Injustice for All

The overburdened and underfunded Public Defender’s Office can’t afford to take on any more cases, leaving our constitutional right to counsel hanging in the balance

By Lee Molloy

Bennett H. Brummer

For the past 32 years, Miami-Dade Public Defender Bennett H. Brummer has been responsible for the provision of effective legal counsel to indigent citizens.

But with millions being slashed from his budget, and his staff having to take on nearly four times the caseload recommended by the Florida Governor’s Commission, he believes he can no longer adequately fulfill the constitutional obligations of his office. Now fed up, he’s speaking out about what he sees as an erosion of our freedoms.

In the early hours of June 3, 1961, somebody broke a window of the Bay Harbor Pool Room in Panama City, Fla. That person then smashed the jukebox and cigarette machine, and stole the money contained within them. Later that day, police arrested Clarence Gideon, whom a witness reported seeing at the poolroom around 5:30 that morning. Gideon was charged with breaking and entering.

When Gideon appeared in court, the judge told him, “I am sorry, but I will have to deny your request to appoint counsel to defend you in this case.” To which Gideon replied, “The United States Supreme Court says I am entitled to be represented by counsel.” Gideon was forced to act as his own counsel and, although he maintained his innocence, the jury returned a guilty verdict and he was subsequently sentenced to five years in prison.

In the suit against Florida Department of Corrections Secretary Louie L. Wainwright, Gideon appealed to the U.S. Supreme Court from his cell — writing, it is claimed, on toilet paper after being refused proper writing materials. He argued that his Sixth Amendment rights had been violated when he was denied the assistance of counsel. The Supreme Court agreed in a landmark ruling, Gideon v. Wainwright, on March 18, 1963, and appointed to his case Abe Fortas of the law firm Arnold & Porter (who in 1965 was appointed a Supreme Court justice). Gideon was eventually retried and acquitted.

Immediately following this landmark decision, the state of Florida required that public defenders must work in all 16 of the state’s circuit courts.

While Gideon was making his case to the Supreme Court, the future public defender, Bennett Brummer, was still a student at the University of Miami Law School. Brummer studied law because he “wanted to see how the society was structured, and ended up focusing on law as the main element…. I knew nothing about it; I had no lawyers in my family.”

Brummer graduated from UM in 1965 and then spent two years in Venezuela in the Peace Corps. He joined “to be of service, to learn about my own culture and other people’s culture,” he said. “The Peace Corps gave me a unique opportunity to live in another country without being in the military, or a corporation, or being a tourist. I would be better able to understand it [this country] if I lived outside it for a while.”

Then, in 1971, Brummer was the 16th lawyer to join the Dade County Public Defender’s Office (today, even with cutbacks, there are more than 10 times that number) when he became an assistant public defender in the appellate division. Brummer was asked to help modernize the office by the former public defender, Phillip A. Hubbart, of whom Brummer said, “He made radical changes in that office. He made the office a full-time office rather than part-time. He promoted jury trials rather than bench trials as a way to try a case.”

He explained, “In the early ’70s, people understood the importance of government and were very hopeful of improvements that would be brought about by restructuring. There was a major restructuring of courts in ’72. People did not view the government as something to be destroyed. In the ’70s people were looking to make government work, to make it respectable.”

Brummer was elected to the post of Miami-Dade public defender in 1976, and in 2004 won election to his eighth and final term — he is retiring at the end of this year.

But he is not going quietly.

Claiming that an excessive workload causes conflicts of interest with current cases, the Public Defender’s Office requested last week that the court appoint other counsel in non-capital felony cases, meaning that the office will not take on new felony cases unless the defendant is accused of first-degree murder.

“Obviously, this a political move on the part of Mr. Brummer to get additional funds,” said Bruce Winick, a professor at Brummer’s alma mater, the UM Law School. “I think he is right actually. We can cut many services in our communities, but this one is constitutionally required…. Those defendants have a constitutional right to counsel, which means an effective counsel.”

Meanwhile, the Miami-Dade State Attorney’s Office is opposing the measure in court. “Florida law presently prohibits public defenders from withdrawing from the representation of defendants due to underfunding or caseload issues. Although we too have suffered similar budget cuts, as prosecutors we feel the effective administration of justice is our primary role,” spokesman Ed Griffith said. “Accordingly, our planned filing of this pleading is intended to ensure that justice for the victims of crime is not delayed or denied.”

