Thursday, May 23, 2013


When we last left beleaguered Assistant Public Defender Jay Kolsky, he was the hardest working lawyer in the REGJB- a PD with something like half a million open cases (or perhaps closer to 600). The PDs drew a line in the sand and said "no more." One more case and Jay would drop like a hamster on a wheel, going no where and about to take one step too many. 

The case went to the 3rd DCA who said in formal staid legalese: "Get back to work swine", but the PDs weren't done. Jay needed to be saved. So Quiet Charlie spoke and marshaled the troops and went to the Supremes in Tallahassee. 

"Help" said Charlie, he a man of few words. "Jay can't take it anymore." (According to the opinion it took 26 volumes of court records to say what we just said in one sentence. No wonder the planet is in trouble.) 

Today the Florida Supreme Court ruled here. 

"Jay sounds like a good guy" said the court. Indeed Kolsky caught some Tallahassee love in footnotes 10 and 11 of the opinion, which are just too good not to re-print here:

10. At the time, Kolsky was the sole third-degree felony attorney covering his courtroom and had to absorb the caseload of his co-worker who left the office for other employment.

11. At the time, Kolsky had thirty-six years’ experience and was considered one of the best and most experienced lawyers in the office. 

As for the rest of the opinion, we'll summarize it here:
The PDs might be able to withdraw en masse or refuse appointment (look out Regional Counsel) if Jay is still as busy as he was when the PDs courageously said they would no longer ride in the back of the bus. 

A statute prohibiting the PDs and Regional Counsel from refusing appointment or withdrawing because of excessive case load is neither unconstitutional nor means what it says:

The court ruled:

Thus, we find the statute to be facially constitutional and answer the certified question in the negative. However, the statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or
underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances. page42image13624page42image13352page42image13080page42image12808

And yet the statute reads:

section 27.5303(1)(d) provides that “[i]n no case shall the court approve a withdrawal by the public defender . . . based solely on the inadequacy of funding or excess workload. 

So much for the ol' "plain language of the statute" rule of statutory construction. 

And finally, and in our opinion, the worst part of the opinion with the potential for far reaching consequences, the nose of the State Attorneys Office stays firmly under the tent of a motion to withdraw. Or to put it another way, the State has standing to object to your motion to withdraw. Mark our words, this has the potential, to quote Chief Justice William Howard Taft, "to be a real pain in the ass."

And so life is circular and all things often end where they begin. The case is remanded to our wonderful little circuit. Jay Kolsky will wheel a few thousand files into a courtroom and stare at them forlornly  and say that he just can't take it anymore. And now the Judge has the ability to say: "I hear you Jay...Appoint Regional Counsel." 

Next up after what has been fondly called "PD11"? 

RC3 v. State. 

See you in court. 


Anonymous said...

considering you can rarely catch a line PD at the office on the weekend, or past 3, or between 11 - 2 during lunch hours, this is ridiculous.

Anonymous said...

Mr. Jay Kolsky a man of magnanimous character. He is one of the most competent,intelligent, and charismatic men ever to grace the threshold and wells of this Court House. He is a true advocate for the people and an Attorney's attorney. He is at a place in his profession that I aspire to be one day. The spectrum of his fortitude and caliber is unmatched and a rarity at best. you should run for PD next cycle your exceedingly qualified to do so.

God Bless You Sir



I would contend with Justice Polston's in part dissent.

Moreover, “[r]emember, not a single
client of PD
11 has objected to the representation being received by him or her on
anything close to the grounds being urged by PD
11 to shift representation outside
its offices.”
at 806 n.10 .

Anonymous said...

Nice post Phil, I mean Rumpole, I mean , well with you woking for Regional Counsel, what will you do if the floodgates are opened and RC3 gets a waive of cases?

How much did Carlos have to pay that high falutant law firm to represent them anyway?

Anonymous said...

Why should we free Alex the mad Romanian Michaels. If he violated the judges order repeatedly and was out of control with his mouth then he deserves everything coming to him.

Does kolsky still work as a pd

Anonymous said...

I guess this is somewhat foretelling of how Judge Sigler's, ruling on 10/24/13 in part that Florida Statute 27.5304 was unconstitutional, might also be ruled on. So if the PD's office manages to conflict then depending upon the judges appointment, the client is back to where they started (overburdened / inefficient counsel).

We all know Tallahassee's intent is to provide token counsel.The sad part is the money is there, but allocated elsewhere by a zealous majorly conservative legislature.

D S said...

Big KUDOS to P.D. Carlos Martinez & the 11th Circuit P.D.O. in a HUGE Win in the FLA SUPREME Court on the Caseload litigation.

In the End it is a Win for the Clients.


Anonymous said...

