RES IPSA LOQUITUR
February 18, 2008
The Honorable Victor Tobin, Chief Judge
Broward County Courthouse, Room 1010B
Fort Lauderdale, FL 33301
Dear Judge Tobin,
As you know from our previous conversations, the budget cuts under consideration by Legislative Committees, combined with the budget cuts already imposed on my office, will significantly impact our ability to fulfill our constitutional mandate. Budget cuts will also impact the courts, state attorney’s office and other agencies within the criminal justice system. My office will support and work with you and the other members of the criminal justice system as we deal with the effects of these cuts.
The budget cuts already sustained by my office in the fiscal year July 1, 2007 thru June 30, 2008 were 6.5% of our total appropriations, or $1,113,344.20, of which 97% was from salary monies. In addition, due process funding was also cut 4% for the year amounting to $82,427.92. This amount does not include this office’s portion of any shortages in other public defender offices which we will be assessed because all public defender due process funds are pooled. It is anticipated that some offices will run out of their allocated due process funds well before the end of the fiscal year. Because the monies are pooled, we anticipate that this office will run out of due process funds prior to June 30, 2008. Despite our efforts to cut back on due process expenditures, we will be unable to pay for the services necessary to prepare a defense.
These numbers cannot reflect the human toll of these cuts. Prior to the cuts, this office, as well as the other public defender offices, was grossly under-funded. The legislature’s failure to adequately fund indigent defense has resulted in under-paid attorneys managing heavy caseloads. Turnover rates have risen accordingly. Budget cuts have prevented me from replacing attorneys and staff, exacerbating an already difficult situation.
If further cuts are imposed, I believe this office will be unable to accept appointments at traditional levels. Our constitutional mandate to provide effective assistance of counsel will be severely compromised. Continuing to accept appointments to cases you cannot adequately defend is both irresponsible and unethical.
I am hoping that I will not have to make such a drastic decision. However, I cannot give my clients inadequate representation, nor can I ask my attorneys to violate their ethical obligation to their clients.
I will continue to communicate with you and the state attorney’s office regarding the impact of these cuts and our ability to continue handling additional cases. I will work with all parties to alleviate the effect of future cuts. However, as you well know, constitutional rights are not dependent on financial resources. The Gideon decision settled that issue decades ago. While I will do my best to deal with whatever budget cuts come forth and work with you and all other stakeholders in the criminal justice system, there is a legal line which I cannot cross. That line has been drawn by the U.S. Constitution, the Florida Constitution and the Rules of Professional Conduct which prohibit me from accepting appointments without being able to actually defend the cases.
It is my great hope that the legislators will recognize that too much is at stake in the work we do. Their decisions affect more than the people involved in the justice system; they affect justice itself. When we try to do justice on the cheap, the human cost is incalculable and the loss of faith in our system by the public at large becomes insurmountable. Hopefully people with vision will prevail when the hard decisions are made.
Sincerely,
Howard Finkelstein
cc:
The Honorable Ana Gardiner
The Honorable Michael J. Satz
The Honorable Sharon Zeller
The Honorable Joel Lazarus
Carol Ortman, Court Administrator
Randy J. Ball, Policy Coordinator
Executive Office of the Governor
Public Safety Unit
The Honorable Victor Tobin, Chief Judge
Broward County Courthouse, Room 1010B
Fort Lauderdale, FL 33301
Dear Judge Tobin,
As you know from our previous conversations, the budget cuts under consideration by Legislative Committees, combined with the budget cuts already imposed on my office, will significantly impact our ability to fulfill our constitutional mandate. Budget cuts will also impact the courts, state attorney’s office and other agencies within the criminal justice system. My office will support and work with you and the other members of the criminal justice system as we deal with the effects of these cuts.
The budget cuts already sustained by my office in the fiscal year July 1, 2007 thru June 30, 2008 were 6.5% of our total appropriations, or $1,113,344.20, of which 97% was from salary monies. In addition, due process funding was also cut 4% for the year amounting to $82,427.92. This amount does not include this office’s portion of any shortages in other public defender offices which we will be assessed because all public defender due process funds are pooled. It is anticipated that some offices will run out of their allocated due process funds well before the end of the fiscal year. Because the monies are pooled, we anticipate that this office will run out of due process funds prior to June 30, 2008. Despite our efforts to cut back on due process expenditures, we will be unable to pay for the services necessary to prepare a defense.
These numbers cannot reflect the human toll of these cuts. Prior to the cuts, this office, as well as the other public defender offices, was grossly under-funded. The legislature’s failure to adequately fund indigent defense has resulted in under-paid attorneys managing heavy caseloads. Turnover rates have risen accordingly. Budget cuts have prevented me from replacing attorneys and staff, exacerbating an already difficult situation.
If further cuts are imposed, I believe this office will be unable to accept appointments at traditional levels. Our constitutional mandate to provide effective assistance of counsel will be severely compromised. Continuing to accept appointments to cases you cannot adequately defend is both irresponsible and unethical.
I am hoping that I will not have to make such a drastic decision. However, I cannot give my clients inadequate representation, nor can I ask my attorneys to violate their ethical obligation to their clients.
