PDs Office Challenged Criticism Years Ago
BY BUDDY NEVINS
Fort Lauderdale lawyer Ralph Behr has been attacking the Public Defenders Office for years.
After I posted a widely-distributed memo from Behr yesterday, the following letter was e-mailed to me.
It lays out the PDs Office’s position concerning allegations they solicit clients and don’t check whether they are poor enough to qualify for free representation.
I removed the defendant’s name.
I thought you would be interested.
Here it is:
August 21, 2007
Ralph S. Behr, Esq.
888 SE 3rd Avenue, Suite 400
Fort Lauderdale, Fl 33316
RE: Mr. X, Case Number XXXXX
Dear Mr. Behr:
Mr. Finkelstein provided me your letter of August 10, 2007 and asked me to respond. Your letter suggests that our office is soliciting clients in violation of Florida Bar rules.
I take exception to the statement that the Public Defender is engaged in the unauthorized solicitation of clients. FRCrP 3.111 mandates that counsel shall be appointed to an indigent defendant “when the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at the first appearance before a committing magistrate, whichever occurs earliest. Also, pursuant to F.S. 27.52, “if the person seeking appointment of a public defender is incarcerated, the public defender is responsible for providing the application to the person and assisting him or her in its completion and is responsible for submitting the application to the clerk on the person’s behalf.
The Public Defender and its Early Representation Unit have tried very hard to make sure that only the un-counseled indigent are appointed the Public Defender. The first questions asked of a defendant are do you have a lawyer, can you afford a lawyer or do you have any money for a lawyer? Only when the answer is no does the Public Defender interviewer ask the question do you want the services of the Public Defender and, if the answer is yes, begin the application process as is mandated by law. There have been many cases where a person has declined the services of the Public Defender. There have also been many cases where a person has requested the services of the Public Defender and the clerk has determined them to be Not Indigent.
We accept the information that is filled out on the application at face value and are not required to investigate its accuracy. I find it ironic that you complain about this office’s failure to investigate a client’s representations about their finances, yet you admit in your letter that you did not verify his representations to you. I do not know if Mr. X lied on his application(s) for the Public Defender, but if he did lie, our staff is not responsible unless they knew about the lies and participated in the deception. Nowhere in your letter do you state that Mr. X told you that he informed the Public Defender about his hidden assets.
As far as Mr. X’s case is concerned, he was magistrated in person in open court before a domestic violence division judge. In reviewing the clerk’s office file, it appears that Mr. X filled out two separate applications for the Public Defender. The first one was on January XX, 2007 where the clerk declared him to be indigent. Subsequent to that time, Mr. X hired a private attorney and we withdrew. Then on June XX, 2007, there was a determination of counsel hearing after the court granted a privately retained attorney’s motion to withdraw. Mr. X filled out a second application for Public Defender, wherein he was declared indigent again. Apparently, after getting a public defender for the second time, Mr. X decided to go out and try and hire another private attorney.
The bottom line is that your letter makes three false assumptions. First, that assisting a person who requests the services of a public defender is soliciting business. That is not the case and in fact we are required to do so by law and rule. Second, you believe that assisting someone in filling out the application is somehow criminal if the applicant lies. That would only be true if the public defender employee knew of the falsehood at the time. Third, that the Public Defender has an affirmative duty to verify the information provided by the applicant. Again, this is not true.
I trust that after you have had the opportunity to review the rules and statute cited, you will see that our goal is not to represent non-indigents. Our goal is to comply with the law and make sure that unrepresented indigent defendants do not sit in jail unrepresented.
Contrary to what you write in your letter that you want to avoid this office any embarrassment, I believe your goal is to try and intimidate this office into ignoring our responsibilities under the law. I believe that you and others are upset that the Public Defender started providing timely representation as is required by law right after an arrest and not six weeks after an arrest, which was the way it was done for many years prior to Mr. Finkelstein taking office.
Last year during a public meeting of Broward County’s Public Safety Coordinating Counsel, Eric Schwartzreich, the President of the BACDL stated publicly that the Public Defender’s policy of seeing clients right after their arrest and inquiring of their indigency was bad for business and asked us to allow those individuals to sit for a few days without counsel in hopes that they would come up with money to retain private counsel. I told Eric then what I’m telling you now, that this office will not ignore the law and allow indigent defendants to remain in jail unrepresented.
While we are sympathetic to the private bar’s need to make a living, we cannot aid the private bar at the expense of our indigent clients. We will continue to comply with the law and provide zealous representation of indigent defendants that is demanded by the constitution.
