Protecting the Right to Counsel

At first appearance hearings, the court is required to determine if the person is indigent and, if so, appoint the Public Defender’s Office. At one time, the court was appointing the Public Defender’s Office for everyone at bond hearings, but only for the first appearance hearing. That resulted in indigent persons being unrepresented by counsel in the days immediately following the bond hearing. This timeframe is crucial because witnesses’ memories are fresher and physical evidence can still be preserved.

In Office of Public Defender v. State, 714 So. 2d. 1083 (Fla. 3d DCA 1998), the appellate court agreed with us that the court’s practice was illegal and that indigent clients had the right to the uninterrupted assistance of counsel following their first appearance hearing. In Ull v. State, 613 So. 2d 928 (Fla. 3d DCA 1993), we also successfully argued that, once the Public Defender’s Office is properly appointed in misdemeanor cases, the trial court lacks authority to discharge it on the date of trial by certifying no jail sentence would be sought on a finding of guilt. This decision was later quashed by State v. Ull, 642 So. 2d 721 (Fla. 1994). In doing so, however, the Florida Supreme Court emphasized that the defendant can successfully block the discharge of counsel by showing substantial disadvantage due to loss of counsel.

When necessary to protect our clients’ rights, we will raise claims of ineffective assistance of counsel, as the next two cases illustrate. 

Ruel Lanier was charged with strong-arm robbery. The victim, whose purse had been stolen, told police the perpetrator was at least six feet tall, weighed over 230 pounds, and had left in a car. Lanier was a passenger in a car driving through a school parking lot a short distance away when the car was stopped. None of the stolen items were found in the car. Police, who had seen the car before it was stopped, did not see anything being thrown out the windows. Lanier was five feet nine inches tall and weighed 185 pounds. Nevertheless, the victim identified him as the robber. The driver of the car and a student at the school had given depositions and were ready and willing to testify that Lanier was there only because the driver was supposed to be picking up the student and had picked Lanier up along the way, thus explaining his presence in the area. Inexplicably, his privately retained attorney did not call those alibi witnesses to testify at trial.

Following Lanier’s conviction and its affirmance on direct appeal, Lanier v. State, 635 So. 2d 26 (Fla. 3d DCA 1994), we filed a motion for post-conviction relief, arguing that trial counsel was ineffective in failing to call the alibi witnesses. That motion was denied, and the appellate court, in an en banc decision, affirmed the denial of relief because it concluded that our office had not shown the result of the proceeding would have been different if the alibi witnesses had been called. Lanier v. State, 709 So. 2d 112 (Fla. 3d DCA 1998).

We then petitioned for federal habeas relief and won. (Case No. 99-1275-CIV). The federal district court found that the appellate court misapplied the law, because the constitutional standard required only a reasonable probability that the result would have been different. The federal court further found that the failure to call the alibi witnesses was deficient performance by the trial attorney, and that there was a reasonable probability that Lanier would have been acquitted if the alibi witnesses had testified.

The state chose not to retry Lanier. Finally, eight years after his conviction, he was freed.

Antonio Perez was represented by a private attorney at trial, and was convicted. His attorney misrepresented to the court that he had filed a notice of appeal, but in fact he had not done so. As a result, Perez never received a direct appeal.

We filed a motion for post-conviction relief on behalf of Perez, claiming that his attorney was ineffective in failing to protect Perez’s appellate rights. The state trial and appellate courts denied relief, so we filed a habeas corpus petition in the federal district court, which granted relief and ordered the state to give Perez a belated appeal of his conviction. Perez v. Wainwright, 440 F. Supp. 1037 (S.D. Fla. 1977).

The state appealed, and the federal appellate court reversed, finding that the actions of Mr. Perez’s private attorney did not result in fundamental unfairness. Perez v. Wainwright, 594 F. 2d 159 (5th Cir. 1979). We then went to the United States Supreme Court, which granted our petition for a writ of certiorari and ordered the federal appellate court to reconsider its decision. Perez v. Wainwright, 447 U.S. 932 (1980).

