WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, May 09, 2007

THE SWALLOW, THE SERPENT, AND THE COURT OF JUSTICE

THE CAPTAIN REPORTS:

This Aesop Fable is about a swallow, returning from abroad and especially fond of dwelling with men, she built herself a nest in the wall of a Court of Justice and there hatched seven young birds. A Serpent gliding past the nest from its hole in the wall ate up the young unfledged nestlings. The Swallow, finding her nest empty, lamented greatly and exclaimed: "Woe to me a stranger! that in this place where all others' rights are protected, I alone should suffer wrong."

The swallow will soon be joined by herds of criminal defendants upon Senate Bill 1088 becoming law. Defendants and victims and the citizens of our state, who thought that the courthouse was a place where their rights were protected, will all find themselves shouting out about how they have suffered from this very bad piece of legislation. As soon as Governor Crist signs the bill, parts of it will immediately become law. Other sections of the law take effect on July 1 and the balance of the bill takes effect on October 1, 2007.

What does it mean for the public? It means that a rape victim, a robbery victim, a home invasion victim, a witness to a murder; for all of those citizens of our community, they will go through the process of becoming involved in the criminal justice system. They will eventually testify in a trial and after the jury comes back with the guilty verdict and the defendant is sentenced, they will go back to their quiet lives, attempting to put the frightening experience behind them. Two or three years later, they will receive a phone call; it may come from a detective or from a prosecutor or from a witness coordinator and they will be told the horrible news. The case was appealed, the defendant won the appeal, and now you have to go through the entire nightmare one more time. When the victim asks why, they will be told that the appellate court reversed the verdict because of ineffective assistance of counsel.

What does it mean for the defendant? It means a citizen of our community, after getting arrested and having their liberty taken away from them, will be appointed an attorney who will likely have inferior skills and not be qualified to handle the case effectively. The attorney will be told that their client is a H.O., or a H.V.O., or a GORT, or a PERP, or some other form of alphabet soup. And the defendant will fight and get their trial and be found guilty and sentenced to many years in the state prison system. And some of those defendants will be wrongly convicted – because they were innocent. But, they will likely sit for 20 years in prison before they are finally released. And then, when they file their claims bill before the legislature, for compensation for being wrongly incarcerated, they will be told to come back next year, and next year, and next year still.

What does it mean for you, the defense attorney who has worked so hard to maintain your growing legal practice? You have a private practice, but you supplement your income with the dozen or so court appointments you get each year off “the wheel”. Or you do it because it is the right thing to do; you want to give something back to your community. Now you are told that, after the Public Defender’s Office conflicts, and the Regional Counsel Office conflicts, that you will be asked to take the case. You are told that you now are under contract and will be paid a flat fee. How much you ask? Let me tell you how much:

CAPITAL SEXUAL BATTERY...................................... 2,000
LIFE FELONY ................................................................ 2,500
FIRST PBL ....................................................................... 2,000
FELONY 1ST DEGREE.................................................... 1,500
FELONY 2ND DEGREE................................................... 1,000
FELONY 3RD DEGREE....................................................... 750
VIOLATION OF PROBATION - FELONY ..................... 500

Here are the rules: Let’s say you plead a third degree felony first time up, no depos taken, wham bam thank you ma’am; five hours of work, $750; that’s $150 per hour. But, let’s say you have that tough case, defendant with multiple priors, or psychological issues, or maybe they are even not guilty, and you need to try the case. You spend 75 hours on the case, and what do you get paid? You guessed it, $750; that’s $10 per hour.

Let’s go to the other end of the spectrum. The Life Felony. The case you will spend 75 hours on, take eight to ten depositions, do your diligent investigation, go to court for six soundings, see your client in jail a couple of times, and, after working the case for six to nine months you get the ASA to offer you a sweetheart of a deal and your client takes it. You just spent 75 hours on the case and you get paid a whopper of a fee: $2,500 or just over $33 per hour. Or the first degree felony case; your client is a PERP and looking at serious time. You spend your 75 hours on the case and make $20 per hour for your $1,500 fee.

And don’t even think about trying to get paid over the flat fees. You want to go over the statutory caps. You know, the ones that have been in place since Reagan was president. You would have to jump through more hoops than you can imagine. By the way, get your bills in to the JAC within 90 days of the close of the case, or you will suffer a 15% penalty deduction from your bill.

