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

Monday, March 11, 2013

GIDEON DEAD AT 50: AN OBITUARY




For those of you who are casual or non-esq readers of the blog, or for those of you who wear a black robe to work, the landmark case of Gideon v. Wainwright established the foundation for ensuring that every criminal defendant facing incarceration is provided competent counsel for his or her defense. In other words, Gideon breathed life into the 6th Amendment. 

Justice Hugo L. Black, wrote the opinion for the Court in Gideon. Black wrote  in another case that ''there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.''


The petitioner in Gideon-Clarence Earl Gideon- was prosecuted in Florida. A Florida prosecution was the genesis for the case that set the standard for representation of the indigent. Which makes the situation in Florida all the more ironic and troubling. 

In 2003 the NY Times interviewed Bruce Jacob, the lawyer who represented Florida against Gideon and his right to counsel:
''I hoped that legislatures would meet the challenge,'' Jacob wrote. ''That was at a time in my life when I still believed that legislators want to do the right thing. . . . The record of the courts in fulfilling the hopes represented by Gideon is a dismal one.''

Little did Mr. Jacob know what the Florida Legislature had in store for indigent defendants. 

Last year Florida enacted, and Dade County implemented, the "Limited Registry" which represented the final death blow against the decision in Gideon and the 6th amendment right to counsel for indigent defendants. 

The Limited Registry capitalized on tough economic times for lawyers. Lawyers who signed up  had to sign a contract signing away their rights to ever ask for more money on a case. Once they accepted appointment, based on the level of the felony- no matter how complicated the facts of the individual case was- they agreed to a flat fee- NO MATTER WHAT. 

And just to give you an idea of the level of that flat fee- the fee for handling murder cases, which are usually the largest and most complicated cases in our criminal state court system, where the penalty upon conviction is  life without parole, is ....steady yourself......$2,000.00!

So pick a basic inner city/gun violence murder.  Generally you might have a prosecution witness list of two dozen officers, crime scene technicians, a medical examiner, a firearms/ballistics/gunshot residue expert,  and perhaps a few civilian eyewitnesses. Twenty five witnesses, assume the attorney deposes half for an hour each and spends another hour reading and notating each of the depos once they are transcribed. 

Figure  few hundred pages of police reports that will require another five to ten hours to read and notate, five hours of case law research and a minimum of twenty- one hour visits with the client. So far without stepping into court the attorney has spent 60 hours: 2000/60= $33.33 per hour. 
Court appearance, preparation for motions, and discussions with the prosecution would be a minimum of another 20 hours (more likely 40, but lets assume 20.) Now if the attorney is diligent and gets a witness list from his client and investigates it- or investigates an alternate theory of defense- diminished capacity, self defense, etc.,  the figure quickly reaches 100 hours or $20/hour- or less than a well qualified legal assistant the attorney might employ- and certainly less than the attorney pays his/her  plumber or car mechanic. 

Very successful attorneys who want to handle a murder case every few years as a semi-pro bono endeavor could afford such rates. But that is not the makeup of the Limited Registry. The Limited Registry is comprised of attorneys who have made an economic calculation that by quickly settling most of their cases before they do a lot of legal work, they can squeak out a profit. 

Let's say that again slowly: the Limited Registry provides an economic incentive for attorneys to 1) not fully investigate cases; 2) quickly settle those cases. 

Put aside a murder case and focus on an armed robbery case or an armed burglary or a sexual battery case (where the flat fee is less and $2,000.00)  where the plea offers can often start at 50 years. The attorney spends a few hours, takes one or two depos, the prosecution witnesses get a little edgy and the plea offer is reduced to 20 or even 15 years  and the defendant takes it. Except s/he is innocent, but so poor and perhaps of such limited intelligence that they cannot refute the logic that 15 is better than 50. 

Let the Florida legislators  waste 15 years of their life in prison for a crime they didn't commit. Let some Florida legislator try and deal with a Limited Registry attorney representing their mildly mentally impaired 19 year old son on a sexual battery charge he didn't commit- where all the attorney wants to do is close the case quickly. Then lets see how they feel about the Limited Registry. 

