Monthly Update. Criminal Law Section

Transcription

1 Criminal Law Section September, 2009 Volume 3 Issue 2 Monthly Update The Florida Bar Criminal Law Section 651 East Jefferson Street, Tallahassee, FL wgraham@flabar.org Phone: 850/ Amicus Brief Encourages Change in Trial Court System By: Donnie Murrell, Immediate Past Chair Last year the Criminal Law Section was asked to appear as amicus along with the Florida Association of Criminal Defense Lawyers (FACDL) in a case from Manatee County involving the involuntary appointment of a defense attorney to an indigent defendant. This week the Second DCA issued a ruling in Hagopian v. Justice Adminstrative Commission, et al. Case #2D For those not familiar with the issues, the Statewide Prosecutor filed a series of RICO cases against alleged gang members in Manatee County. Mr. Green was one of eleven co-defendants in one such case. Unfortunately for him, due to the extreme cutbacks in compensation for court appointed counsel, only five attorneys in Manatee County accepted court-appointments. The Office of Regional Conflict Counsel had a conflict. That left several indigent defendants, including Green, without attorneys. Green was held in custody pending trial. After being unsuccessful in soliciting volunteers to take the case, the circuit court in Manatee County created an Involuntary Appointment List and began appointing attorneys whose names were placed on the Involuntary Appointment List to represent Mr. Green and other co-defendants. (P. 3 opinion.) The list was compiled from a Florida Bar membership roster which identified lawyers as criminal practitioners, and from phone book yellow pages, web pages and internet sites, attorneys who were on the former court appointed list, and from criminal division judges with knowledge of the defense bar Attorneys placed on [the list] were not vetted for experience, expertise, or with regard for whether the appointment would create a financial hardship. In fact, their particular competence or fitness to represent defendants charged with first degree felonies was not a consideration for eligibility. Attorneys who limit their practice to traffic and misdemeanor matters and never tried a case to a jury were lumped together with lawyers experienced in the most complex criminal cases. (P. 9 opinion) The first attorney appointed to Mr. Green from this list was a new lawyer who candidly confessed to a lack of sufficient training or expertise to competently handle a serious crime like the RICO and conspiracy charges The second lawyer was mistakenly identified as a criminal law practitioner based on an outdated Manatee County Bar Association roster, and is more accurately described as a family law and estate planning practitioner (P.10 opinion.) Third times a charm Mr. Hagopian was next on the list. Save The Date! September 11, 2009 Executive Council Meeting, 9 a.m. 12 noon, Tampa Airport Marriott January 22, 2010 Executive Council Meeting at Midyear, Orlando January 28, 2010 Advanced Federal Practice, Miami March 4, 2010 Topics in Evidence, Tampa Airport Marriott and Webcast April 16, 2010 Criminal Law Update, Miami June 25, 2010 Executive Council Meeting, Boca Raton Greg Hagopian is a solo practitioner in Manatee County who handles civil and criminal cases. He has one secretary to help him out. He was not on the court appointed list, did not solicit court appointed work and was minding his own business when the order appointing him to represent Mr. Green arrived in the mail. Mr. Hagopian moved to withdraw. The circuit court judge was obviously in a tough spot. An incarcerated, indigent defendant needed a lawyer for a complex, time consuming case. The statute for court-appointed counsel capped fees at $3,000. If the case required counsel to make extraordinary and unusual efforts the statute allowed a maximum hourly rate of $75/hour. (P.6 opinion) Additionally, the JAC would not agree to compensation for travel to the jail for client interviews despite the fact that all telephone calls from the Manatee County jail are monitored and the jail s location requires a minimum two hour round trip. (p. 14 opinion). The court entered an order directing that Hagopian be paid an hourly rate of $110 and allowed interim billing every forty hours in an effort to provide Hagopian an income stream sufficient to keep his office afloat while the case was pending. At the hearing on the motion to withdraw, Hagopian testified that being forced to accept the appointment would ruin his continued, next page