It’s time to stand up and fight. There will only be approximately 600-800 felony appointments for the private bar under this new system. It can only work if the attorneys on the wheel (about 325 of them) are willing to take these cases and get paid these ridiculous fees. If you just say “NO”, all of you, there will be nobody to take these cases and you will shut down part of this new system. But all it takes is a few attorneys breaking from the pack and taking the cases, and then, well, the legislature wins. The community loses, the victims lose, the defendants lose, and you lose.

The swallow was pissed off and you should be too – you can get all eloquent on us like Aesop did or you can stand up and fight and you can do so by just saying “NO”!!!!!

AND THE CAPTAIN HAS SPOKEN !!!!!

33 comments:

Anonymous said...

There are quite a few other more radical methods to shut down the courthouse. For one, try every misdemeanor, every 3rd degree felony; Just say no... if we ever got together as a team and acted with one voice.. we have great power. But there are so few of us who care about the big picture, the whole system, to make a difference. We are so tied down with petty criticisms of each other; concerned with who is supposedly better and/or more ethical or dresses funny or who is more friendly. Any Mahi meeting can only be an exercise in futility. Our firm represents 700-800 new felony, misdemeanor, dui cases a year; we will go along with any unified action. A common complaint is that ultimately individual clients will initially suffer and that it is unfair. Maybe, but, for me the long term greater goal is always more important. Hey, if we could get attorneys to try every DUI motion on every case before pleaing guilty, we'd have a dramatic effect. But, what would it take to get any of us to do that. I venture to say we are all pretty set in our ways and more concerned about protecting our carefully crafted personnas than effecting real lasting change.

Anonymous said...

hey dumb ass thats why a special district PD office is coming into play. They will get salaries and keep all the crooked attorneys who dont have friends and no one likes from abusing the system.

Anonymous said...

Is this a call for the defense bar to take a stand, together?

That's funny.

Anonymous said...

http://www.cnn.com/2007/US/05/08/workman.execution/index.html

Here's the interesting part of the article which talks about a man recently put to death:

Deficiencies' in lethal injection procedures

Saying there were "deficiencies" in Tennessee's lethal injection instruction manual, Gov. Phil Bredesen rescinded it in February and gave the state's commissioner of correction 90 days to write a new one.

On April 30, the state issued a new set of lethal injection procedures, but the cocktail of lethal drugs used in the state's executions remained unchanged.

A study published in April by the Public Library of Science -- a nonprofit organization of scientists and doctors -- found the three-drug lethal injection protocol probably left prisoners subject to immense pain before they died.

The creator of the cocktail told CNN he feels that it should be reexamined as a method of execution.

In his talk with CNN, Workman said he feared what lethal injection might feel like.

"It almost makes me want to choose the electric chair," Workman said.

"They are saying in this report that a lot [of prisoners] have suffered, they wouldn't be able to speak. You can't move to say anything. You're frozen."
------------------
That's food for thought.

Anonymous said...

Or you can show up tonite at the Mahi Shrine and listen to Prince Maloy.

abe laeser said...

I do not understand SB 1088 at all. I hate to retry cases. Even I will retire one day - and not be very happy that my succesors will have to try to recreate a moribund case file; with victims and witnesses who can never expect closure.

Penny wise and pound foolish!

We MUST pay qualified counsel now or suffer the consequences of our own 'thrifty' ways.

Anonymous said...

Captian
Calm down. What you are suggesting is obstruction of justice.

Anonymous said...

Elortegui advertises $1,500 for a first degree felony.

Anonymous said...

Captain
Rumpole just posted up. Why you fronten on his fortune?

rick freedman said...

Dear Mr. Captain:

You should know that any organized boycott could result in an antitrust lawsuit being filed against that group. At least this is what we are being told.

Having said that, I can tell you that FACDL has an organized campaign ongoing to communicate to Gov. Crist how bad this bill is and that he should veto it. Brian Tannebaum, our legislative chair, is heading that effort.

We also have an attorney on board who has an extensive background in constitutional challenges. We began working yesterday on framing the issue/s for a constitutional attack on the bill.

Everyone can do their part to let the Governor know that justice will not be served with the passage of this law.