But since that won't happen, we are stuck with watching the corpse of Gideon rot in a stinking mess in our courtrooms every day. 

We are forced as Judges and Lawyers to turn away from the spectacle of the Sixth Amendment writhing on our dirty courtroom floors as it gasps for air. It's as if we are a pedestrian who sees someone hit by a car and rather than rendering aid we quickly duck into a Starbucks and pretend we didn't witness an accident.  

The Limited Registry turns what should be a great justice system into a Henry Ford assembly line, where the Limited Registry attorneys are semi-skilled line workers feeding their clients into the maw of assembly line "justice" (read: prison). 

Gideon is dead. And we helped killed it by our silence=complicity. 

RIP. 

Post Script:
The situation in Florida's misdemeanor courts are even worse. According to the recent  NY Times article on Gideon last week:
In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes.
Try getting a job these days with even a misdemeanor record, not to mention qualifying for a mortgage or a credit card. The American dream is being lost to an assembly line criminal justice system meting out fines, court costs, and criminal records to unrepresented defendants at a record pace. 




47 comments:

Anonymous said...

Is there an update to the limited vs general registry? Is there any talk in Tallahassee about going back to the old wheel, where lawyers got paid for work? How many people are on the limited registry?

"Unabridged American Minority" said...

Very well written Rumpole,

Is this flat fee per count in a numerous count case?

Rumpole said...

No. Flat fee per case.

Anonymous said...

FYI second week REGB is down one of three elevators.

Anonymous said...

You're absolutely right Rump. I'd add one other point. In an era where work is so hard to come by for the average lawyer, why the hell are we as taxpayers contributing to the glut and allowing less qualified people to enter the field by funding more and more law schools with lower and lower admission standards? It makes no sense. We need to consolidate resources and get rid of at least some of these political boondoogles. We have more than enough lawyers already (and way too many crappy ones).

BTDT

PS----I don't buy your argument about the situation in County Court being worse..........most offenses are minor, most convictions result in withholds, and there's no right to counsel in most cases. Further, the cases are relatively simple (other than DUI) and the APDs and private attorneys do a good job representing their clients on those cases (including DUI cases).

Anonymous said...

BTDT,
Can't agree with you about the fact that offenses are 'minor.'
I've had clients denied jobs, promotions, and housing over things that were 'minor' misdemeanors.

Employers/landlord don't care if something says 'withhold'

I recently had college student client lose internship because of case that was nolle prossed, even as we are in process of having case expunged.
Sad thing is that it was 'minor' possesion case that would now be legal in some states.

Anonymous said...

Hey, uh, BTDT, you obviously ain't been here and done this. In Florida a def has a right to counsel in any case where jail/prison is possible.

34 Fla. L. Weekly S15a
Criminal law -- Counsel -- Use of prior uncounseled misdemeanor DUI convictions to enhance later charge from misdemeanor to felony DUI -- Article I, section 16 of Florida Constitution, as influenced by Florida's prospective-imprisonment standard, prevents state from using uncounseled misdemeanor convictions to increase or enhance defendant's later misdemeanor to a felony, unless defendant validly waived his right to counsel with regard to those prior convictions -- State may constitutionally seek increased penalties and fines short of incarceration associated with defendant's relevant number of DUI offenses -- To meet initial burden of production to preserve objection to state's use of prior misdemeanors as enhancers, defendant must assert under oath, through a properly executed affidavit that: (1) the offense involved was punishable by imprisonment; (2) the defendant was indigent and, thus entitled to court-appointed counsel; (3) counsel was not appointed; (4) the right to counsel was not waived -- If defendant sets forth these facts under oath, then a burden of persuasion shifts to the state to show either that counsel was provided or that the right to counsel was validly waived -- In Florida, indigent defendants have right to counsel in all criminal prosecutions punishable by imprisonment unless trial judge “opts out” by providing defendant a written, pretrial certification that defendant will not be imprisoned for the charged offense -- Plea forms executed by defendant were deficient because they provided misleading impression that an indigent defendant lacks right to counsel so long as trial judge is not currently considering jail time as an appropriate sentence
STATE OF FLORIDA, Petitioner, v. GLENN KELLY, Respondent. Supreme Court of Florida. Case No. SC07-95. December 30, 3008. Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance. Fourth District - Case No. 4D06-1039 (Broward County). Counsel: Bill McCollum, Attorney General, Tallahassee, Celia Terenzio, Bureau Chief, Assistant Attorney General, Mitchell A. Egber, Assistant Attorney General, Daytona Beach, for Petitioner. Frank A. Maister and Garrett Elsinger, Fort Lauderdale, for Respondent. Paula S. Saunders, Assistant Public Defender, Second Judicial Circuit, Tallahassee, and Michael Robert Ufferman, Tallahassee, on behalf of The Florida Association of Criminal Defense Lawyers, as Amicus Curiae.

