate relaxation on my part. I’ve heard very good things about the new judge, and already have some expectations about what kinds of things I’ll be able to do in that particular courtroom (as opposed to being in *any* courtroom with less clients, daily drama, and more time to get truly creative with my practice).

I think the funniest thing is the new judge’s demeanor on the bench, which has drawn both praise and criticism from the various and sundry defendants, witnesses, courtroom personnel, advocates and attorneys. I told my mom the good and the bad on the phone yesterday and she started laughing, “But Scoplaw, that’s YOU!” And not-quite-sadly, I had to agree. So it should be an interesting ride, given that I don’t always respond to myself well.

**

As far as what’s changed with me in the past year, I think there are a number of lines anyone can draw in their life – significant events which change the daily tenor of what we do, or even, how we do. But such lines are never nearly as clean as we subsequently pretend them to be. So with that in mind, I’m drawing a line about 9 months ago, although what happened just before and just after make it a broad fuzzy line. 

About 9 months ago, I moved to FL – not knowing more than two people in the entire state south of Orlando. That whole surrounding period, from May to August, was pretty momentous: the final dissolution of what had been a very important relationship, graduating law school, leaving DC (which on some level I still love, and with which I had a good life), studying for the bar, taking that exam, taking on new and very important responsibilities in a strange place, wherein I didn’t know the local lingo and customs. All in all, it was a story about moving from the familiar to the unfamiliar, about relying on what I knew, and trying to make new things happen.

Basically, as soon as I arrived, my work took over my life. However, even early on, I was able to get a lot of things done that I wanted to, and the degree to which my work has impacted my free time has only changed for the better, albeit slowly. So, yes, I still do the very Scoplawic hunting through junkstores, visiting libraries, watching movies, reading books, writing poetry, buying and cooking food, building and riding bikes, socializing with interesting people – but all these not as much, and all these somewhat more desperately snatched from the mundanities of dishes and laundry and vacuuming and getting suits and shoes and self ready for court each day. However, a good deal of “moving to a new place/starting a new profession” things are simply done by now – no more bar exam/character and fitness review to eat up my weekends, no more trying to find adequate local suppliers of avocados and bicycle parts.

What I haven’t been able to do is take on any significant new learning (I had fantasizes of resuscitating my Spanish), although I have picked up a few things here and there, as I’m wont to. I’m also not sure I’ve had enough reflective time to really come to grips with all the changes that happened in my life in that last bit in DC phase. I know I have, and that it’s mostly done. I’m not sure it’s entirely done or not. Which is part of the problem of not having enough reflective time - these things have to be tracked, not thought about once or twice.

The really significant learning/growth has come mostly from courtroom/trial experience, as well as from rapidly moving through a lot of clients.

The office down here was tremendous in as far as it gave me both training and discretion to do what I thought I could for my clients. After an August shadowing a truly exceptional felony attorney, and a crash course (self-taught) in FL crim law/procedure, I was moved into the most frenetic division in county court. At first the workload was overwhelming, as was the feeling that I just didn’t know what the hell I was doing. I was able to keep going though, largely because I knew that Law School, whatever it was, wasn’t interested in teaching and drilling the skills you need to succeed in a courtroom. Of course, Law School, especially the clinic, was invaluable in actually getting me ready for the job as well – just not always in the most obvious ways.  I have to say there’s no way in hell I’d have done the job well without my clinical experience. The summer internships were crucial, but the clinic gave me a way to personally contextualize the abstractions of the law into actual client representation; it taught me about practice and set me in motion.

So, after a relatively slow start in terms of trials, I’ve been able to get my feet under me and get some stuff done. I have my favorite moments (and some never to be repeated arguments) and on the whole, I think it’s been a tremendously great experience, no matter how much I whine about FL as a cultural wasteland.