Sincerely,
Steven Michaelson
Chief Assistant Public Defender
CC: Howard Finkelstein, Public Defender
January 27th, 2010 at 5:40 pm
A very professional response that should put a rest to it.
January 27th, 2010 at 6:15 pm
Wow. Great letter. Sure spells out the position of the Public Defender.
Yes, there will be a few people who will lie on their application and get the services of the public defender. And yes, that will cost the taxpayers a little money. But common sense says it will cost a lot more money to verify the tens of thousands of applications just to try and catch a few cheaters. That makes no economic sense. The courts currently have the ability to award public defender fees and if a defendant has money, the government can, if they choose, go after them to collect those fees.
Mr. Behr – You sound like a desperate man who needs more clients to make ends meet. Do what I did – start taking cases in other fields like divorce, PI, etc. You’re not too old to learn new tricks.
January 27th, 2010 at 8:14 pm
The letter from Steven Michaelson Chief Assistant Public Defender reads:
“The first questions asked of a defendant are do you have a lawyer, can you afford a lawyer or do you have any money for a lawyer? Only when the answer is no does the Public Defender interviewer ask the question do you want the services of the Public Defender and, if the answer is yes, begin the application process as is mandated by law.â€
Florida Statute 27.52(1)(c)2 reads as follows:
“2. If the person seeking appointment of a public defender is incarcerated, the public defender is responsible for providing the application to the person and assisting him or her it its completion …â€
The statute does not state that if a person is incarcerated the public defender shall approach the person and ask the incarcerated person: do you have a lawyer, can you afford a lawyer or do you have any money for a lawyer? And if the answer is no ask the question do you want the services of the Public Defender and, if the answer is yes, begin the application process.
The work “seeking†means to search for or ask for, to seek to obtain.
When the Public Defender asks; “ do you have a lawyer†and then follows up a “no†answer with “can you afford a lawyer†and if the answer is no follows with â€do you want the services of the Public Defender?†is that not soliciting?
The Public Defender should follow the statute. If a person is seeking appointment of a Public Defender then and only then should they provide and assist. The Public Defender’s letter is exactly my point: they are soliciting in the jails, which is wrong.
January 27th, 2010 at 9:44 pm
Mr. Behr – So you would have the weakest of the weak of our citizens who are in jail, many of whom can’t read or write, many of whom have mental illnesses be required to ask for assistance. You forget that our rules of criminal procedure require the courts to make sure all incarcerated persons have any attorney and the failure to ask is not a reason to deny them an attorney.
You also haven’t read: 27.59. Access to prisoners.–The public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant regional counsel shall be empowered to inquire of all persons who are incarcerated in lieu of bond and to tender them advice and counsel at any time, but the provisions of this section shall not apply with respect to persons who have engaged private counsel.
That’s a state law. The legislature says the PD’s are empowered to inquire. That means the Florida Legislature believes that inquiring is just fine. Inquiring is not soliciting no matter how much you believe it to be so. What say you now, Mr. Behr?
January 27th, 2010 at 9:54 pm
Oops. Looks like Behr stepped in sh*t. Don’t know how he’s going to dig his way out of that. He tries to twist some words and says the public defender must follow the statute. But he must not have known about the other statute that tells the PD’s to do exactly what they are doing. Maybe Behr can run for the legislature and change the law to benefit him.
Behr – I think you should quit responding before you make yourself look even more foolish. The state statutes are pretty clear and your detractors haven’t yet posted the rules of criminal procedure, which I suspect will make you look dumber than you already look.
January 28th, 2010 at 11:33 am
Think the PD’s so high minded? Follow the money….
Each applicant for a Public Defender pays a $50.00 application fee.
The Clerk of the Courts collects it and turns it over to the Public Defender.
The Public Defender gets $50.00 of the $50.00 application fee. Years ago the Clerk got some of it, no more….
Now follow the money…..
On January 26, 2010 the Broward Sheriff’s Booking Register reports 184 new inmates. The Public Defender’s Early Representation Unit earns $50.00 for each inmate that applies for a Public Defender. They don’t return the money if the applicant is denied.
Do the math: 184 inmates, multiplied by $50.00 each: equals $9,200.00 for ONE DAY. That one day, January 26, 2010, is one of 365 days a year.
Wow! If the Early Representation Unit is really aggressive and gets all of the new inmates to “applyâ€, every day, 365 days a year: the total approaches $3,358,000.00
If they get one half of the inmates to “apply†it’s close to $2,000.000.00.