I will continue to communicate with you and the state attorney’s office regarding the impact of these cuts and our ability to continue handling additional cases. I will work with all parties to alleviate the effect of future cuts. However, as you well know, constitutional rights are not dependent on financial resources. The Gideon decision settled that issue decades ago. While I will do my best to deal with whatever budget cuts come forth and work with you and all other stakeholders in the criminal justice system, there is a legal line which I cannot cross. That line has been drawn by the U.S. Constitution, the Florida Constitution and the Rules of Professional Conduct which prohibit me from accepting appointments without being able to actually defend the cases.
It is my great hope that the legislators will recognize that too much is at stake in the work we do. Their decisions affect more than the people involved in the justice system; they affect justice itself. When we try to do justice on the cheap, the human cost is incalculable and the loss of faith in our system by the public at large becomes insurmountable. Hopefully people with vision will prevail when the hard decisions are made.
Sincerely,
Howard Finkelstein
cc:
The Honorable Ana Gardiner
The Honorable Michael J. Satz
The Honorable Sharon Zeller
The Honorable Joel Lazarus
Carol Ortman, Court Administrator
Randy J. Ball, Policy Coordinator
Executive Office of the Governor
Public Safety Unit
Good luck Howard, but do you really think Satz will change anything. He's not exactly quick to change on most things. Unless the police arrest less people or the state charges less people, or the people getting arrested have more money than in the past, you are in for some really hard times. I wish you the best. I know your heart is in the right place. Just please resist the temptation to go back to the meet, greet and plead mentality of the past. It's such a slippery slope. But the judges would love it.
definetly Satz' fault
Satz is the root of all the problems here.
I don't know. I think I saw Ana "Crash" Gardiner by the grassy knoll.
Good for you Howard.
Howard:
We love you, your heart is in the right place, but aren't you the guy sending non-lawyers into the jails to steal clients away fromt the private bar?
Give us a break homie!!!!
What are you going to do, take the taxpayer money and then refuse to represent the people you are sworn to protect?
Al would simply lobby his buddies in the legislature, run a few fundraisers and then scare the hell out of the judges (politically).
Your problem is simple my little friend. You have pissed everybody off and you have no political base. Let's take a poll: Howard forman is not your friend, the State hates your guts, the police do not like you, and the judges consider you enemy number one.
Howard, we all love you because your heart is in the right place. Mental Health issues?!? You really do "live the racial equality, justice for the poor" shtick; but you have no base other than your good last name (you get a 20% bump in Sunrise Lakes and Century Village) and your great job getting paid two great salaries - well earned I might add - which will not help convince the taxpayers to give you any more money.
Suck it up like the rest of us, and tell your APDs to deal with less money - we did.
Howard's too busy doing kathy kuthan and channel 7 to give a rat's behind about the indigent or anyone else for that matter.
HE JUST PLAIN OLE GRANDSTANDING.
I don't think anyone, other than JAAB sycophants, are buying.
What happens if the PD stops taking cases? More SPD work?
It doesn't sound like 'JUST PLAIN OLE GRANDSTANDING.' They're actually volunteering to work with everyone. The questions are, 'do they mean it?' and 'does the old/new guard care enough to call the bluff?' Too busy desigining the new courthouse to concern themselves with constitutional issues. Especially this one!
I heard the public defender in Palm Beach stopped taking cases already. Is that true? How's that working out?
If the PD took only indigent cases and didn't counsel defendants to lie on thier affidavits, the attorneys would not be overworked and burdened with cases. Stop being proactive and drumming up business. Represent indigent Defendant's, not all Defendants.
How is this the PD's fault? The clerk approves the large majority of affidavits IN COURT.
Could it be the clerk's office isn't doing the job correctly?
Or, more likely, could it be the judges like the way the clerk approves everybody? Is that why the judges allow it without questioning the defendants?
I mean, how else will the judges move throught the mountain of overcharged garbage cases without lawyers on board immediately? Aren't the judges complicit in Satz's prison machine?
I agree, stop appointing the PD to every case. Make them pay for lawyers. And watch the system break down even further while more continuances have to be granted so lawyers can be retained and appeals skyrocket.
The PD's Office can hardly be expected to continue to take cases at a wholesale rate without the funding. Good for you Howard. At least the issue is being addressed.
DO IT! DO IT! DO IT!
Right on.
Why send this to Tobin. He just a judge who does not legislate nor appropriate funds! The letter to go to the Speaker of House and President of the Senate!
Tobin is in Tallahassee anyway begging them not to cut his judges. He probably hasn't seen it.
ARREST THE DISHONEST LAWYERS INSTEAD OF REFERRING THEM JUST TO THE BAR PROTECTION RACKET..... THEN PLACE ALL THE CROOKED LAWYERS AND JUDGES ON HOUSE ARREST...... THERE IS NO SPACE FOR ALL THE CROOKED LAWYERS IN ALL THE JAILS IN THE WORLD.
Forget a new courthouse...... pitch a tent and let the judges collect their judge pimping envelopes in public.
Butthead: Heh Heh.....You said "pitch a tent."
Beavis: BOING!!!!!!