I’m *much* more comfortable in a courtroom, even in front of a (literally) red-faced and shouting judge. I feel I have some grasp of both trail strategy and technique. I’m at least becoming somewhat acquainted with the rules of evidence in a practical way. (There’s an analogy to be made between literature academics in relation to poets, and appellate lawyers/law academics in relation to trial attorneys. You tend to use the same rules/information differently, and one seldom appreciates the other’s efforts.)

All in all, in the past 9 months, I’ve been to jury trial about 16 times? plus another 4 or so dispositive motions where witnesses were called and crossed. We’ve had probably twice that number of near misses (cases we’re completely ready on), ranging from nolle prosses early on during trial day, to (more rarely) ones given in the middle of actually picking the small panel. If we considered the number of cases the state declared ready on at the day of trial, which we then discovered had fatal flaws, turned over our cards, and got the state to drop the charges, I’d guess it would be about 60 or so. I’d also have to guess we’ve had well over 10 motions to dismiss (no witnesses called) granted by the judges as well. (Oddly, I don’t remember the wins all that well. I do remember each Guilty verdict quite clearly though – there are 4 of them, 3 single counts and one split.)

The backdrop to this is about 1500 clients (just me personally, not my division) the vast vast majority of whom are offered and take credit-time-served sentences, with or without a formal finding of adjudication, at one point or another.

I’m not sure I could have done this in any other office in the country. I mean, anecdotally, I think my experience has been unusual. It’s certainly subjectively recent to me in odd ways. Someone asked me (questionnaire) what my profession was. I said “attorney” – but it felt kind of weird to say, like I was still pretending at it or something.

Anyway you slice it, it’s a tremendous amount of courtroom experience to digest – and I’m sure I haven’t done so as well as I ideally might. And that, in effect, is what’s been largely occupying my brain for the past nine months.  There are a lot of things I haven’t yet done, but I think I’ve gotten a tremendous exposure to trial practice, plus a sampling of the more random scenarios and unusual hearings.

So, I’m largely the same, everything’s still there. I’m just working with a different focus at a different level of intensity. I may not have as much time to write long posts about poetics, but for now I must leave that to others, without very much regret.

Or not, depending on what happens with the new division.   

Luck is the Residue of Design

Sometimes you think you'll have good arguments - sometimes those arguments get shot down one after another after another.  So it pays to lay some arguments here and there and then touch on them in close, because you never know what a jury might do.

Tonight, after a grueling 8 hours of picking jurors, crossing cops, and fighting over evidentiary issues, we were left with not much of a case at all.  And the jury went out and out and out and out and announced they were hung - no decision would be reached on the case.  (For us, that's a victory - our client isn't hurt and we make the state try their case again.) 

The thing is they hung on one of those small throw off phrases that you just say in your close.  We spent no time developing it in trial, and just pointed out it's lack in (literally) a four word phrase. 

Hell yeah. 

Hit by the Trial/Good News Truck

That'll teach me to be frivolous in my posting.  (Snort.) 

In any event, after trial on Mon./Tues., I really didn't expect anything to go the rest of the week.  Which means, of course, that I ended up in trial on Wed.  That one went as badly as it possibly could have gone.  We went down swinging in an appeal rich environment.  I'd go into details, but for the appeals issues.  The client got credit-time-served though, so we can notch that one up as a no-harm-no-foul loss, albeit a frustrating one, partially because the client was so upset at the verdict (as opposed to the sentence). 

Thursday featured yet another trial, but this one I sat out, due to some medical testing/prep stuff that I had to do.  I mean, I'll do a lot of crazy things, but second-chairing a trial with short notice and a 48hr liquid diet is not one of them.  However, I had told this particular client I would be there for him, so I sat in the gallery, sipping sugar-water, fetching and hi-lighting caselaw, and talking with the client when the jury wasn't there.  Technically I wasn't "on" the trial, but for all intents and purposes I was, even in my glassy and sluggish state.  I have no doubt that sitting was the right thing to do, given just how crazy-good the Lioness's voir dire was.  I took notes.

