ABA Journal


The National Pulse

Miami-Dade’s overburdened PD’s office may decline new clients, Florida court says

Oct 1, 2013, 08:50 am CDT


“Prosecutors don’t have the luxury of petitioning the court and saying, ‘Gee, sorry, we’re not going to prosecute cases anymore because we’re just too overburdened.’ ”

Actually, they do. It is called prosecutorial discretion.

By Fozzy on 2013 09 24, 3:21 pm CDT

@1: I agree. Prosecutors can make the simple choice of prioritizing the most important cases and dropping the less important cases. If they are forced to do that, then they should make sure that the legislature is aware of the problem.

The legislature can respond by properly funding their ridiculously punitive criminal justice system or they can respond by bringing some sanity back to the system.

By Island Attorney on 2013 09 24, 10:04 pm CDT

And in other news, there are thousands upon thousands of law graduates each year, eager to do this work, but who are not given the chance.  So on one hand, we have a group of people who have so much to do, they cannot keep up with the caseload.  And on the other hand, we have a bunch of people who are practically begging to be allowed to participate in the profession but aren’t being allowed to do so because there is no work.  Something’s wrong here…

By Something's Wrong Here on 2013 09 25, 3:05 am CDT

Scott Burns, executive director of the NDAA, purportedly points out that the prosecutors are also suffering from this money crunch.  What he (willfully?) omits is that the prosecutors have a built in investigative arm—the police departments—and have on-staff resources for expert reports and testimony not included in their budgets (psych professionals, chemistry labs, et cetera).  Court-appointed counsel has to ask the court for money for each of these things, and may not get approved in the judge’s discretion, even as the prosecutors have (as Fozzy pointed out) chosen in their discretion to CREATE this caseload. 

I’ve been doing criminal defense work for a number of years now, and I have NEVER heard a prosecutor say “well we wanted to bring in a psych expert and investigate these other three witnesses, but the court just wouldn’t approve the funds.”

By Jay Hurst on 2013 09 25, 1:44 pm CDT

The right to effective representation when charged with a crime is a right guaranteed in our Constitution. The right to effective prosecution isn’t. If public defenders are unable because of workload to provide what the Constitution guarantees every person charged with a crime then some change is needed.

By stu on 2013 09 25, 1:53 pm CDT

It is a shame that the public, and the government, do not believe in defending someone accused of a crime.  Prosecutors can decline to prosecute any time, and at any stage they choose.  The press is quick to print that someone was arrested and charged, but rarely tell of the people who are acquitted, or have their case dismissed.
I am a former prosecutor and public defender in NY, so I have seen both sides of a criminal case.  It is very obvious that when a defender is overworked, resources over extended, and over burdened with a heavy case load, they cannot give their fullest attention to each case.  This means that some defendants suffer.
It is clear that more funding is needed to insure that justice and fairness is applied to all.

By martin marshak on 2013 09 26, 2:11 pm CDT

There are a lot of attorneys who would like work in response to Something’s Wrong Here. There are a couple problems. Most of them want to get paid for their work and the crisis in Public Defenders’ offices isn’t the lack of people who would like to do the work, it is the lack of funds to pay them. Second, I would not like to see a recent graduate representing someone on a criminal case with complex forensic evidence or on a murder case with a couple eyewitnesses (the weakest evidence). I know if Something’s Wrong Here were charged with any crime he would like competent representation as would I.

By Stu on 2013 09 26, 4:09 pm CDT

I agree, Stu w/ your comment regarding the need for trained attorneys.  The problem is, if you don’t train the next generation, you don’t have trained attorneys for the future.  What happens when the current supply of trained attorneys runs out?  Do we just shrug our shoulders and say, “oh well - should’a trained them a decade ago - now we’re up a creek?” So, who is going to have the experience to do the complex cases you mention ten or twenty years from now, when our current graduates haven’t had the chance to learn the skills necessary to prepare them for the future?

And as for your comment pointing out that the problem is there is no money - thanks for pointing out the obvious.  (I of course thought we were rolling in the dough because I’ve had my head under a rock for the last ten years and never heard of things such as the recession, or the sequester.  But hey, thanks for clarifying!)

I, however, was remarking on the fact that there seems to be a problem.  If we had the money, I would be saying: “something’s right here…”

By Something's Wrong Here on 2013 09 27, 2:35 am CDT

Training is easily done. Law schools do little to train people to be practicing lawyers. When new lawyers are hired they are assigned to misdemeanor courts and work with more experienced attorneys. That is how its done and it doesn’t take a genius to figure it out although for Something’s Wrong Here I guess I have to explain it. Yet this same person claims: “And on the other hand, we have a bunch of people who are practically begging to be allowed to participate in the profession but aren’t being allowed to do so because there is no work. ”  I know most public defender offices would love to increase their staff, to give those attorneys looking for work jobs so the caseloads would be reduced and more time could be spent investigating and preparing cases yet they can’t. What’s wrong is there isn’t the funding to do it. If it was so obvious Something’s Wrong Here wouldn’t have made the original comment.

