Despite reforms, lawyers still reaping benefits of patronage
04/14/1992 7:10 PM
09/27/2014 11:26 PM
For seven years, Dade's judges knew there was something wrong with their system of appointing private lawyers to represent poor criminal defendants.
They knew the system unfairly favored a small fraternity of lawyers.
They knew the system was fueled by patronage: Lawyers gave campaign contributions to the judges; judges gave court- appointed cases to the lawyers.
They knew the system could be exploited by some lawyers who weren't accurate in their billing.
And they knew the system was expensive: It paid $30 million in public money to private criminal defense lawyers from 1985 to 1991.
Instead of fixing the system, however, the criminal court judges merely tinkered with it, and only when public pressure forced them. For years, they instituted cosmetic changes that allowed the same select few lawyers to make six-figure incomes.
In 1985, State Attorney Janet Reno sounded the alarm about Dade's court-appointed lawyers getting $3.5 million in public money, more than half the total amount being spent statewide on "special public defenders" for poor criminal defendants.
Nothing was done.
In 1987, Dade assistant county attorney Hugo Benitez practically begged his superiors to begin auditing the lawyers' bills. An auditor would result in "fewer abuses and lower fees, " he wrote.
Nothing was done.
In 1989, the judges knew that the cost of the system was spiraling out of control. Fees for court-appointed lawyers had doubled to $7 million a year, and one lawyer had made an annual fee of $343,000. In response, Dade's chief judge, Gerald Wetherington, supplanted the itemized billing system with a simpler, minimum-fee system.
"We were constantly trying to contain costs, " Wetherington said. "We wanted to eliminate some of the paperwork and get a good deal for the public."
Nothing had really changed.
A STIFF TAB
A routine court case costs county $37,610
The same small group of lawyers -- most of them former judges and prosecutors friendly with the men and women on the bench -- still reaped six-figure incomes from the system.
And the most routine cases were still costing the county a lot of money.
One example: A trio was charged with stealing gold chains from pedestrians. Their cases never went to trial. The three defendants pleaded no contest and were given reduced sentences. After four brief hearings, the cost to county taxpayers for three court-appointed lawyers and one investigator: $37,610.
In 1991, one of the worst judicial corruption scandals in U.S. history rocked the Dade criminal justice system. Operation Court Broom produced allegations that certain lawyers were paying kickbacks to judges in exchange for court appointments.
Dade's new chief judge, Leonard Rivkind, made further changes. The most dramatic reform: a $75,000 annual income cap for court-appointed lawyers. Rivkind said the changes were not directly related to Operation Court Broom. He assured the public that fees for court-appointed lawyers, in general, were not excessive.
"I would like to point out that the fees paid special public defenders are not clear profit to them, " Rivkind said in December. "It is estimated that from 35 to 45 percent of any fee is absorbed by the lawyer's office overhead."
FINDINGS OF STUDY
Top court officials expressed surprise
In March, The Miami Herald showed Rivkind its findings from an exhaustive study of the system: Since 1988, the top five money-making court-appointed lawyers have made $2.3 million and have charged taxpayers more than 24 hours in a single day over and over again.
In addition, some of the lawyers have inflated their bills and charged county taxpayers for work they did not do.
Dade's top court officials said the findings took them completely by surprise.
Within two weeks, Rivkind changed the system again: Judges were ordered to peruse itemized bills more carefully. Certain bills would be audited. All bills had to be submitted within 30 days after cases concluded.
Three times in three years, Dade's top judicial officials changed the system. But one thing never changed: Court-appointed lawyers continue to make taxpayer money largely on the honor system.
Despite ample evidence of abuse, the system prevails for several key reasons:
* Judges refuse to hold lawyers accountable for their work -- despite the fact that they are earning public money.
* Judges still depend on getting campaign contributions from private court-appointed lawyers who appear in their courtrooms.
* County officials, reluctant to impose their will on the judges, have not initiated proper safeguards for the public money they pay to the lawyers.
* State officials, constrained by tight budgets, have failed to finance Dade's public defender's office adequately. That has resulted in massive case overloads with only the court- appointed lawyers available to pick up the slack.
Ironically, it was a landmark Florida case, Gideon vs. Wainwright, that forced governments to provide lawyers for the poor.
Clarence Earl Gideon was charged with breaking into a billiards hall. He argued that he could not afford to hire a lawyer, and he asked the state to provide him with one. The state refused, and he was convicted by a jury.
In 1963, the U.S. Supreme Court reversed Gideon's conviction and ruled that state governments must provide legal representation for anyone accused of a crime who cannot afford a lawyer. His story was chronicled by Anthony Lewis in the famous book, Gideon's Trumpet.