Anonymous said...

2:27.....I was commenting on Rump's statement that the situation (poor quality representation of the indigent by appointed counsel) was worse in County Court than Circuit Court. That simply is not true for the reasons I stated.

I did not say or even mean to imply that misdemeanor cases are meaningless (they're not). I was speaking in a relative sense; the stakes are far lower in County Court than Circuit Court (thus, the cases are relatively minor).

BTDT

Scott Saul said...

That was an excellent and poignant post. However, the reality is that we, as lawyers, did it to ourselves. All the callous overbilling, as well as fingerpointing, has made this facet of criminal law un-interesting to outsiders

Anonymous said...

Hey Scott....wear a tie to court.

Anonymous said...

scott saul is right

Rumpole said...

Scott could represent me sans tie any day.

Anonymous said...

3:03............I freely admit that it's been a loooooooong time since I appeared in County Court on case (yeah, it's been a long time since I did that, lol). That said, the State routinely decertified jail (which means that there is no right to court appointed counsel). I can't imagine that's changed (and don't understand why it would since, again, most of the offenses are relatively minor).

BTDT

Anonymous said...

Here's a solution. Don't sign up for the limited registry and let the PD's and regional counsel try the cases. They do a better job anyways.

Anonymous said...

I've read this blog long enough that I ought to know who BTDT is -- but he makes a point that is just as important as the original post, at 9:40AM.

I hope one day it gets its own front page post and that the national media spends more time exposing it -- the number of law schools and the cost of legal education is criminal. There are far, far too many lawyers.

Each year Florida alone graduates thousands of JDs into a market that cannot sustain them. These thousands of JDs graduate with debt in the hundreds of thousands. Can baby boomers even imagine that? Starting your legal career $250 in the hole? The best part is that these loans are largely federal, so the law school administrators get paid up front. The grads get to live under crushing debt until they default.

The ABAs response? More law schools! Accredit any thing that moves!

With all due respect to anyone's alma mater, there is no reason Florida needs more than two or three law schools, at most.

While the ABA cannot control the market forces that somehow delude thousands of liberal arts majors from taking on $250k debt for a three year period of "The Law and Shakespeare" classes, it CAN do some gatekeeping for its current members.

What's more, with tens of thousands of unemployed and underemployed and debt-crushed JDs hanging around, what incentive does Tallahassee have to raise the rate of pay for PDs or ASAs, or ultimately, the registry? Someone will take the gig and be happy for it.

I don't know anything about the AMA, or whatever union controls med schools, but the ABA should as shit could learn a few things. I can't wait until they accredit some law schools in India or the Bahamas.

I also can't wait until hundreds of thousands of my peers are forced to default on their fed student loans and we have another burst bubble.

Here we go again.

"Unabridged American Minority" said...

BTDT,

Your a hack prosecutor it's so obvious. lol Remember that constitution thingy your were swore to abide by.


3:03pm,

Way to go, BTDT is in some la la land of haterlandia. Glad some some one else could hold the mirror up to BTDT.

7:49,

Stop being lazy and do your research. Their are 7 limited registry attorneys majority of which are bum rejects who's last trials was the mock courts they conducted in Law School.

