Academic journal article St. Thomas Law Review

The Banality of Excessive Defender Workload: Managing the Systemic Obstruction of Justice

Academic journal article St. Thomas Law Review

The Banality of Excessive Defender Workload: Managing the Systemic Obstruction of Justice

Article excerpt

I. Introduction
II. The Importance of Defender Excessive Workload and Its Societal
      A. Excessive Caseload as a Reflection of Broader Societal,
      Systematic Failure and Complicity
      B. The Criminal Justice System
      C. Consequences of Defender and Other Stakeholder Fecklessness
         With Regard to Their Stewardship Obligations
      D. The New Professionalism--The Banality of Evil
III. The Nature and Importance of the Right to Appointed Counsel
      A. The Right to Counsel
      B. The Constitutional Purposes and Functions Served by the
         Right to Counsel
      C. The States Are Obligated to Provide the Assistance of
         Effective Appointed Counsel
IV. Courts' Stewardship of the Judicial Power
      A. Core Judicial Functions and Inherent Power
      B. Effective Exercise of the Courts' Administrative and
         Supervisory Power
      C. Judges' Constitutional and Ethical Obligations
      D. Judicial (and Prosecutorial) Complicity in Obstructing the
         Right to Counsel
      E. Florida Judicial Incentives and Disincentives to Addressing
         Excessive Caseload
      F. Adopting an Inappropriate, Strickland-like Actual Prejudice
         Standard for Prospective Claims
      G. Florida Bar Fecklessness Regarding the Right to Counsel and
         Defender Excessive Caseload
      H. Legislative Intrusion on Judicial Functions
V. Defender Accountability for Compliance with Ethical Standards
      Versus Complicity in the Persistence of Excessive Caseload
      A. Defender Self-Concept and Courage Is Crucial
      B. Defenders Who Have Proactively Confronted the Banality of
         Excessive Caseload
VI. Alternatives Going Forward


This article focuses on the impact of public defender (2) ("PD") excessive caseload ("EC") and related indigent defense issues on the values of professionalism, stewardship, and patriotism. It can be regarded as a sequel to my previous article, "Independent, Professional Judgment: The Essence of Freedom," which dealt with the same fundamental values, but a wider range of topics. (3)

The article is intended as a reference, including recent material, in a somewhat different context from previous studies. In my experience, for the last 40 years, the normal functions of our state and local criminal justice systems ("CJS"), especially indigent defense and the right to counsel, have continued to deteriorate, despite prodigious efforts by many dedicated people and organizations. In the 1990's, the Supreme Court of Florida dealt with a number of appellate cases, involving egregious delays for thousands of convicted defendants, where many defendants had served their prison sentences before the PD even filed the briefs to which the clients were constitutionally entitled. (4)

New norms at the trial level have now sunk to the point that the right to counsel for indigent people, and the system that depends on it, in Florida (and in many other jurisdictions), is a sham. (5) As the Supreme Court of Florida has noted, "an inundated attorney may be only a little better than no attorney at all." (6)

This article provides some societal context for the problem, followed by a brief review and analysis of: 1) the right to the effective assistance of counsel as related to excessive caseload, (7) and 2) the powers, duties, attitudes and actions of the entities most directly involved (e.g., the courts, integrated bar, defenders and prosecutors). (8)

This article is offered as a framework for efforts to redeem professionalism, our adversarial system and individual rights, not so much through litigation, but through changing the prevailing culture of our CJS and judiciary. Reflecting my professional experience and my hope for improvement, Florida is a focus of this article. Florida has an extensive history of dealing with excessive caseload, especially through litigation. …

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