The Dade County Bar Association’s Bench & Bar Conference

February 11, 2013 Churchill

On Friday morning (2/8/13) I had the pleasure of joining a Bar panel discussing criminal law issues. The panel had the grandiose title of “Criminal Law with the Legends” (usually when other lawyers call you a legend this translates to over-the-hill). But despite the pompous title the panel was an excellent one. The moderator was UM associate law professor Mary Anne Franks who was a Rhodes Scholar, has two degrees from Oxford and one from Harvard Law School. She tried her best to stem the rhetoric from the overly loquacious lawyers and judges.

The Hon. Kevin Emas, a Judge on the Third District Court of Appeal, warned everyone that the Florida Legislature was once again threatening to take away the rule -making power of the Supreme Court and arrogating it upon themselves. They are particularly focused on speeding up executions and swatting away pesky claims of innocence. (Somehow our august Florida lawmakers have missed all the exonerations. I suppose they don’t read much in Tallahassee.)

The Hon. Darrin Gayles, a Judge on the Eleventh Judicial Circuit Court, and a member of its professionalism committee, spoke on civility and professionalism of advocates. Interestingly, most of the questions from the lawyers asked how often contempt citations are issued. I guess they are getting a little nervous.

The Hon. Wifredo Ferrer, the United States Attorney for the Southern District of Florida (and an excellent public speaker), focused on fraud in Florida.  (Shocking! There is fraud in Casablanca?)

Rebekah Poston, a partner at Squire and Sanders and a long time trial lawyer, gave a humorous retelling of her experiences in the trials of the Black Tuna gang, the Miporn case and Bon Jovi (she denied dating him). Not a bad line-up. Her next appearance will be at The Comedy Store on Sunset Blvd.

Ironically, the audience had more legends than the panel: Chief Judge Fred Moreno; circuit judges Thomas Rebull; Richard Hersch, Milton Hirsch and, making a special appearance, was best-selling crime novelist Paul Levine (no doubt seeking new grist for his mill). And I am sure I am missing others.  (Please forgive me. I was trying to remember my lines at the time.)

My talk is reproduced here. I broke it down into bite sized phrases as Churchill recommends:

Present at the Creation

“Lawyers in criminal courts are necessities, not luxuries.”

Words of wisdom from Justice Hugo Black

as codified in Gideon v. Wainwright,

a case which approaches its 50th anniversary this March 18th.

Question: why did we wait 175 years after the Bill of Rights

to recognize this necessity?

Gideon is our nation’s most important decision

in its enduring quest of equal justice for all.

It changed the course of legal history.

With one minor problem – no one wanted to pay for it.

It reminds me of Andrew Jackson

who said of another supreme court decision

“Chief Justice John Marshall has rendered his decision,

now let him enforce it.”

Gideon’s promise has fared no better.

When I started as a public defender in January 1971,

Gideon was anemic and on life support.

The deep south was not ready to accept public defense

for indigent, mainly black defendants,

just like it refused to accept Brown v. School Board.

Indigents received a defense in name only.

The bright light of Gideon was barely flickering.

Just another empty promise.

Phil Hubbart recruited a young band of ten lawyers,

fresh out of law school,

too young, too naive and too inexperienced

to know what they were getting into.

Only ten to represent all the poor people arrested in Dade County.

The office budget that first year was $125,000 and

we assistants were paid a salary of $8,500.

Despite our youth and inexperience

we were a substantial upgrade.

The previous office had part time lawyers

who came in on Tuesdays and Thursdays

and waived jury in every case.

We 10 were horrified what we learned

of the so-called system of justice:

– outrageous bail terms;

– innocent people languishing in prison

for many months or years before trial;

– they were forced to plead guilty just to get out of jail;

– onerous sentences for minorities and poor people.

We shocked the system by demanding a jury trial in every case.

A heresy which outraged the incumbent judges.

Little by little things began to change.

Ones that couldn’t always be quantified.

It was not linear

but zigged and zagged.

We were visionaries who believed

that justice was possible

even while being immersed in

a notoriously unjust system

and we could not have thrown ourselves into that system,

day by day, into that machinery

without believing we could change it.

It was ultimately an act of faith,

and by our very presence – we changed it.

Gideon was a beginning. Albeit a brave beginning.

Gideon has power because it stands for more than what it is.

We are not fighting for a ruling;

We are fighting for what the ruling protects.

Sadly Gideon’s promise remains unfulfilled.

Today the Federal Government has

targeted drone strikes on defense lawyers.

The attorney general of the United States, after 911,

so distrusted lawyers that he refused

to allow them to even speak to suspected terrorists.

Some for years.

The government in the KPMG case

threatened the firm with indictment

if they dared to follow their partnership agreement

to pay legal fees for indicted accountants.

The government has threatened to indict lawyers

with money laundering if they dare to

represent defendants in drug cases.

The United States Attorney can

legally impoverish a criminal defendant

by filing an indictment with civil or criminal forfeiture,

freeze a defendant’s funds,

and eliminate experienced and able defense counsel.

Nothing guarantees the conviction of innocent defendants

more than an incompetent, underfunded, or ineffective lawyer.

The National Registry of Exonerations,

reports 1,050 people released from prison

because they were innocent —

142 of them from death row.

In total these men and women

spent more than 10,000 years in prison

for crimes they did not commit.

So – We have come back full circle to Clarence Gideon.

It is as if Gideon’s Trumpet never sounded.

Once again the system is designed to get defendants into

prison as efficiently and quickly as possible.

Like Mr. Gideon, these men and women

are forced to defend themselves as best they can.

Unlike Gideon they have lost the right

to pay for what it takes

to exercise a basic constitutional right –

the right to pick their own lawyer.