I hear the question every week in my office. Why should I hire you and not just get a free lawyer through the Public Defender's Office. It is a great question that I wish I was asked more often. To answer the question you must first understand what a Public Defender is, WHO should be able to get that type of assistance, and what to expect if you are represented by the Public Defender. Each of the twenty judicial circuits in Florida has its own elected public defender responsible for representing people who face the loss of their liberty and are determined by the court system unable to pay for a private counsel. The Public Defender's Office is appointed by judges to represent those clients in criminal, juvenile and mental health matters in Florida's courts. For years though, Florida's Public Defender's office has been underfunded and overwhelmed with record caseloads. The cases are stacking up and the resources to help these cases are sparse.
Since Gideon v. Wainwright in 1963, anyone that was arrested and charged with a felony possessed the right to an attorney; if the defendant was evaluated as indigent, it is the responsibility of the state to provide an attorney. Our taxpayers' money is paying for indigent individuals who cannot afford an attorney, but with recent state funding being cut, the Public Defender's Office is struggling with less money and too many—sometimes double— cases. In September 2009, Miami-Dade County's Public Defender's Office attempted to decline all new non-capital cases because of the overwhelming caseloads. The state eventually ruled that the defender offices had to share the burden of falling revenues.
Defendants are typically required to fill out an affidavit to apply for the services of the Public Defender. The clerk or the Judge is charged with scrutinizing these applications to see if the person is truly indigent. It is my personal opinion that our Judges and clerks have failed in this process. It is necessary that the Public Defender appointment applications received from criminal defendants be scrutinized in order to save our funds and resources for the individuals that truly need the state's help. Many times judges appoint the Public Defender's office if an accused individual simply requests it to help push cases through the court system. It is understandable because the dockets are completely full and the Judges are under pressure to move cases. But not all applications are entitled to the Public Defender's help and the taxpayer's money that fund this privilege and that should only be granted to true indigents.
This common practice hurts all involved. Our Public Defenders in this area are outstanding attorneys who care about their clients, but they are totally overworked and do not have the necessary time to invest in each case. This affects the kind of representation they can offer. Often I hear complaints from defendants that they are unable to meet with their Public Defender or don't truly understand what is going on in their case. Many times they don't meet their attorney until their arraignment which is often 30 days after their arrest. In that time critical decisions are being made by the State Attorney's office while no one is advocating for you or offering your potential defense. If you are charged with any crime you should know exactly how you case could impact both your present and your future. You should never enter a courtroom without knowing what is likely to happen in your case.
Not only does this affect the state's funds to criminal justice and court systems, but it also hurts private law firm practices throughout the state who are severely damaged by the lack of clients. If Judges are appointing the Public Defender to everyone that asks without scrutinizing the affidavit they are harming private practitioners and continuing to burden a budget that is about to break. Subsequently, these private practices are closing and the clients continue to suffer with inadequate and overburdened Public Defenders with several other cases. With a larger caseload, Public Defenders are at a bigger risk to making mistakes with capital cases and very dangerous criminals. It is simply not working. The Constitution ensures a right to counsel, but that doesn't mean an individual charged with a crime should not have to pay for it if they are able to do so.
There are people trying to find solutions. This year, House Speaker Dean Cannon has proposed a plan with new funding formulas for prosecutors and public defenders. Cannon recognizes the unfair budget cuts and fewer resources to prosecute and defend individuals seeking the Public Defender's help. These new formulas would base state funding on population and workload. But with these new formulas, better-funded circuits in areas will suffer: key programs could end and experienced attorneys could be forced to leave because of lower pay. It is a never-ending cycle. Cannon suggests an additional $34 million in state funding for these hurt circuits. However, I believe a major solution is to have our Judges and clerks scrutinize these affidavits. If you are truly indigent you should be appointed the Public Defender. If you commit a crime and can pay for your I-Phone, and cable bill then the Court really needs to help you prioritize by forcing you to hire a private attorney. In the end, you will get better representation; the truly indigent will get better representation because the Public Defenders will have more time, and it will begin to help the budget that is in dire need of cuts.
The answer to my original question is simple. If you can afford a private attorney you should have no choice but to hire private counsel.