CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, July 10, 2010

Guest blogger Robert C. Boruchowitz: On Public Defenders and Excessive Caseloads

Boruchowitz robert By Robert C. Boruchowitz, Director of the Defender Initiative and Professor from Practice at Seattle University:

The Florida Court of Appeals this past week reversed a trial court order that would have allowed a public defender to withdraw from a single case because he was not able to work on the case because of his excessive caseload.  Florida v. Bowens, No. 3D09-3023 (July 7, 2010).

Even though the lawyer had more than 100 open felony cases and 900 per year, and had done no work on the case, the appellate court found that the defender had not demonstrated prejudice to the client “separate from that which arises out of an excessive caseload” and that by statute, such an argument was not permitted.

The court also found that neither the defender nor the trial court “has demonstrated that there was something substantial or material” that the defender attorney “has or will be compelled to refrain from doing.”

The court wrote that if it upheld the trial court’s order,

all that the PD11 [the Miami-Dade Public Defender] must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights.

This case is disturbing on many levels.  The court impliedly did not accept the ethical integrity of a defender lawyer or office that asserts an inability to provide competent representation.  It ignored the factual findings of the trial court. And it refused to confront the constitutional implications of a statute that would force a defender to represent a client even when overwhelmed by cases. Instead it kicked the issue up to the state supreme court.

Florida has a statute that provides:

(1)(d) In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely on the inadequacy of funding or excess workload of the public defender.

Fla. Stat. Section 27.5303(1).

The appellate court certified to the state supreme court the question whether the statute violates an indigent client’s right to  effective assistance of counsel  and is a violation of the separation of powers as legislative interference with the judiciary’s inherent authority to provide counsel and the Supreme Court’s exclusive control over the ethical rules governing lawyer conflicts of interest.

The court should simply have found that the statute is unconstitutional because it requires lawyers to violate their ethical responsibility to provide competent representation and it seeks to prohibit judges from granting appropriate relief to lawyers who are overwhelmed by excessive caseload.

The appellate court also looked the other way in reviewing the trial court’s findings, and did not refer to them specifically. The judge had found that the number of cases assigned to the defender [Mr. Kolsky] “had a detrimental effect on his ability to competently and diligently represent and communicate with all his clients on an individual basis.” Florida v. Bowens, Case No. F090019364,Eleventh Judicial Circuit Court, October 23, 2009.  It noted that this begins at arraignment where the defender holds brief conversations, usually not confidential, with clients he is meeting for the first time.

Mr. Kolsky had between 105 and 164 pending felony cases during 2009.  In fiscal year 2008-2009, he had handled 736 felony cases in addition to 235 pleas at arraignment. Because of his caseload, he cannot meet with in-custody defendants until two months after arraignment, and then usually only for 30 minutes. The judge found that “The unrebutted testimony is that Kolsky has been able to do virtually nothing” on the case for which he was seeking an order of withdrawal. His only meeting with the client was at arraignment. He had not investigated the case or discussed discovery with his client. The client was facing a possible life sentence as an alleged habitual felony offender.

The trial court in analyzing the statute and a previous court of appeals decision wrote:

[T]here exists a cognizable difference between a withdrawal based solely on workload, and a withdrawal where an individualized showing is made that there is a substantial risk that a defendant’s constitutional rights may be prejudiced as a result of the workload. This distinction allows for judicial relief where prejudice to constitutional rights is adequately demonstrated.

The judge found that given that because of his workload Mr. Kolsky had not been able to investigate the case or file any motions and had had to request a continuance, giving up his client’s speedy trial rights, Mr. Kolsky had made the required individualized showing. The Court of Appeals ignored this finding.

Contrast the Florida court’s approach with that of a trial judge in Mohave County, who after finding that the public defender’s caseload prevented effective assistance of counsel, wrote that in the future, motions to withdraw need not be accompanied by hundreds of pages of exhibits or extensive legal citation, but that its policy would be “to grant motions and sign appropriate Orders based upon the briefest possible reference to this Order, not to exceed one sentence in length.” Arizona v. Lopez et al, Case No. Cr-2007-1544,Mohave County Superior Court, December 17, 2007

The Mohave County judge, having heard a three-hour evidentiary hearing with expert testimony and reviewed many documents, respected the public defender’s integrity in presenting motions to withdraw based on inability to provide effective representation. The Florida Court of Appeals, despite the record its trial court had made after evidentiary hearings and legal argument on three different days, rejected such an approach.

The caseload Mr. Kolsky carries is staggering and unacceptable. The trial judge recognized that and allowed him to withdraw in the single case presented to him. The Florida Court of Appeals had previously required that challenges to a defender’s competency to proceed must be resolved on a case-by-case basis, not by a challenge to the office’s ability as a whole.[1]  When the office did present such an individual case challenge and the trial court granted the motion, the Court of Appeals ignored the reality and the denial of rights to Mr. Kolsky’s client.

The Florida Supreme Court should rapidly reverse the Court of Appeals and grant the Miami-Dade Public Defender’s office the relief to which it is entitled in order to represent its clients effectively.


[1] State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010).

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It is a sad state of affairs when Justice is nonexistent. There is a wholesale denial in Florida of real and pervasive problems whereas courts defend their integrity with worthless diatribe.

The Offices of the Public Defender do not have the resources to fulfill their duties. Some assistant Public Defenders carry caseloads impossible to meet. People are pleading simply to get out of jail, not becuase they admit guilt, but because the excessive delays in the courts due to congestion. No more is the creed "innocent until proven guilty", it has been subverted into "guilty until proven innocence". People are actually held in jail until the expiration of the maximum sentence for their alledged infraction, before even having a hearing on the charge.

A defendant that complains that his Public defender stated that the workload prevents his providing even minimal constitutional assistance is thought delusional, but that is simply a self evident truth. And the substandard conflict attorney's, who operate simply to get some minimal flat fee too dispose of a case, how can that be equated to deliver justice?

For a appeals court to tell the Public Defender, that not accepting 3rd degree felonies except on a case by case basis is blatantly incredulous, for that adds a layer of overheard to his already crowded caseload.

The courts in Florida are simply insane or grossly in denial.

Posted by: Stephen O'Leary | Feb 1, 2011 10:22:07 AM

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