This is really great news, at least for Satz and Gardiner. Now they and their RICO can feed the the ever burgeoning prison gobler ant an ever increasing rate and go for the bg bucks with less resistance. so what happens when they come for you and you can't afford a defense. Can't hey just make motions in limine to deny fair trials and jsut get itdone with. Then even Howard Fink would be out of a job. who needs defense attorneys who defend, anyway. It's the typical Ft. Lauderdale mentality--just send you money and forget about getting what you paid for. This is big business for the joint branches of gevernment of Satz and Gardiner. We already know that no one will hold either accountable. Does anyone know if he and Gardiner own any stock in Wachynut?
Wrong Venue, while you're right in theory, do you seriously think Marco Rubio and Ken Pruitt have any idea who Howard even is? So Howard, whose fault would that be, exactly?
PD, heal thyself. You could start by not actively seeking out business, taking your legal obligation to represent ONLY indigent defendants seriously (and no, the Clerk's rubber-stamp can't be dispositive of that) and, oh, I don't know, giving out actual caseloads to your multitude of overpaid chiefs in hope of stopping the bleeding of other APD's from your office.
Or you could just whine like everyone else.
How about some salary cuts for the "Big Dollar Makers" who leave early or have empty rooms, so the departments who do the work can hire and have properly staffed units.
A "token" $1,000 bonus doesn't even cut the mustard when it comes to daily cost of living.
''oink'' lewis should be ashamed to call himself ''NEUTRAL''..... JUST ANOTHER THUGLY COG IN THE BAR's JUDGE PIMPING MACHINE.
I see the clerks appointing us (PD's) on cases all the time that we should not be appointed on. Tell the Defendant to sell their car and hire a private attorney. They probably need the money, and we sure do not need the extra case. The clerks office really needs to start looking and reading the PD applications more closely, and not simply check the Indigient box.
I agree the clerk needs to be more diligent on this issue, but then again, your office doesn't need to be sending non-lawyers to the jail to fill in straight zeroes on the applications either.
4:18, if the PD's office is in fact doing that, then they are suborning perjury and should be prosecuted for it. Of course, then they ought to turn around and ask Howard to represent THEM, since presumably most APD's themselves would probably qualify as indigent.
3:36, regardless of whatever the Clerk might say, if the PD has any reason at all to believe someone is not indigent, they have an affirmative legal duty to object to being appointed: under the statute, they CANNOT represent someone who isn't indigent, and obviously any of the office's time and resources spent defending non-indigent defendants is at the expense of their own other legitimately indigent clients.
What a slap in the face of Florida's rich history that mostly had to go to the US Supreme Court to force this state to grant effective assistnce of counsel from Gideon to Knight and Strickland to Bounds. and noe the legislature wants to undermine the constitution. Can trhe state's budget cuts in the area of public defense and in the name of effective assistance of counsel be challened in the S. Ct. as unconstitutional because it violated the 5th, 6th and 14th Amendment right to due process and a fair trial? How silly--Florida is also a prison train ecomomy. We will build them and then they will come wrote the charge of the Broward Brigade. the easier the legislature maes it, the better.
When will somebody just rip Florida's star off the flag. I'm sure Cuba would love to annex us.
If howard really wants to show he cares, he should cut his own salary to the same as his supervisors or even the others folks there who actually try cases and work hard rather than sit around in "meetings." maybe he should get involved IN the courtrooms instead of grandstanding. You've ripped off the pivate bar, now you most humiliatingly admit that you cant give proper representation to people. The problem is that YOU GOT TOO BIG FOR YOUR BRITCHES WITHOUT THE RIGHT FUNDING MANDATE ORIGINALLY. Hundreds of thousands to Brannon? I mean give the rest of us a break. Top heavy mental health budget, and screw your employees, theres more where they came from. As you can see this mentality as earned you a MAJOR slap in the face. You are down to a small handful of good trial lawyers (down from a LOT only 2 years prior), you sliced a million bucks out of salaries (so no one good wants to work there), and you took more cases than you should represent. A the while, while not even once admitting a mistake. You are a true Clinton democrat minus the political saavy. You haven't even recruited good people to run for judge, rather you've spewed vitriol against what already exists. You are a demagogue for negative change. How about some "change we can believe in," the Obama style change? Give some power back to the people, the lawyers who made your office great. Work with the local bar association -- many lawyers like myself will take LOW COST criminal work bu there seems to be none. Why? Because half the defendants lie about there finances and no one investigates. I bet I could go undercover, as a lawyer, and be approval stamped for a case if I filled out one of those affidavits (not that I ever would). Point is, look to the root of the problem and swallow your pride. Stop with the same canned speech and get real. Are we turning the corner yet??????
"Can the state's budget cuts in the area of public defense and in the name of effective assistance of counsel be challened in the S. Ct. as unconstitutional because it violated the 5th, 6th and 14th Amendment right to due process and a fair trial?"
Unlike the feds, a state legislature cannot create money out of thin air. The power to tax and spend is the most quintessential of legislative powers: no taxation without representation, which is what ANY intrusion on those prerogatives by the judiciary, under whatever justification, would mean. No thank you: there are always other remedies short of tyranny.