By stu on 2013 09 27, 12:21 pm CDT

I guess you’re not getting my comment, Stu.  Perhaps you should go to another website where reading comprehension isn’t required - try checking out Marvel Comics.  That might be a little easier on you.

And thanks again, for pointing out that there has been an economic crisis for the last few years, which is why no one has been hiring for the last few years.  Silly me - I thought we weren’t hiring all those new attorneys because we had too much money!  What a genius, Stu, to make the connection that lack of finances means lack of hiring - no one else has made that connection before.  After checking out Marvel Comics, you should run for office!  Thanks for sharing your genius on this board.

By Something's Wrong Here on 2013 09 28, 7:05 am CDT

Having worked in Miami I can say, without any hesitation, that the numbers floated by the PDs office are complete bullsh#t. No PD has “400 felony cases at a time” and “50 third-degree felony trials a week.” The C-PD (in Miami we have A,B, and C prosecutors and PDs; the letters correspond, in descending order, to the severity of the felony) handles all the 3rd degree felonies (mainly dumb stuff like cocaine possession and driving on a habitual-traffic-offender license suspension). There are tons of 3rd degree felonies but almost all of them plead/are dismissed at arraignment, and about 99.99% plead before trial. The PD’s office loves to inflate the numbers of clients it has by counting as “clients” all the people who are assigned PDs at jail arraignment. The majority of those folks will not go on to have the PDs office represent them, but the PDs office still claims them when they’re complaining about a lack of funding. Sure 50 (or more) 3rd degree felonies are “set for trial” in a C-trial week (we rotate trial weeks), but usually ZERO go to trial.  If you camp out at the Gerstein Justice Building for two months, odds are good that you won’t see a 3rd degree felony go to trial. Here’s how the conversation between PD and the “client” goes (Read: homeless crackhead with four pages of priors):
“So you’re got 16 previous convictions for possession of cocaine, do you want CTS on this new possession of cocaine?. Yes? Ok. Your Honor, my client wishes to take the deal. I must say for the record that this is against my advice since I have not had any time to explore defenses that may be available to him.”
  As far as this “400 felony cases at a time” nonsense, that is total fiction. An A-PD has maybe 50 cases. A B has around 100-150, and a C has (as noted above) hundreds of bs felonies that don’t go to trial. Those C level offenses are seen as misdemeanors in Dade county and the only folks doing any amount of time for one are: a) on probation; or b) score state prison because they have incredibly long records and are the type of people who don’t care about doing 60 days in jail (yes they’re theoretically punishable by up to five years in state prison but that just doesn’t happen in the 305).
The PD’s Office in Miami does a great job, and the folks handling the real felonies are by no means overworked. Most people I know who are A and B PDs work less than 40 hours a week and don’t come in on weekends. It is a polite fiction that the PDs office is overworked, and that if they just had more resources they’d be out their combing the streets to prove that Shamblebum McHomeless really didn’t possess that lump of crack.

By Ryry on 2013 10 02, 2:13 pm CDT

@1 + @4:  I squinted when I read your posts ... as a prosecutor let me throw my two cents onto the issue that you’ve both commented on. 

@1 (Fozzy) - you remark that prosecutors can lessen their case load by prosecutorial discretion.  We cannot reduce the crime committed nor can we reduce the number of reports that are submitted to our office for review.  There is a lot of crime out there - as defense attorneys are aware because they’re affected just as we are in representing a portion of those charged.  Some defendants don’t qualify for a PD or a court appointed attorney because they are not financially qualified or the crime isn’t severe enough (depending on each state’s own law of course).  So PD’s are only seeing a portion of the cases prosecutors are responsible for reviewing and charging.  Now to the point I really wanted to make—if I, an overworked prosecutor, dropped the less severe cases to focus the necessary time on the heavier ones, I would be read the riot act twice over by my boss, police, victims and the community, and most likely lose my job. In the interests of justice we cannot drop or underplea the lesser severe cases because there are “bigger” cases to focus on.  We suck it up and keep the flow of cases moving.