2 Encourages Change continued from previous page practice. He testified that his office overhead was approximately $12,000/month. (P. 12 opinion). The State had listed 382 witnesses, there were 176 separate police reports in discovery, nine predicate acts as to Mr. Green alone and eleven co-defendants. Hagopian estimated it would take at least 500 hours to investigate the case and prepare for trial. He also testified about his fear that he could not continue to handle existing matters he already had accepted nor would he be able to accept new matters for a substantial period of time. He also expected that the volume of materials involved would require him to hire additional staff. Hagopian presented the testimony of other lawyers who discussed the impact such a lengthy trial would have on a solo practice. They also described problems they had experienced with JAC paying them. One opined that qualified counsel would demand at least $300,000 to take on such a case for a private client. The trial court recognized the hardship the appointment would bring to Hagopian. However, clearly feeling that it had no other remedy, the trial court denied the motion to withdraw. Hagopian appealed. This case brings into sharp focus many of the issues facing our state criminal justice system operating under such severe budget shortages. While the trial court made a commendable effort at reconciling the competing needs of the various parties, the remedy was clearly inadequate. The burden of providing indigent defense cannot fall solely on the shoulders of the private bar. FACDL felt strongly about this issue and approached the Criminal Law Section to join with it in an amicus brief. Our Section agreed to get involved. Sonya Rudenstine and Larry Turner, Section members from Gainesville worked hard on producing the brief. Larry handled the oral argument. The work of both these lawyers was absolutely top-notch. We should publicly thank them for their efforts. Their work allowed the Section to have a voice in this very important debate. The opinion is lengthy and wide ranging, but leaves many more questions than answers. Mr. Hagopian was allowed to withdraw. However, the opinion clearly supports the proposition that lawyers can be involuntarily appointed to indigent defendants under most circumstances. ( Our opinion should not be read as granting lawyers a free pass to avoid unwanted appointments to The CRIMINAL LAW Section of The Florida Bar Prepares and Publishes this Journal Carolyn M. Snurkowski, Tallahassee... Chair Sheryl J. Lowenthal, Miami...Chair-Elect Lisa M. Porter, Fort Lauderdale...Secretary H. Scott Fingerhut, Miami... Treasurer Dennis G. Kainen, Miami...Board Liaison Paige Graham, Tallahassee...Program Administrator Clay Shaw, Tallahassee... Layout/Art Design Unless expressly stated otherwise, The Record s articles reflect only the opinions and ideas of The Record s authors. represent indigent persons in more conventional prosecutions. [P. 37 opinion]) But the Court also cites To Kill A Mockingbird and observes the practice of law has changed drastically since the 1930s when the fictional Atticus Finch practiced law. (P. 31 opinion.) The case was remanded for further proceedings. Pity the poor trial court faced with the duty of following that instruction. One wonders what more the trial court could have done to adequately provide counsel, other than ordering a higher rate of compensation. Meanwhile Mr. Green remains in custody, without a lawyer, awaiting trial. This is an issue that is not going away. It affects the entire criminal justice system. Prosecutors cannot get their cases to trial, judges cannot protect the rights of the litigants, defense attorneys cannot provide effective assistance of counsel after being drafted into a case that might ruin them financially. Our Section needs to take an active role in finding/proposing a solution to this problem. This is a project that demands our attention. We must be involved. A brief overview of the new statewide orders of probation. By legislative mandate last session, DOC and OSCA were to generate a statewide order of probation. A few notable points of interest are listed as follows: In Section 3 of the order, there is no provision for a true split sentence I. e. prison followed by probation. In the Standard Conditions of Probation section, OSCA has taken the position that the conflicts between statutory authority and Rule is controlled by the Rule. An example is number 4 regarding possession of a firearm which is statutory and approval for possession of any type of weapon which has no statutory basis but is in Rule On page 7, it allows payments to either DOC or the clerk. Of note, if DOC is used there is a 4% surcharge. In the 6th we have selected the default to always be the clerk because of the availability of the records at our local clerk. Also on page 7 is a section that allows waiver of the various court costs and fines. Our chief judge announced at a meeting that he was told that the clerks are collecting this data on each individual judge and reporting it to the legislature. He indicated that he did not believe a judge could now waive these fees any more than a judge could waive a minimum mandatory sentence. Time will tell. The Order can be found on the Criminal Law Section website at