Anonymous said...

UAM,

You continue to amuse me. Sometimes I read your posts and think you're serious, then you post a typical rant than makes me think you're punking us.

Not everyone you disagree with is an idiot, hater or hack. You sound like a child with all of your name calling.

Did you not read my original post agreeing with everything Rump said about the situation in Circuit Court? My opinion that misdemeanor cases are relatively minor makes me a hack? You disagree with that position? Please. If you can't see the relative difference between felonies and misdemeanors, then you really are clueless.

BTW, here's your legal lesson for the day................reading the Constitution isn't enough. There's actually something called case law. If you read it, you would know that an out-of-custody defendant has no right to appointed counsel for crimes punishable by less than six months if the court decertifies jail. That's why the PD isn't appointed in every misdemeanor case.

BTDT

PS----Sometimes I wish I still worked for the State. It was a great job. Alas, I left many years ago. You don't have to be a prosecutor to appreciate the efforts they and the cops make to protect our communities. They aren't perfect (they're human like everyone else), but they do a service. Not everything is black and white. Grow up.

Anonymous said...

If you divide yearly Salary ( yes w benis) by total cases assigned a year, All Felony PDs make less then $1000 a case ( excepting Capital cases ).

Anonymous said...

924............thanks for you comments.

Our society seems hell bent on handing out graduate school degrees to anyone who wants one. It's a huge mistake and costing us a fortune.

I believe that the glut of law schools and lawyers is one of the biggest threats facing the justice system. Lawyers have a tremendous amount of responsibility. Their clients, and the system itself, depends on their competence.

The many new law schools are financially motivated to fill every seat in their classrooms. They admit students who can't get in elsewhere. By lowering admissions standards, they open the field to those who are less capable of doing their jobs effectively.

And, they do all of this at great cost to society. The universities building these schools often rely on taxpayer funds to do so. Many of the students who attend take out massive loans that they cannot possibly pay back in this economy. Thus, the bubble you speak of (I hope others see it now).

The bottom line is that lawyers are not commodities. We have different experiences and skill sets; we are not interchangeable. Cranking out lawyers for the sake of enhancing a university's prestige or bottom line is asinine. For now, individual clients (including poorly represented defendants) are paying the price. But, sooner or later we're all going to have to do so.

BTDT

Cardinal In Conclave said...

Eligo in Summum Pontificem Shumie!

Rumpole said...

No comments attacking people on how they look/dress etc.

Anonymous said...

Rump - best British and of all times - The Rolling Stones or The Smiths?

Anonymous said...

Is Brian Tannebaum moonlighting as a Senator from Texas? Is it just me? Rump you have to post pictures of Brian and Sen. Ted Cruz. I would but I don't know how.

Anonymous said...

Is it ok for a lawyer to advertise on the clerks web site? check this out
http://www.leeclerk.org

Anonymous said...

Is it OK to comment that Scott Saul may be a good lawyer but dresses like a schlub?

Rump, knowing what a stickler you are for professionalism and respect, how can you possibly defend/support Saul not dressing respectfully in the courtroom.

Yeah, he can have no respect for a judge, or a cop or a prosecutor, but show respect for the process.

Anonymous said...

Rump did not post my comment blasting Scott Saul's courtroom attire. Apparently it was out of bounds. But I agree with the sentiment of other commentators. Scott may sound reasonable on this blog, but his appearance in court is not one of a lawyer who wants to be taken seriously.

CAPTAIN said...



THE CAPTAIN REPORTS:

Black Smoke .... Equals. No Pope Yet.

Cap Out .....

Anonymous said...

Ted Cruz

http://www.jeffhead.com/2012Election/ted-cruz.jpg



Brian Tannebaum

http://t2.gstatic.com/images?q=tbn:ANd9GcQYPEtK0Hjq3LEE8Eix6m4MYWhPKiR-FRQfd8VgYGLNaBdcN7CA

Anonymous said...

