Academic journal article Missouri Law Review

Litigating the Ghost of Gideon in Florida: Separation of Powers as a Tool to Achieve Indigent Defense Reform

Academic journal article Missouri Law Review

Litigating the Ghost of Gideon in Florida: Separation of Powers as a Tool to Achieve Indigent Defense Reform

Article excerpt

Today, the promise long ago heralded by Clarence Gideon's successful appeal (1) goes unfulfilled, as public indigent defense systems nationwide operate in perpetual crisis mode. (2) A key difficulty has been that Gideon, while surely deserving of landmark status for its recognition that "lawyers in criminal courts are necessities, not luxuries," (3) failed to provide any guidance on how states should afford such assistance. (4) This deficit has only worsened over time, as the right to counsel has been extended to less serious criminal offenders, (5) resulting in the infusion of yet more indigent clients, magnifying the importance of what Anthony Lewis justly termed an "enormous social task." (6)

In Florida, the difficulty has been in evidence since Gideon was decided, (7) prompting the state's supreme court almost thirty years later to condemn the "woefully inadequate funding of the public defenders' offices, despite repeated appeals to the legislature for assistance." (8) In the Sunshine State, however, the standard saga of underfunding and case overloads has come with a twist. Dating back to the 1970s, Florida courts, including its supreme court, have repeatedly sought to remedy the situation. After condoning Gideon's plight, (9) only to have its position repudiated in Gideon and rejected by twenty-two other states that filed an opposing amicus brief with the Court, (10) the Florida judiciary subsequently distinguished itself, forcefully insisting upon the representational rights of accused indigents in the face of chronic public defender underfunding and case overloads. (11)

This judicial assertiveness did not go unnoticed by the Florida Legislature, which in 2004, without fanfare or notice, took the unusual step of expressly prohibiting courts from granting public defender motions to withdraw on the basis of a conflict of interest deriving from excessive caseload or underfunding. (12) The legislative shot across the judiciary's bow, while not unprecedented in the recent annals of Florida lawmaking, (13) constituted a provocative challenge to the inherent authority of Florida courts to regulate attorney conduct and ensure satisfaction of the Sixth Amendment right to effective assistance of counsel.

The provocation went unchallenged until 2008, when public defenders in Miami-Dade County filed suit in state court. (14) The litigation, emboldened by a 2006 ABA Formal opinion advising defenders to refuse or withdraw from cases when excessive caseloads interfere with their capacity for effective representation, (15) was pursued on a pro bono basis by the Miami office of the law firm Hogan and Hartson and has justifiably attracted national media attention. (16) In this Article, I will discuss the Miami-Dade "excessive caseload" litigation, which continues to unfold in Florida's appellate courts. In doing so, I will offer some thoughts on the separation of powers implications of the aforementioned statute, which, other than a similar provision adopted in Colorado (17) that has gone unchallenged, stands alone in the nation.


The Florida Legislature created the Office of the Public Defender in 1963 to comply with the mandate of Gideon. (18) In 1972, the office assumed constitutional status as a result of an amendment to the Florida Constitution, (19) and today public defender offices are located in each of Florida's twenty judicial circuits. (20)

The issue of insufficient public defender funding and excess workload has been litigated in Florida courts for decades. In 1980, the Florida Supreme Court consolidated two court of appeals cases reaching divergent results on the authority of trial courts to grant public defender motions to withdraw, based on assertions that excessive caseload precluded their capacity to provide effective client representation. (21) In Escambia County v. Behr, the court held that trial courts faced with such motions enjoyed the unfettered discretion to appoint substitute private counsel at the county's expense, without having to specify a lawful ground or special circumstance. …

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