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4 Criminal Law Section Executive Counsel Ms. Carolyn Marie Snurkowski, Chair 4519 Camden Rd. Tallahassee, FL (850) Fax: (850) myfloridalegal.com Ms. Sheryl Joyce Lowenthal, Chairelect Two Datran 9130 S. Dadeland Blvd., Ste Miami, FL (305) Fax: (305) Honorable Lisa M. Porter, Secretary Broward County Courthouse 201 S.E. 6th St. Fort Lauderdale, FL (954) Mr. H. Scott Fingerhut, Treasurer H. Scott Fingerhut, P.A S. Dixie Hwy., Fl. 2 Miami, FL (305) Fax: (305) hsfpa@aol.com Mr. Terry L. Hill, Director of Programs 651 E. Jefferson St. Tallahassee, FL (850) Fax: (850) thill@flabar.org Honorable Stanford Blake, Legislative Chair Crininal Division 1351 N.W. 12th St., Ste. 423 Miami, FL (305) Fax: (305) sblake@jud11.flcourts.org Mr. Dennis G. Kainen, Board Liaison Weisberg and Kainen 1401 Brickell Ave., Ste. 800 Miami, FL (305) Fax: (305) attorneys@weisbergandkainen. com Mr. Larry Donald Murrell, Jr., Immediate Past Chair L. D. Murrell, P.A. 400 Executive Center Dr., Ste. 201 West Palm Beach, FL (561) Fax: (561) ldmpa@bellsouth.net Mr. Lewis H. Buzzell III 9443 Crystal Springs Rd. Jacksonville, FL (904) lhb3@hotmail.com Mr. Robert Henry Dillinger th St. N. Clearwater, FL (727) Fax: (727) pd6@wearethehope.org Mr. Douglas Duncan Roth & Duncan P.O. Box 770 West Palm Beach, FL (561) Fax: (561) dnd325@aol.com Ms. Ann Elizabeth Finnell Finnell, McGuinness & Nezami, P.A. 233 E. Bay St., Ste. 601 Jacksonville, FL (904) Fax: (904) afinnell@fmnlawyers.com Mr. Jeffrey Mark Harris Jeffrey M. Harris, P.A. 1 E. Broward Blvd., Ste. 925 Fort Lauderdale, FL (954) Fax: (954) jmhcrimlaw@aol.com Mr. Richard L. Hersch Hersch & Talisman, P.A S.W. 27th Ave., Ste. 206 Coconut Grove, FL (305) Fax: (305) htlawmiami@aol.com Mr. Les Hess 415 N. Orange Ave. P.O. Box 1673 Orlando, FL (407) Fax: (407) lhess@sao9.org Ms. Susan Odzer Hugentugler 201 S.E. 6th St., Ste. 660A Fort Lauderdale, FL (954) Fax: (954) shugentugler@sao17.state.fl.us Honorable Cynthia Gelmine Imperato Broward County Courthouse 201 S.E. 6th St., Rm Fort Lauderdale, FL (954) jimperat@17th.flcourts.org Mr. Abraham Laeser 1525 Daytonia Rd. Miami Beach, FL (305) abe@laeser.us Ms. Calianne P. Lantz P.O. Box 1768 Hallandale, FL (786) caliannel@aol.com Mr. Martin Patrick McDonnell Rutledge Ecenia Purnell, et al 119 S. Monroe St., Ste. 202 Tallahassee, FL (850) Fax: (850) marty@reuphlaw.com Mr. Richard L. Polin Attorney General s Ofc. 444 Brickell Ave., Ste. 650 Miami, FL (305) richard.polin@myfloridalegal. com Mr. Scott Neil Richardson Scott N. Richardson, P.A Forum Pl., Ste. 300-F West Palm Beach, FL (561) Fax: (561) snr@snresq.com Mr. Harvey Joel Sepler Public Defender s Ofc N.W. 14th St. Miami, FL (305) Fax: (305) hsepler@pdmiami.com Mr. Joel Michael Silvershein State Attorney s Off 201 S.E. 6th St., Ste. 660 Fort Lauderdale, FL (954) Fax: (954) jsilvershein@sao17.state.fl.us Mr. Kenneth M. Swartz Swartz and Lenamon 100 Biscayne Blvd., Ste Miami, FL (305) Fax: (786) ken@swartzlawyer.com Mr. Brian Lee Tannebaum Tannebaum Weiss PL 150 W. Flagler St., Ste Miami, FL (305) Fax: (305) bt@tannebaumweiss.com Mr. George Euripedes Tragos SunTrust Bank Building 601 Cleveland St., Ste. 800 Clearwater, FL (727) Fax: (727) george@greeklaw.com Mr Larry Gibbs Turner Larry Gibbs Turner 204 W. University Ave., Ste. 7 Gainesville, FL (352) Fax: (352) lgt@turnerandhodge.com Mr. William C. Vose 1104 Bahama Dr. Orlando, FL (407) Fax: (407) wcvose@cfl.rr.com Honorable Samantha Lee Ward George Edgecomb Courthouse 800 E. Twiggs St., Ste. 421 Tampa, FL (813) Fax: (813) wardsl@fljud13.org Honorable Michael R. Weatherby Duval County Courthouse 330 E. Bay St., Ste. 204 Jacksonville, FL (904) Mr. Paul H. Zacks State Attorney s Office 401 N. Dixie Hwy. West Palm Beach, FL (561) pzacks@sa15.state.fl.us Ms. Angelica Dianne Zayas State Attorneys Office 1350 N.W. 12th Ave. Miami, FL (305) Fax: (305) angelicazayas@miamisao.com Ms. Jennifer Mary Zedalis Levin College of Law P.O. Box Gainesville, FL (352) Fax: (352) zedalis@law.ufl.edu

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