The banality of excessive defender workload: managing the systemic obstruction of justice.

• Author: Brummer, Bennett H.

1. 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 state serves as a good example of a national problem, providing concrete examples of EC dynamics and points of departure for other jurisdictions.

2. THE IMPORTANCE OF DEFENDER EXCESSIVE WORKLOAD AND ITS SOCIETAL CONTEXT

   Public defender EC is an undisputed, widely documented, chronic problem of enormous magnitude. Its importance derives from its destructive impact on the right to counsel and all the people, values, and institutions that depend on the right to counsel.

   EC is defined, in commonsensical and functional terms, as a caseload or workload that may reasonably be expected to materially interfere with counsel's ability to provide assistance to existing clients. EC means more than a heavy caseload. EC will actually or likely cause attorneys to provide substandard representation that violates constitutional, ethical and other professional norms so that what should be done cannot be done.

   EC directly and deleteriously affects millions of individuals and cases in our country every year, 800,000 in Florida, and 100,000 in Miami-Dade County alone. (9) Those cases not only seriously affect people's freedom, (10) but their families and communities as well. (11)

   EC prevents the assistance of counsel guaranteed by our constitutions, (12) as well as the implementation of many other constitutional rights that depend on that right. (13) Criminal law is rife with constitutionally critical procedures and stages; an EC will necessarily violate numerous constitutional principles. (14)

   EC undermines the basic values of our free society. (15) EC is a corrosive force far greater than any particular constitutional or ethical justice issue. (16) EC has systemic impact and undermines the integrity and moral authority of the judicial system and the legal profession. (17)

   EC is the most common, profound and destructive problem that defenders face. (18) As a practical matter, this single problem eviscerates many defender operations and all of the people, institutions and fundamental values that depend on them. (19) It increases prison and jail costs in the developed country that incarcerates more of its population than any other. (20)

   Ironically, the stellar importance of the right to counsel is directly proportional to the severity of the breach of that obligation, principally through defender underfunding and the attendant excessive workload.

   EC is not a secret. Very extensive scholarly, media and professional attention is a testament to the magnitude of the problem. This body of work contains a wealth of ideas, citations of cases and other materials, (21) and its contribution to this article is gratefully acknowledged. Only a small sample could be cited herein. (22)

   For many years, the ABA has promulgated standards requiring defenders to monitor caseloads and actively avoid EC, and implying that other stakeholders should do the same. (23) The lack of response prompted the ABA to pass a formal ethics opinion in 2006, which generally aggregated its earlier positions regarding defender ethical obligations relating to EC. (24)

   In March of this year, a California appellate court catalogued some of the significant, earlier work with particular reference to ABA Formal Opinion 06-441. (25) Despite the ABA's long-term efforts, the problem has continued to deteriorate. In August 2009, to more effectively implement the formal opinion, the ABA House of Delegates approved new standards focusing on EC. (26)

   Many of our state and local CJSs work so poorly, that, for the average citizen, falling into the hands of the police and the courts virtually guarantees a denial of justice and due process. (27) Although the problem has been the subject of broad scholarly and professional attention and some constructive decisional law, very little effective, practical, establishment concern has been demonstrated at the state and federal levels. (28)

   This situation could not arise and persist without the active and conscious dereliction of stewardship obligations by state and federal governments and criminal justice stakeholders. (29)

   Few individuals or institutions take EC and its related problems seriously as a practical matter--not the funders, who create the problem through underfunding and overuse of the CJS; not the PDs who, along with their clients, bear the primary burden of the problems; not the other criminal justice stakeholders, such as judges and prosecutors, who condone the situation, although they are adversely affected by it (in constitutional and ethical terms). (30)

   Despite their awareness of the problem and their sworn constitutional and ethical obligations, PDs, judges, prosecutors and funders fail to use their available institutional powers to fulfill their professional and institutional duties and obligations. These stakeholders condone and even promote the systemic obstruction of justice, through malfeasance, misfeasance and nonfeasance relating to the right to counsel.

   1. EXCESSIVE CASELOAD AS A REFLECTION OF BROADER SOCIETAL, SYSTEMIC FAILURE AND COMPLICITY

      Despite our many expressions of commitment and self-satisfaction, we have witnessed a broad-based decline in American freedom, fairness, integrity, moral authority, respect and competence.

      Our CJS is an integral part of an interdependent web of societal systems and institutions. These crucial systems define who we are, who we will become, and how we value and are valued by the rest of the world. (31) Our free society depends on them.

      Our legal system has traditionally defined itself in terms of basic values, such as the rule of law, an independent judiciary with an independent bar, and a meaningful adversarial system. The rule of law is an essential part of our American societal infrastructure. (32) The rule of law is the key to our moral authority, the democratic values that are accepted domestically and that we export successfully, in varying degrees and forms, internationally. (33) Courts and the decisions they make will be respected only to the degree that they are perceived as being dedicated to fairness. Judicial moral authority, which is an integral part of the rule of law, depends on litigants having their day in court, especially a fair opportunity to be heard.

      The same set of values, perspectives and...