The state cut the 2007-08 Public Defender’s Office budget by 8.5 percent, or $2.48 million, from just over $29 million. On top of that, it is withholding an additional 1 percent of funds per quarter from the 2008-09 budget, totaling a 12.5 percent decrease in that fiscal year. 

As a result, Brummer said, “We lose lawyers and support staff; they take away our ability to pay people. We reduce staff from a base that was already inadequate by the range of 10 to 13 percent. It makes it impossible to comply with a public defender’s constitutional and ethical obligations.”

There are serious ramifications if the Public Defender’s Office does not fulfill its obligations. First, Winick said, “the prosecutor’s office may have to pick and choose among those that they prosecute.” Then, once it decides to prosecute, the defendant may have to be assigned a lawyer from the newly created Office of Civil Regional Counsel. “Unfortunately, the state has not funded the Regional Counsel adequately to do its normal work,” said Brummer, so “they will have to decide how many cases they can accept and then, when they can’t handle [them], those cases will go to private lawyers.”

According to Brummer, the state has a fund of $8.7 million to pay private lawyers to fulfill its constitutional obligation to provide attorneys in cases that public defenders would otherwise handle. However, this solution is more costly to taxpayers.

“We are the cheapest way to handle those cases, but they won’t even fund us to do that,” Brummer said. “A crude calculation is a budget of $300 per case. A private lawyer will cost the state approximately three times as much.”

But cost isn’t the only problem. The National Advisory Commission on Criminal Justice Standards and Goals recommends that full-time public defenders not take on more than 150 felony cases per year, and the Florida Governor’s Commission established maximum caseload standards of only 100 felony cases per attorney per year. Currently, the average caseload per attorney in the Miami-Dade Public Defender’s Office is 387. Furthermore, overworked and underpaid attorneys are quitting, Brummer said. (The average salary for an assistant public defender with a year or two of experience is $43,000; the statewide average for attorneys with similar experience is $65,000.) “Due to lack of money, I’m not hiring replacements,” he said.

“The quality of defense that poor people get is generally shameful,” he explained. “Public officials and the public like to say they are concerned about their freedom, but we are rapidly losing our freedom and people don’t seem to be particularly concerned about it, and they are not willing to spend money to ensure the process is in place to keep that freedom.”

Brummer attributes much of the problem to tax cuts. “When Jeb Bush took billions of dollars from revenues, there seemed to be little concern that it was taking funding from both the school system and the justice system,” he said. “Politicians love to say, ‘We are going to reduce your taxes,’” and that is “part of an ideology that lacks sufficient respect for the necessity and function of government.”

Tallahassee lawmakers, he said, are “taking the oxygen out of the courts” because “the state does not want to pay for services; they don’t want to raise taxes and live within their means, regardless of the state’s constitutional obligation to provide services. They treat the courts like an agency rather than a co-equal branch of government. They don’t like the independence of the courts.”

In June, The North Bay Village Commission recognized Brummer’s service to the community. “The pledge that promised liberty and justice for all is being thrown away at a very rapid rate,” he said at the commission meeting. “It’s a disgrace. If you just build prisons, if you just have arrests and prisons, then you have Cuba.” Later, he explained, “The state Legislature just reduced funding for courts and public defenders, but found $300 million to build more than 10,000 prison beds.”

Ultimately, he believes the state is pushing the wrong people through the criminal justice system. “Mental health and drug and alcohol issues are treated as criminal problems,” he said. “We are paying a lot of money to arrest and house prisoners whose main issues are mental health or drug issues. If we valued freedom, we wouldn’t be so quick to take away people’s liberty because of mental health or substance abuse that are otherwise treatable.”

The solution, he believes, is bigger, not smaller government. “Failure to provide a national health care system takes away people’s economic freedom and is a source of bankruptcy.”

In the end, these budget cuts only hurt those who can’t afford to pay for proper representation. “Rich folks can hire their own lawyers; public defenders represent poor folks,” said UM’s professor Winick.

And Brummer will continue working to protect the rights of those indigent citizens for as long as he holds office in the building that bears his name.

“They pretend like they want to you to do the work, but they don’t really care if you do the work. So, you go along or you say, ‘the emperor has no clothes.’”