Rick Freedman

Anonymous said...

What parts of the bill go into effect immediately?
What about cases that we have already been appointed on?

Anonymous said...

Rumpole -

Can you tell us who won the election in Sweetwater? Surprised there hasn't been a post about it yet.

why nothing changes said...

Sweetwater Mayor Maroño reelected
BY JOSE CASSOLA
jcassola@MiamiHerald.com
In a close race, incumbent Manny Maroño was reelected late Tuesday night to a second mayoral term in Sweetwater over challenger Marcos Villanueva. Maroño garnered 1,004 votes (52 percent) to Villanueva's 909 (48 percent).

the trialmaster said...

bottom feeders, if u dont like the fees, then learn civil litigation and become a real trial lawyer.

Anonymous said...

Abe:

Your post is most appreciated. Does it reflect the position of the State Attorney? If so, why isn't she and every other SA lobbying the Governor to veto this bill. If not, is she an idiot, politician, or both?????????

Anonymous said...

I hear DCF pays good $$ for Attorneys to prosecute TPR cases. If you meet the bright apples at DCF legal you will learn that no qualifications required.

Anonymous said...

What a tragedy! The wheel of misfortune gone at last. Now, only the worms who inhabit the rectal regions of bondsmen will see a cozy profit. As for the decline in the quality of representation, one should ask, "What quality of representation?" The hacks who rely on the wheel for their sustenance are plea-pushers who are occasionally forced to pretend that they once read an FLW.

Anonymous said...

This bill is a problem. But, the defense bar contributed to the negative public perception by continually supporting crappy judges who rule their way every time. The public is tired of the nonsense.

We need to ensure appropriate representation, but we also need to clean house and restore the public's faith in the system. We won't get anywhere until the public forgives the decades of bullshit.

fake katherine harris said...

Cap--
You can't get something for nothing.

I guess I hate to see indigent defendants harmed through no doings of their own. But the government shall get what they pay for. Zero. Zero justice for all. La di da. La di da. Yeah, well...

I agree with trialmaster. A misnomer. Like him I will continue to reap money from demand letters. I'll just settle when the rubber meets the road and I actually have to try a case. Genius!

Also, I like this new sandwich. I have just listed 20 Defense Witnesses.

You get what you pay for Tallajokee. Nothing. Except further evidence Florida is the most bizarre state in the Union. The government is effectively muting Gideon's Trumpet and our Oaths as attorneys. Just what I like.

Warm Wishes,
Fake Katherine Harris.
P.S. I got what I paid for. Sort of. Hiya G.W. Wait, I got nothing for something.

My offer to this new wheel is this: NOTHING. And I'd appreciate it if you'd leave me the checks on my desk once you've figured this joke out.

Anonymous said...

from the ONION PEELER; 1. the defense cannot unite because one way private attorneys get cases is to bad mouth other attorneys, don't hire that guy he is a drunk, coke head, gay , lazy etc. 2.the regional conflict offices will hire expds who are connected and want roughtly the same salary, maybe a little better and less of a caseload. 3.the remaining cases to be farmed out will not be enough to sustain an attorney working out of his apartment so they will have to get an office and paying clients. 4. #3 requires a unified bar effort to raise bar exam passing score and cut down on law school class size- hello people there are 80k lawyers in florida, 5.and now for the piece de resistance- this failure to persuade the legislature and governor of the need for decent pay for those who defend the poor, constitution and yes occasionally innocent is indicative of a larger failure of OUR PROFESSION. We have not taken on the real issues of the day in a unified approach which is why most of us went to law school. Most of us did not go to law school to be rich- we knew that was reserved for those from wealth and power who arrange thejob at the Steel Hectors- reserved for those who go to top 10 law school. To make real lawyer as an attorney you have to be a whore- a. chase ambulances b. defend rich drug dealers and white collar criminals c. defend corporations-cigarettes, cars, insurance , toxic torts etc. Our profession is not held in the esteen it needs to influence the governor to obtain 5000 dollars for 50 hours work, 10000 for a felony trial. WHY? You mean you don't know? Here are 5 major problems that we as lawyers have failed to rectify in this country: 1. People sleep on sidewalks and don't have homes and you can arrested for feeding the homeless. 2. We are engaged in a war where our commander in chief has admitted that the country we are occupying did not attack us. That makes us an imperialistic terrorist nation that has killed an estimated 300000 Iraqis in an unjust war. Bush planned on invading Iraq before 9/11 because of its Texas Tea. 3. We are one of the most violent societies in the world where children can obtain machine guns and commit mass murder and we let the NRA dictate national health policy. 4.We use our military to protect ungrateful nations and leave our own borders defenseless and allow illegal immigrants more health care,work, and welfare rights than almost all american citizens. 5. WE have very little ethics in our business conduct because of our incessant need to acquire material possessions, wealth and status- and many people are forced to operate outside of corporate america because the doors are closed to them- either because they are honest, ethical-, not from the right schools or have the wrong skin color- so they grow marijuana- sell coke- run massage parlors-gamble-real estate and insurance scams- stock fraud- insider trading-chop shops-car theft rings etc. If as lawyers we were as feared today for our positive affect on society as when Shakespeare said the first thing we must do is kill all the lawyers- well then we wouldn't be in a position where there are so many of us that we can't make a living.Oh one more thing- I know I need to get laid.

