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

By Brummer, Bennett H. | St. Thomas Law Review, Fall 2009 | Go to article overview

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


Brummer, Bennett H., St. Thomas Law Review


I. Introduction
II. The Importance of Defender Excessive Workload and Its Societal
      Context
      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

I. INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.