(Oddly, had a different client gone to trial, I'd still probably have suited up for that one, since I'd had it completely prepped and knew those particular arguments inside out.  It was basically a repeat of a case I'd done twice before - I can pretty much do the MJOA on that one cold, given that the caselaw hasn't changed and is, in my opinion,  remarkably clear.  I think the judge knew that though - she dismissed the case over the state's objection.) 

The Thursday trial resolved with the jury splitting the baby for the Mayor, Lioness and Baby Bull.  That usually means the jury thought something was fishy and returned a Not Guilty verdict on one charge and a Guilty on another charge, even though such a result was somewhat intellectually inconsistent.  Having sat in the back for the entire trial, it really didn't make sense to me.  Juries do what they do - and one can never perfectly predict what that's going to be.  Oddly, the client was ecstatic -  he felt completely vindicated by the NG and felt he could live with the G count.  Again, clients so what they do, and one can never perfectly predict what that's going to be either.

On Friday, the Mayor made some brilliant and technical sentencing arguments (having to do with base  charges and enhancement statutes) that resulted in the judge only being able to sentence our client to CTS.

So we ended the week with one MJOA win, one Guilty CTS (client upset), and one Guilty/Not Guilty CTS (client super-happy and empowered).  Not a bad week all in all. 

However, I wasn't there on Friday to listen to the Mayor's arguments - instead, I was under the influence of anesthetic, which ultimately resulted in some very good news.  I'll explain.  I have a chronic disease (not contagious, thank you) that's been quite the pain to deal with at times.  However, I opted to go after it aggressively years ago, which meant not only religiously taking meds, but changing the way I ate and slept and exercised, and in general being very conscious off all aspects of my physical and mental self in relation to this thing.

I could have done things "better" in an obsessive way (running the risk of defining myself as a mere response to a problem) but instead I adopted the "most of the time" principle - it's far better to do things most of the time in the way they should be done most of the time.  It lets you off the hook as far as being perfect, encourages you to try new things, makes the burden you've taken on manageable, and ought to be enough to sustain whatever it is you're trying to do.  Certain activities - parachuting, bombing an intersection on your bike, or legally representing someone, do not, I hasten to point out, lend themselves well to this approach.  I was a bit worried about going back to law school and becoming a PD, since this thing gets worse with a) stress, b) bad diet, c) lack of exercise, d) lack of sleep.  (Actually too much exercise is bad also, which is frustrating.)  But I think the "most of the time" principle worked well enough for me, and I was able to deal with this thing as being always at my elbow, as opposed to being always in front of me.

I went asymptomatic awhile ago, but you never know how close things are to coming back - you could wake up any given morning and it could be there, full strength.  It's happened to me before, which is just kind of crushing, knowing that everything you've tried to gain is gone, and you'll be laid out for weeks or months before starting at zero again.  It makes long term planning difficult.  Among other things.

Anyway, here's the completely unexpected good news.  Based on the Friday tests, I'm glad to report that I'm now totally in remission, but in a way that strongly suggests this thing might be completely gone, never to return.

I think my MD was more excited than I was, since this happens so very very rarely.  He was actually bouncing when he told me, whereas I was just stunned (or still partially sedated).  But the bottom line is that I'm no longer just holding this thing at bay - it seems to be gone, for all intents and purposes. 

So our new plan is the same as the old plan - cautiously stick with what I've been doing for six months to a year, do another round of biopsying, and then, based on those lab results, quite possibly take me off meds.  The meds I don't mind so much.  They treat the symptoms but not the root cause, and essentially should give me a bit of breathing space to fight this thing down.  They have no side effects worth worrying about, and they're all certainly worth the benefit.  What's exciting is more *the idea* that I don't have to take meds, that my body's finally kicked this thing out on it's own, with everything that means. 