Anonymous said...

1st, where was the FACDL before sb1088 passed. Why did this bill come as a surprise? 2nd, why would anyone in Tallassee care about criminal defense boycott in miami?

Anonymous said...

Drum role, camera fades in, black and white film, then a bright flash of light and the appearance of his high holiness, the ABE. He has spoken, the fee debate is closed- from a man who never EVER had the guts to leave the sao and see what a real challenge is- winning murder cases as an asa is about as tough as shooting fish in a barrel-.

The Truth said...

6:31 you are an asshole.

Rumpole said...

I think the person who had something to say about Mr. Laeser working his whole career at the State, could have phrased it better without the crude analogy to a woman's breast. So if you want your comment up, re-do it.

I would however respond that our community is lucky to have people like Mr. Laeser, Mr. Gilbert, Laura Adams, David Waxman, who spent their career in public service.

old guy said...

Hey 6:31.
I worked for the government for many years. Great lawyers work there, out of dedication.

Working hard for the public good instead of a fancy car - who is the asshole?

Anonymous said...

To 6:30 p.m., if you were a member of FACDL and a part of their listserv, you would know that the organization has been workings its butt off fighting this legislation, and that in no way was Bill 1088 a surprise.

Anonymous said...

To 8;23. sorry abe, or is it altschuler, or is it an asa who loves abe.ask any former asa to compare prosecution and criminal defense and they will tell you defense is 10x harder, you don't have to visit jails, harassed by cops and doc, screwed out of money you earned, have your own library, costs etc. sorry but the truth is a career asa is not that hard-some of them you don't see for months even years-but the pd is similar-they both have at least 10 attorneys laughing all the way to the bank- to last that long you have to dirt on your boss, or a good set of knee pads.

Anonymous said...

Laura Adams?!

Optimist said...

I may be naive, but I honestly don't understand why everyone assumes that the attorneys in the Regional Office will be ineffective attorneys. Honestly, I think that statements like that are a reflection of self-doubting, low self-esteem attorneys who don't know if they can make a living without the wheel. If you can't make a living without the wheel, and if you are getting desperate enough to berate unknown attorneys who may work for the Regional Office, then you have to ask what is wrong with you. And before people start saying that these are my beliefs because I'm probably going to try to become one of the Regional Office attorneys, all I can tell you is that I'm a sole practitioner, making a comfortable living, without the wheel, and with no intention of closing my office to become a Regional Office attorney. You're going to have to trust me when I tell you that there is enough work to go around for everyone, and you'll be fine without the wheel.

Anonymous said...

gilbert could not get a job anywhere else and never had the guts to go into private practice in that no law firm would hire him.

Anonymous said...

waxman tried private practice as a civil malpractice attorney. after one month he learned he couldnt compete with the real trial lawyers in the civil arena and went scurring back to kathy's or janet's skirt.

Anonymous said...

Did you miss Gilbert's closing in Ramirez case last month?
Absolutely masterful. You better hope he is not prosecuting one of your clients!

the trialmaster said...

my 5 yr old daughter could have won the rameriz case. if gilbert ever is the pros, in one of my cases i will eat him up like i have seff,woodward, dibitske, mcwillians,waxman,postman and many many others.