By some estimates the Public Defender represents over 85% of all criminal defendants in Broward County. Follow the money….
And then there’s the split.
Years ago the $50.00 application fee was shared with the Clerk of the Courts. No more.
The Public Defenders had the law changed so that they would no longer have to share the $50.00 with the Clerk of the Courts. Now they get all of the money, and they don’t have to check the financial affidavits, they just turn it in. And they won’t inquire if the applicant has financial resources not revealed in the affidavit. It’s not their job, so they say.
Its all about money, and lots of it. It has less to do with the poor and downtrodden, it has everything to do with money.
Still doubt it? Where was the Early Representation Unit before the Legislature changed the law to give the $50.00 to the Public Defenders Office? It didn’t exist.
We don’t give the police a $50.00 fee for each arrest.
We don’t give a judge a $50.00 fee for each trial.
But we DO give the Public Defender $50.00 for each “applicantâ€.
It is bad policy to give an incentive of $50.00 for each newly arrested person to apply for the Public Defender. And it shouldn’t be inside the jail during the first hours of their arrest.
And we shouldn’t confuse why the Public Defender is so aggressively approaching newly arrested citizens in jail within hours of their arrest. It’s all about the money.
The solution is:
The $50.00 should go to the Clerk of the Courts and be used to do a financial inquiry similar to what a landlord does with a prospective tenant, or a car dealer does when I go in to buy a new car. We are dealing with taxpayer money. There should be some accountability.
January 28th, 2010 at 1:22 pm
@AttorneyRSBehrResponds
You sound like a nitwit titling yourself in this manner. Do you really walk around referring to yourself in the third person.
As to your point, I object – speculation.
Yes, Ralph, if every person who went into the jail applied for a public defender and actually paid the fee, there would be millions of dollars for Howard Finkelstein and his Chiefs to pour into a swimming pool and do laps.
And if your mother had wheels, she’d be a wagon.
Ralph, you’re supposed to be a lawyer. Where’s your evidence? If you’ve had this outrage for years, where is your public records request to the PD’s office to see how many defendants have paid the $50.00 fee?
If you think that the PDO is raking in the dough on $50.00 per defendant, whether they later qualify or not, you are more cracked than your posts make you out to be.
And the fact that you bring no evidence other than math based on a possible, could be, might be, hypothetical weakens your argument even more.
You’ve had 2 years since you brought this up to do a PRR and what have you actually done other than write a few times about it….Oh yeah, that would be JACK and SQUAT.
You still haven’t answered the underlying question posed in response to this years ago —
An individual is arrested and brought to the jail.
How long should they be forced to sit in the clink before they are approached to ask whether they have hired a lawyer, can afford an attorney, or want to talk with the public defender?
A day?
Two days?
A week?
All the way through arraignment?
I was an APD for several years. IC Defendants sat in the jail for weeks, got brought to Court for their arraignments and, for the first time, got asked whether they could afford an attorney and, if not, were appointed a public defender to represent them.
That’s potentially WEEKS of sitting in jail, presumed innocent of what that human being is accused of, for NO REASON other than they were poor to bail out, too poor to hire a lawyer, or potentially too mentally ill to fully understand what is going on.
So now, after waiting weeks sitting in jail to be arraigned and have a lawyer assigned to their case, they have a few choices:
1.continue to sit there until their PD can seek a reduction of bond, etc. on the case
January 28th, 2010 at 1:27 pm
Continuing on due to space:
2. They can plead out their case hopefully for time served (several weeks) regardles of whether they are in fact innocent, just to get out of jail and avoid more punishment because they are poor and can’t bond out.
Ralph – if you have ACTUAL EVIDENCE that PD Employees are knowingly assisting defendants in falsifying affidavits (pre-filling out forms with zeros, etc.), then bring it forward.
But if your only beef is that the PD employees go into the jail to ask people before they start rotting in jail whether (1) they have a lawyer (2) they can afford a lawyer or (3) whether they want to apply to have the PD appointed, then you are basically saying what Howard accused the former president of the BACDL of saying —
Can’t you just let these people sit behind bars for a few days to give them the extra incentive to have someone come up with money to get them a lawyer.
What constitution are you reading Ralph….because I don’t remember one that said your rights wait a few days to see if someone you know can hock their possessions to hire a private attorney.
PUT UP OR SHUT UP.
January 29th, 2010 at 1:22 pm
What SpeaksofSelfinThirdPerson said
Q4T
February 3rd, 2010 at 7:32 am
America would be a much better place if we didn’t have lawyer.