10:32 Parker Thomson at that"high falutin law firm" has done more pro bono work than just about anyone. I bet he didn't charge a penny.

Anonymous said...

9:47, the issue with the litigation was "C" cases and "C" attorneys. The "A" & "B" attorneys do not have the same level of crushing case load as the C attorneys and tend to be a little more experience. So before you go accusing APDs of not working or being away from the office, actually come in there and check it out. People go to jails, take depositions, trials, etc. The C APDS when I was an APD were carrying on average 120 cases and sometimes 200 cases. You just can't effectively do that. There are not enough hours in the day or enough brain power. You can only set depositions between 9am-4pm on your non court weeks. So if there is an average of 5 witnesses per a C case and you have 150 cases, do the math.

John Morrison said...

Parker Thompson, and four other attorneys from Hogan Lovells, have been working on this case for over 5 years. At times their work on this case was so time-intensive they put their other, paying, work completely aside. And they did all of this pro bono. It was a pleasure to work with such consummate professionals. They deserve a medal.

Anonymous said...

Rump - why so harsh on the PDs?

Anonymous said...

I think the court ruling does follow the statute when it refers to the motion being denied "based solely on the inadequacy of funding or excess workload."
They're saying if the excessive workload results in ineffective assistance then the motion could be valid. That's not 'solely' excessive work. You could have excessive work and still do it effectively.

I have excessive work and still do it effectively. Of course there are days where I have too much time on my hands and I spend it posting blog comments and am not very effective at my work.

Anonymous said...

I just got a PCA from the 3rd DCA but, I was on the winning side so, who cares when you win?

But, that being said, trying to get Leslie Rottenberg to give a defendant a break is really hard to and now that Kevin Emas has a job for life, he's not so great either.

Anonymous said...

More stories you will NEVER read:

1. Alex Michaels given the annual FACDL award for his devotion to pro bono work for the poor and for helping with 10 different CLE presentations.

2. Daily Business review reports that local celebrity blogger Rumpole says that thanks to his random surveys, all MJB judges now in trial every single Friday afternoon at 4:30 pm.

3. Miami Herald ace reporter O'Valle reports that brand new lawyer, Alex Michaels, Jr. was held in contempt on his first day on the job as a public defender.

4. Florida Supreme Court gives Coral Gables lawyer Jack Thompson award for being champion of free speech.

5. Florida Legislature passes law mandating that all assistant public defenders have no more than 10 cases on their audit.

6. U.S. Supreme Court Chief Justice Milton Hirsch pens 350 page opinion that quotes William Shakespeare over 200 times.

7. Florida becomes last state to legalize gay marriage by 51 to 49 margin.

8. Florida Legislature passes law decriminalizing DUI. Catalano and Reiff open Taco stand outside courthouse.

Anonymous said...

My sense of the PD situation is not so much that they are overworked -- but that they are underpaid.

While PDs may only work 40 hours, most only earn about $40k. One might be tempted to suggest that, given their hours, that is more than fair. But keep in mind, they cannot take other clients on the side. So unless they have a wealthy spouse, there is no future in staying past a year or two. The scandal Tallahassee needs to address is not so much that PDs work 100 hour weeks and still never get a chance to meet their clients; it is that no decent lawyer over the age of 25 can afford to be a PD.

I support and applaud Carlos's victory here, but I see the more pressing issue being one of salary, not caseload.

Rumpole said...

I don't really mean to be harsh on the PDs. Was the post smarmy? Sure. But I didn't want to be seen as attacking them.

Anonymous said...

Rump hates Carlos so Much he must have Been rejected By the PD at some point.

Rumpole said...

Ive been rejected by better many times.

Anonymous said...

I took the shumie around 1 pm today. I know the new rules won't let me say what happened after that. But I'm pretty happy now. Bless Shumie time.

Anonymous said...

tDS - what the fuck are you talking about that this is a win for the clients? If the PD is allowed to conflict off of 3rd degree felony cases, then the cases are going to end up with RC3. Then RC3 lawyers, who also have private practices, are going to end up with ridiculously high caseloads. And then RC3 lawyers are going to either do minimal ineffective work or are going to themselves conflict off the case. Then the cases will go to PCAC lawyers, who will only be able to bill for $750 for a third degree felony case. How much time and effort do you think the PCAC lawyers are going to put into these cases for $750?

This entire thing makes me sick really. I understand the principle of effective representation. But the PD's have so much loose baggage sitting around doing no work give me a break. Give some cases to Rory. Give some cases to Carlos. Give some cases to Guy Robinson. Give some cases to the training attorneys. Get real.


Anonymous said...

Really, Phil, I mean Rumpy. What has Carlos Martinez ever done to you? I find him to be a rather nice guy.