@4 (Jay Hurst) Dude, you’re killin’ me.  You write: “prosecutors have (as Fozzy pointed out) chosen in their discretion to CREATE this caseload.”  Well no. Seriously - because I bring reports home every night and on the weekends to keep up with my caseload.  As I said, I cannot “drop” or underplea cases and I certainly wouldn’t “create” this caseload for myself. I’d really love to see my family more often than i’m able to now, or go hiking, or attend my best friend’s wedding without a briefcase in tow to work on my cases after the rehearsal dinner.  But I guess I created this mess, so i’ll desist.  You also note that we have built in “investigative arm” which I read, in part, to mean that we have indispensable resources.  We don’t.  Like PD’s, we have to petition for funds for things like demonstrative evidence and experts.  This is because each district is provided a budget each fiscal year.  That money comes from the taxpayers and it’s not pliable.  If we go over our budget, we’re up the creek without a paddle.  So anytime we need funds, it has to be justified and we have to submit a petition to the DA who then submits this to our county commissioner.  If I need a blow up poster to illustrate an eagle eye view of a neighborhood, I have to petition for the $50 that this is going to cost.

By A Prosecutor on 2013 10 04, 10:17 am CDT

@12 ((anonymous) Prosecutor) - I certainly didn’t mean to kill you, dude.  I also don’t suggest that underling prosecutors have much control over the process—other than, of course, the decision to be a prosecutor.  But (a) individual prosecutors’ charging decisions DO drive the system, and our system is based upon overcharging and Brady gamesmanship in an effort to extract pleas and the waiver of every possible right to obtain felony convictions (for example, the dreaded “appeal waiver”); (b) prosecutorial lobbyists around the country (in the Federal system, the DOJ’s “Legislative Affairs” Division) have been largely responsible over several decades for the massive criminalization of daily life, and the one-way upward ratchet of sentences that have overstuffed our courts, and our prisons. 

There is no principled way to portray prosecutors as victims of the system.  Prosecutorial agencies are one among several drivers of our prison-industrial complex.

Further, I’m curious where you practice that you have to petition funds from the courts—unless you ignored my point that these resources ARE available to prosecutors, within the budgets (vast budgets, compared to PD offices) made available by government, and approved by division chiefs.  You have to ask permission from your bosses, perhaps, but I sincerely doubt you’ve EVER asked a court for money for an out-of-state investigator and been denied the “extravagance” of preparing your case. 

You don’t generate sympathy amongst other lawyers by citing the sacrifices we ALL make for our callings.  You also don’t make your case by being snide (“But I guess I created this mess, so i’ll desist.”).  To the contrary, these two pieces in an otherwise functional post illustrate either a naivite, or an arrogance, and either way you evaded the point I made—that prosecutors’ offices DO have greater resources than the average PD’s office, and they also have COMPLETE control over charging decisions, and criminal enforcement priorities. 

Perhaps prosecutors would be wise to heed former AG Michael Mukasey, who famously said:  ““Not every wrong, or even every violation of the law, is a crime.”  Certainly not every violation is worth expending prosecutorial resources on.

Prosecutors making general policy and short-sighted “tough on crime” politicians are to blame for over 4,000 crimes in the U.S. criminal code alone.  That prosecutors have limited budgets to ride that elephant they created is a far different thing from an AFPD handling hundreds of cases per year, based only on the money that a court is willing to provide.  If I need to get that $50 poster you reference, I have to convince the judge overseeing my trial why I need it and hope the ex parte motion notably absent from the docket doesn’t tip off the prosecutor.

By Jay Hurst on 2013 10 05, 4:08 am CDT

I see that you favor pleading out third degree felonies 99% of the time. CASES YOU CALL DUMB STUFF. Interesting. No depositions in C cases means that in cases where there may be a real issue, the APD cannot be properly prepared. As you know, a felony record is a major barrier to real employment but that does not seem to trouble you.  I worked in the Miami-Dade Criiminal Justice on and off since 1965 till recently and sat as a senior judge in 1/2 of the Felony Divisions, and got a picture of defense practice. The problem is that systems adjust to caseload and resources. As the resources decline and case load grows things get worse. Many of the best APD struggle to leave the PD for many reasons and workload is one.  If you were charged with a third degree felony would you stick with a APD or find in the $ for private lawyer? Sure you might go with
the PD since third degree felonies are “DUMB STUFF”. I take it you no longer work for the PD. Since the A case APD’s are not over worked, I guess that you would save the expense of private counsel if you were charged with a first degree felony. By the way Ryry, I guess you want to keep your identity secret.

By Judge Charles D. Edelstein (Ret.) on 2013 10 12, 12:46 am CDT

Ryry, what do you have to say?

By Judge Charles Edelstein (ret.) on 2013 10 12, 9:22 am CDT

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