While I can't really say the impending tests were severely weighing on me (since I was expecting yet another "same as before/slightly better" result), they certainly occupied some part of my brain.  I didn't expect this stark shift from one "most likely future" to another, in which the previous "most likely" is now only a distant and unfortunate possibility, just like any other random thing that could befall any of us.  In other words, the bullet is now anonymous - it's had my name taken off it.  Which sort of changes nothing, but sort of changes everything, as I can discount some particular and specific nightmares.  All this is going to take some adjusting, and I'm curious to know just how this is going to impact what (and how) I do.  I mean I can guess, like for example, my recklessness becoming less fatalistic, but I'm still kind of overwhelmed by it.  I mean I just hadn't considered (at all!) that this could happen.  In fact, any daydreams I'd had were of the regretful "cripes, why did I have to get this" variety, and not of the "one day it will be gone" variety.

So, in light of all this, I spend Friday evening modestly celebrating with the Fiery Professor and the Kayaker.  We had stone crabs and wine on the water - it was quite nice.  I even (gasp!) drank white wine as chosen by the FP.  Those who know me should understand just how great of a token of my esteem this is.  We then had some desultory debate/sparring on academic scandals, crabs, marriage and family, and the lack of a liberal/leftist/over-25yr.old crowd in greater Miami.  This town's going to be that much dimmer when the FP departs on her upcoming sabbatical. 

All in all it was a good week.   On Sat. I had brunch with the Kayaker at a cop restaurant (no unfortunate encounters) and then strung up my hammock, in which I logged some serious napping/trash reading time in the balmy afternoon. 

This should be an interesting week coming up. 

First off, I'll obviously be doing some thinking about what my long term future now might include.  Will I feel/act like a weight's off me?  If so, how and when?

I'm also getting a new judge, as one of my former judges is getting transfered to a different division.  I have admired my new judge from afar for quite awhile, and have been in front of him only once.  It was a pretty awesome once though, and I'm looking to being kept on my tip-toes (in the best way) by this man.  Safe to day that a trial in front of him will not be the same as the trials we've had in front of the departing judge.

I think I can also say that we're officially back to full strength in the courtroom - the Lioness has never disappointed, but now she's had time to absorb most of our arguments and do her own thing with them.  Baby Bull is coming along (not that he's had all that far to go) and is pretty much seamlessly folded in to what we do.  (I think we've gotten him more trial experience than many of the regular PDs in our office, and in fact I'd be comfortable with him alone as my second chair.)   Such things as "full strength" are fuzzy concepts and thus hard to date, but I'd say that 2 weeks ago there wasn't the same kind of positioning as we have right now. 

So I'm sort of tentatively viewing this just-past 3-trial week as something of a turning point.  One thing I'm certain about is that a lot of old patterns are going to be reset in the next few weeks, and I have to say I'm looking forward to it.

Over and out, onwards and upwards.   

MJOA

It's fun to win at the M-J-O-A.
It's fun to win at the M-J-O-A.

(To the tune of YMCA by the Village People.) 

Yes, once again the state crumbles in the "bringing it" department, with some gentle help by the defense.  And it's all the more satisfying to win at MJOA after a 3 hour jury selection.  (By comparison, I think the testimony didn't even last for 25 minutes.)   Not my best arguments on this one, and things didn't go as smoothly as I'd normally like.  Due to the odd procedural footing, the argument was more like a glancing blow that knocked the state off a cliff, rather than a solid hit, dead-center, to the state's case.  But it was enough, and that's something. 

It's great when you have a nervous client that gets calmer and more confident as things play out just like you told him they would.  Often, clients get hung up on things that seem important but are not - say, a fact an officer is lying about, one which we won't be able to impeach him on, but one that has no impact on any of the elements and is not so-prejudicial as to sway the jury.  Also, it's not every client who trusts you when you tell them, "This thing you think important will not matter, neither in our arguments to the judge, nor our arguments to a jury."  I'd have liked to have known what this particular jury would have done after our close, but I didn't have an opportunity to interview them after they were discharged.

By contrast, in utterly depressing news, two of my favorite people in the office apparently did not pass the FL bar exam.  Which makes even a good win seem hollow.