This time, the federal appellate court granted relief to Perez, saying that “when a lawyer ... does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal.” Perez v. Wainwright, 640 F. 2d 596 (5th Cir. 1981), citing Perez, supra, 594 F. 2d at 163.

Chronic legislative underfunding caused a tremendous increase in our appellate backlog in the late 1970s. Due to the huge backlog, many clients were denied their right to timely appeals. To ensure effective and timely representation of our clients, we sought to withdraw from excessive appeals in favor of private attorneys appointed by the court. Dade County v. Baker, 362 So. 2d 151(Fla. 3d DCA 1978), quashed sub nom Escambia County v. Behr, 384 So. 2d 147 (Fla. 1980). The appellate court would not permit withdrawal, but the Florida Supreme Court held that a trial court can choose to appoint a public defender’s office or private counsel on appeal.

Our litigation was what caused Miami-Dade County to agree, to compensate private counsel to handle some of the appeals. Attorneys were screened so that only qualified appellate counsel participated. Although the compensation was minimal, the program was effective in reducing the backlog to manageable levels. We also joined with the Dade County Bar Association in the mid-1980s to implement an emergency, volunteer-appellate attorney program to further assist in handling the backlog.

We had filed amicus briefs on behalf of other Florida public defenders who faced excessive caseloads due to legislative underfunding. In In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So. 2d 1130, 1132, 1136 (Fla. 1990), the Supreme Court recognized that “the woefully inadequate funding of the public defenders’ offices, despite repeated appeals to the legislature for assistance” was “a statewide concern,” and chided the legislature to “live up to its responsibilities and appropriate an adequate amount” to fund the public defender offices. The appellate court litigation left a number of significant issues untouched, and in response to our suggestions as amicus, the Supreme Court addressed those issues and ruled in a favorable way. On behalf of the Florida Public Defender Association (FPDA), we have pressed for courts to recognize the professional independence of public defenders to manage their own caseloads, free of judicial interference. We advanced this position in In re Certification of Conflict in Motions to Withdraw Filed by Public Defender of Tenth Judicial Circuit, 636 So. 2d 18, 22 (Fla. 1994), in which the Supreme Court held that, although an appellate court may make an objective inquiry to confirm the factual basis for a motion to withdraw due to excessive caseload, the court should not “attempt to interfere in the management of the Public Defender’s office, or attempt to instruct the Public Defender on how best to conduct his affairs.”

Justice Harding concurred: “The public defender is a constitutional officer. Art. V, §18, Fla. Const. The public defender is charged not only with representing indigent defendants, but also in managing an office, directing personnel, and administering a budget. ... [Public defenders] should be accorded great independence in making the decisions to carry out their charge . . . Courts should be reluctant to get into the micromanagement of a public defender’s office.” Id. at 23.

We also has had to litigate excessive juvenile caseloads. In 1992, we filed motions to withdraw and to appoint outside counsel. These motions were granted in all of the juvenile divisions, leading to negotiations in which Miami-Dade County agreed to fund additional attorney positions for us to represent children in the delinquency system. Beginning on July 1, 2004, expenses that were formerly paid by the County are now paid from state budgets given to the court system, the state attorney and the public defender. Soon after these changes, the public defender joined with the state attorney in challenging the trial court’s practice of ordering expert witness reports and then ordering the public defender and state attorney to pay the costs. The appellate court agreed that the trial court should pay the costs as “the party who requests the appointment of the expert must pay for the expert.” Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So. 2d 527, 532 (Fla. 3d DCA 2005).

We have made a long-term effort at the state and federal levels to get loan repayment assistance for its attorneys. We are pushing for legislative action, through the John R. Justice Prosecutors and Defenders Incentive Act of 2007, to try to increase the retention rate. We are urging congressional members to fund a loan repayment program for law school graduates who elect to work for our office. We have had no success at the state level, but in 2007, the bill passed both houses in Congress.