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. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Saturday, April 25, 2009

A BUTCHKO BLAST

Judge Butchko  is upset. David Ovalle of the Herald writes:

In unusually harsh words, Miami-Dade Circuit Judge Betty Butchko blasted the flaws of the system that defends the indigent accused of third-degree felonies.

The title of the post links to the article. 

We weren't there and we didn't see it. However, after  reading the article, and after having been in these courts for well over 20 years, we can speculate that it went something like this: a judge got upset because things didn't go exactly the way she wanted them to, and being a Judge means you always get your way, right?

Or something like that. 

Our point being, stop whining and making a federal case out of the fact that a PD was not ready to try a third degree felony. That's been happening in our building since most of these judges were in diapers. 

See you in court, ready for trial

11 comments:

Anonymous said...

Does anyone know what the average caseload is today for "C" PD's and ASA's versus the mid-90's?

Anonymous said...

This should move things along.

Obama seeks to end right to legal counsel during police interrogations. http://hotair.com/archives/2009/04/25/obama-to-end-representation-in-interrogations/

rick freedman said...

Rump:

Technical foul on you for not getting all the facts before commenting. I was there and it went something like this:

This was Judge Butchko's finest hour on the bench and she deserves nothing but praise for the lengthy hearing held in her courtroom on Friday.

Over the course of 2 1/2 hours, she heard from the State (Penny Brill); the PD (John Morrison); Regional Counsel's Office (Richard Joyce); the Justice Administrative Commission (General Counsel Stephen Presnell); the proposed "wheel" attorney to be assigned the case (Michael Petit); and me as a "Friend of the Court" and on behalf of the FACDL.

The Judge was concerned that the 6th Amendment to the US Constitution was being violated as it related to the particular defendant in this case and it was going to continue to happen in many other cases coming down the pipe. Judge Butchko wanted to do something about it and that is why the hearing took place.

This particular defendant had been charged with a third degree felony and his case was 90 days old.

Judge Butchko was really looking at the bigger picture and not just this one case. This was just the first case of many that the PD has filed a Notice with the Court called a Notice of Inadequate Representation indicating to the client that they have not done anything to prepare their case for trial. They are filing these documents in all of their 3rd degree felony cases where the client is not in custody. They have decided that the priority cases are those that are more serious and those that are in custody cases. The problem with that is, that this case, and others to follow would start to fall through the cracks and Judge Butchko sees this coming and wanted to do something to stop it.

And this particular defendant was concerned that his defense witnesses may leave the jurisdiction before the PD's office ever got the chance to speak with them; hurting his chances for an acquittal.

The Judge held a Nelson Inquiry on Wednesday and as a result of the answers she got from the defendant, she discharged the PD finding that she was providing ineffective assistance of counsel in this case. She by-passed the Regional Counsel and attempted to appoint the next person on the wheel; that person was Michael Petit.

Reg. Counsel objected and at the hearing Mr. Joyce indicated that they could take the case and provide effective assistance of counsel and do it in a timely fashion.

The Judge questioned how this could be possible when her assigned Reg. Counsel Attorney was a part-time attorney that was already handling 65 cases in her court while trying to run a private practice as well. And those 65 cases range from Life felonies to 3rd degree felonies.

The Judge was also told by Mr. Presnell of the JAC that they would not pay Mr. Petit, if she insisted on appointing him, because she did not follow the Statute by appointing RC.

Judge Butchko was adamant about the fact that she saw her upcoming C weeks and that this same scenario would begin to be played out on many of the out of custody C cases. She also stated that common sense dictated that the part-time RC attorney could not possibly take on so many additional cases and provide competent and effective representation in a timely fashion.

She called on me and I told her that she had every right to be concerned about what was happening in her courtroom. The Gideon case from the US Supreme Court, cited to the 6th Amendment to the US Constitution, and provided that the indigent defendant should receive competent counsel and adequate representation. The Florida Supreme Court said that "the problem of excessive caseload in the PD's office should be resolved at the outset of representation, rather than at some later point in a trial proceeding." Other cases I cited tell the court that "when excessive caseload forces the PD to choose between the rights of the various indigent criminal defendants he represents, a conflict of interest is inevitably created".

