South Florida attorneys and Broward County's chief judge are
predicting a serious crisis in the criminal justice system after
July 1, when the paycheck for representing low-income people accused
of capital crimes will be slashed statewide to a maximum of $3,500.
As the burden for paying court-related costs shifts this
summer from counties to the state, local attorneys and legal experts
are predicting that it will be impossible to get lawyers to do the
demanding and emotionally draining work of representing poor people
who face the death penalty.
Death
cases are the most challenging and time-consuming because a life is
at stake and the attorney must try to save it. And even supporters
of the death penalty should be concerned, local attorneys said,
because the problems will slow down cases and may make them even
more likely to be reversed on appeal.
"I think concerned is
too light a word to describe what I feel, I think it borders on the
critical," said Broward Chief Judge Dale Ross. "If we're limited to
$3,500, I can see a crisis looming.
"At $3,500, I don't think
we're going to get anyone to represent these people, and if we were
to get somebody for that money, I'm not sure what caliber of
representation we would get," Ross said. He is drafting a letter to
the program's administrators in Tallahassee to express concern and
press for more realistic rates.
At issue are cases in which
courts appoint private attorneys to represent indigent defendants
when the Public Defender has a conflict of interest.
On
Wednesday, the Broward Association of Criminal Defense Lawyers wrote
to Ross expressing grave concerns about the fee cuts. Joint
association presidents Michael Gottlieb and Charlie Kaplan said they
have not yet found a local lawyer willing to take on a case for that
amount of money.
"That would average out at about $3 per hour
for these complex cases," Gottlieb said. "It's certainly below
minimum wage and any attorney willing to take a case for that would
not be qualified to handle it."
The association is
considering filing a class action lawsuit because the rate cut would
deprive judges of the ability to appoint effective attorneys to
represent poor people, a right the U.S. Constitution guarantees
every defendant, said Bruce Rogow, a Fort Lauderdale attorney and
nationally recognized expert on constitutional law. Rogow said he is
interested in handling such a case for the association.
"It
is the hardest, most debilitating kind of work," Rogow said. "When
you do it, your bed is wet at night with sweat because of the
pressure and the responsibility."
Right now, Broward County
pays attorneys handling such cases $50 per hour for in-court work
and $40 for out-of-court work, up to a maximum of $25,000 for the
lead attorney and $15,000 for the penalty phase lawyer, Gottlieb
said.
In 2002, the county paid an average of $25,600 per
capital case. A lawyer working for a private client with money could
expect to earn from $50,000 to $250,000, depending on the lawyer's
ability and reputation, said Gottlieb.
In Palm Beach County,
lead defense attorneys in death penalty cases have been paid $100
per hour and other attorneys on the team have been paid $75 per
hour, according to Palm Beach County Court Administrator Susan
Ferrante.
And in Miami-Dade County, attorneys working death
penalty cases have been paid $80 per hour. If they're in trial for
more than 41/2 hours, they have been getting $800 per day, said Nan
Markowitz, a courts spokeswoman.
Palm Beach County defense
attorney Robert Gershman, who just finished a monthlong death
penalty case, said he expects the quality of defense attorneys on
the Palm Beach registry after July 1 to suffer because of the $3,500
fee limit. "I don't know, in Palm Beach County, of any capital
defense attorney who would take a capital defense case with a $3,500
cap."
Sen. J. Alex Villalobos, R-Miami, who is also a lawyer
and has handled capital cases in the past, acknowledges that the
rate for capital cases is grossly inadequate. He would not do death
penalty work for that cut-rate price, he said.
He said a
crisis may be needed to repair the system.
"It probably would
be a good thing for the system to crash so the non-attorneys in the
Legislature understand [the problem]," Villalobos
said.
Broward attorneys are also very concerned about changes
in the payment methods for noncapital crimes.
Under the new
rules, attorneys appointed to such cases will have to pay upfront
for costs such as hiring a private investigator, taking depositions
of witnesses and getting mental health evaluations. They will later
be reimbursed by the state.
Many self-employed lawyers cannot
afford to carry such costs, Gottlieb said. And the system, he said,
will discourage qualified attorneys from taking noncapital cases and
affect the quality of representation.
Staff Writers Jaime
Hernandez and Linda Kleindienst contributed to this
report.
Paula McMahon can be reached at
pmcmahon@sun-sentinel.com or 954-356-4533
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