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 !!!!!