The Florida Legislature has decided that they can fund “due process on the cheap” and that what is happening in her courtroom today is the result of their legislative wisdom.

I also told her that the Florida Bar's Code Of Professional Responsibility and the Rules Regulating all attorneys of The Florida Bar state "a lawyer shall act with reasonable diligence and promptness in representing a client". And, "a lawyer's workload must be controlled so that each matter can be handled competently. Perhaps no professional shortcoming is more widely resented than procrastination ... Unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer".

Justice delayed in Justice denied.

Judge Butchko was right on yesterday when she forced the issue to a head in trying to protect the indigent defendant in this case and other to follow – she saw them getting the extremely short end of the stick and she was trying to do something about it.

I hope that gives you a better insight into what happened in Court on Friday.

Rick Freedman
FACDL-MIAMI
President

Anonymous said...

Betty always was a holier than thou type. That black robe took it to another level.

Betty get off of your high horse and behave yourself.

Anonymous said...

I didn't get that reading from the article myself. The issue centers around the fact that the Public Defenders Office is conflicting off of cases when it claims it is overburdened. She didn't seem to come down on the PD at all, that I could tell. The whole issue around the Blake ruling which is being reviewed by the Third. She then bypassed Regional Counsel, a system everyone has been complaining is inadequate and appointed a PCAC. Which is the way things used to be (before the RCA was ever created).

In other words, she is railing about the fact of what everyone has been complaining about for months - that the budget for the criminal justice system is not what it should be. I'm not sure how this turns into a Butchko not getting what she wants thing. Unless of course Rumpole, you are looking at the ulterior motive and assuming Butchko isn't being genuine?

Anonymous said...

Butchko is on the ball.

Anonymous said...

Rumple
I have known Betty Butchko for almost 20 years. I opposed / fought with her when she was with the State. I have tried aMurder against her. I still argue and disagree with her today. But she works hard and trys to do what she thinks is the right thing. In this matter Judge Butchko did the right thing . Being aware of all the underlying facts (and carring a lot of her divisions C cases myself ) I say Rick Freedman got it right. Kodos to Betty Butchko.
D. Sisselman

"C" ASA said...

On the extreme low end for "C" ASA's, 100 - 120, but that's typically in a double C division or a single C division with a judge very involved in plea negotiations (CTS for all coke possessions, etc...) On the average, single C ASA's probably carry about 250 - 280 cases set for trial. Last audit I was at around 280. There are divisions with 300+ but the office has implemented double C's in almost all divisions with 400 or more C cases.

For C PDs, it seems to be at around 120 - 150.

Anonymous said...

I completely agree with Rick Freedman's opinion on this issue. He was present during the enire hearing, was himself a witness, and has been a respected criminal defense attorney for many years. Therefore, his opinion should be given a lot of weight.

Judge Butchko deserves the respect and support of the entire defense bar(PD,ROC, and private attorneys)
for making an issue of the current crisis involving the competent representation of indigent defendants, and for taking the time to have a lengthy hearing regarding this subject. Other judges should follow her example and not simply acquiesce to what is going.

The Legislature and the Courts must accept the undeniable fact that simply a greater budget needs to be allocated (whether it be to the PD,ROC and/or private counsel) for the competent representation of indigent defendants.There is no other way to solve this sensitive problem.

Again, thank you, Judge Butchko, for standing up for what is right and for what is guaranteed by the 6th Amendment in the US Constitution. We need more judges like you on the bench.

Anonymous said...

Richard Joyce is a lazy full of hotair guy. He was lousy as a litigator and quite truthfully he's a bar complaint waiting to happen! That is the caliber of lawyer at the ROC, i'd bypass them too!

Anonymous said...

Are you all brain dead? Oh, sorry for asking an obvious question. Are their people who believe she did this out of concern over defendants getting proper representation for any other reason than to make sure there is an unappealable conviction? Bad lawyering is a ground for appeal, and when you have a judge who likes to put people in prison for a long time, this problem kinda puts a kink in the system. Read between the lines on what happened here people.