Scott Saul's office is three blocks from the courthouse. If he wasn't wearing a tie, it was probably because he was at the courthouse to pull a file or take a deposition. Everytime he's in court, he's dressed professionally.

He's an outstanding attorney who actually tries cases. He's a rare breed.

the trialmaster said...

Love to watch the bottom feeders fight over scraps. The trialmaster does not do court appointments and is not on any wheels.

Anonymous said...

Listen, this is Floriduh. No one needs to wear a tie. Ever.

Anonymous said...

3:29 you are delusional about Scott's court attire. Unless he is in trial, he dresses inappropritely for court. If the judges don't call him out that's their business. But I'm with rump, I'd hire him to represent me or a family member in a heart beat.

Circle K

CAPTAIN said...



to 11:09 AM and 3:06 PM

I served with Ted Cruz. I know Ted Cruz. Ted Cruz is a friend of mine. Tannebaum, you're no Ted Cruz.

Cap Out .....

Rumpole said...

This conversation is veering towards out of bounds. How someone looks is really very insignificant. I guess to the extent there is an issue about dressing for the court to show respect, I can see your point. But this post was about Gideon and defense of the indigent and the 6th amendment. It's the second amendment that discusses the right to wear short sleeves and "bare" your arms. Not the 6th.

Anonymous said...

Tannebaum does look like Ted Cruz. DOM looks like Jay Carney. Who do you want as your spokesperson?

Anonymous said...

Any guess as to when cardinals are going to call the Shumie?

George Frobisher said...

Horace, what a wonderful blog post on Hannibal, Missouri's second-most famous citizen.

As you know, a defendant has a Sixth Amendment right to conflict-free counsel. Wood v Georgia. Wonder if some poor SOB facing a life felony charge with a registry lawyer knows about the pressures his $10 per hour lawyer has to plea him out.

Scott Saul said...

Boys, boys,

I don't want or need to be the subject. I'm just unafraid to sign my name ...unlike most of you. I commented on the POST. These "tie" comments are outside the scope of the cross-examination.

Put on your bigboy pants and move on from the whole "tie" thing. If you think wearing a tie should define a person and their profession then that's an irrationally simplstic point of view. It's amazing how there are constant comments on this blog about misogny, embarassing materialism, glorification of using controlled substances and catty jealousies but a sportsjacket with jeans at a Friday calendar call ruffles feathers?!

Anonymous said...

Rump,

What was the deal you tweeted about with the ASA and the jury in Chomat? Who was this ASA and what did he do that warranted a tweet?

Anonymous said...

This guy seemed to like Gideon too.... what say you?
http://www.washingtonpost.com/local/defense-lawyer-daum-gets-5-years-in-conspiracy-to-fake-evidence-induce-perjury/2013/03/12/275ae8b8-8b27-11e2-b63f-f53fb9f2fcb4_story.html

Anonymous said...

$20.00 per hour is too high for 20% of the attorneys in the REG building.

Anonymous said...

Nick Bosco: good, now we can try him on his OTHER arned robbery!

CAPTAIN said...



THE CAPTAIN REPORTS:

VITAE, VITAE, VITAE ....

WHITE SMOKE has been spotted. We have a new Pope.

Cap Out ....

CAPTAIN said...
This comment has been removed by the author.
CAPTAIN said...








THE CAPTAIN REPORTS:

HABEMUS PAPAM .....

The new leader of the Catholic Church is

POPE FRANCIS

JORGE MARIO BERGOGLIO,, ARGENTINA

CAP OUT ...

mamun rikil said...

JUSTICE BUILDING BLOG: GIDEON DEAD AT 50: AN OBITUARY: For those of you who are casual or non-esq readers of the blog, or for those of you who wear a black robe to work, the landmark case o...http://t.co/LNVDrDsbo4

Anonymous said...

Just had the fortune of reading Gideon's original petition to the Supreme Court in preparing to teach my class.

The only thing more fun was reading Rehngquit's opinon in Dickerson and seeing he and Scalia go at each other, throwing their own words at each other. Fun stuff. I forgot how much fun this stuff is. Boy, am I having fun.