In response, state governments created public defender's offices -- relatively low-paid lawyers assigned to represent indigent defendants.
Private court-appointed lawyers came into being when the public defender's office had to drop out -- or, in courthouse lingo, "conflict out" -- of its cases for a variety of reasons.
For example, when two or more people are charged with the same crime, their interests and defense strategies conflict. When that occurs, a public defender would represent one defendant and a court-appointed lawyer would defend the other.
Judges decided who got what
As the number of criminal cases surged in Dade County in the 1980s, the number of conflicts surged as well.
Public defenders were not required to identify the conflict. A reason can be that the public defender's office is just too busy to handle the case. "An underfunding conflict, " Dade Public Defender Bennett Brummer called it.
The funding that did not go to the public defender's office went instead to the private lawyers.
The judges decided which private lawyers got the money. That assured a kinship between judges and lawyers, particularly in the clubby, politically charged atmosphere of an urban courthouse.
In Dade, those who benefited the most from the system were the products of it: former judges, former prosecutors, former assistant public defenders. With court appointments, the former members of the public sector would still earn public money -- but the checks would be much bigger.
Even the lawyers themselves admitted that there was a problem:
"Patronage . . . there's no question that may be a weakness in the system, " said Ed Shohat, then president of the Florida Association of Criminal Defense Lawyers, in 1987. "It's got to be looked into. It's a lot less of a problem than it was 10 or 15 years ago. Back then, if you weren't on the 'good list' of a judge or hadn't contributed to the campaign, you wouldn't get appointments."
Many judges reward political supporters
Dade Circuit Judge Thomas Carney said many judges feel an obligation to give court appointments to those who helped them keep their seats on the bench.
"It is human nature to reciprocate, " Carney said.
Lawyers say they also feel an obligation to give checks to campaigning judges.
"If you don't give, you wonder if, 'Well, gee, is my client going to be treated differently?' " said lawyer Randy Maultasch, a regular campaign contributor who ranked second in court- appointment fees in the last three years. " 'Am I at least going to be called out of calendar, or am I going to have to sit there?' "
Former judge Arthur Huttoe was the biggest-earning court- appointed lawyer with $343,035.50 in fees during fiscal year 1987-88.
Huttoe was one of the biggest campaign contributors to many judges, routinely writing checks of $500 and $1,000, according to campaign records.
He received the bulk of his appointments from four veteran Dade judges, who, like him, had worked as prosecutors in the 1970s under then State Attorney Richard Gerstein: Alfonso Sepe, Howard Gross, Theodore Mastos and Ellen Morphonios.
Sepe is under indictment for extortion and bribery as part of the state and federal corruption investigation, Operation Court Broom. He faces a federal trial in August.
Gross was charged with bribery charge in 1987 and later acquitted by a state jury. But he lost his seat on the bench in the process.
Mastos was voted off the bench in 1988, partly because he was stained by bad publicity from the scandal involving his close friend, Howard Gross. Mastos is now, like Huttoe, one of the leading earners from court-appointment fees.
Former Dade Circuit Judge Ellen Morphonios showered Huttoe with more court appointments than anyone else -- even though she and everyone else knew that he farmed out the work to other lawyers.
QUID PRO QUO
Convicted judge says gifts, appointments tied
A glimpse at the exclusive world of court appointments was provided by former Dade Circuit Judge Roy T. Gelber, who was sentenced last week to 12 years and seven months for bribery and extortion.
Lawyers and judges knew of the clear quid pro quo between court appointment work and judicial campaign contributions, Gelber said on an FBI tape.
Gelber was an astute student of the system. Before joining the county court bench in 1986, he made a handsome income as a court-appointed lawyer. In 1983-84, he made $99,690 in court-appointment fees alone.
That year, court administrators noticed that Gelber was charging county taxpayers for more than 24 hours in a day.
As was the custom, the court administrators asked Gelber for an explanation.
Gelber blamed it on poor record keeping.
Court officials told the chief judge about Gelber's excessive billing.
Nothing was done.
No one audited his bills. No one told the Florida Bar Association. No one told the state attorney's office.
Two years later, Gelber was elected to a seat on the county bench. Five years later, he resigned from the bench and pleaded guilty to extortion and bribery.
Questioning legal bills considered distasteful
Despite all of the warnings, the system was never given a mandate by the top judges to crack down on lawyers who overcharged county taxpayers. Court and county officials found it distasteful to question lawyers about their bills.
The argument: Lawyers are officers of the court, sworn to uphold the law. Their word is their bond. They signed affidavits that their bills were true.
"You have to rely on the honesty of people, on some level, " said former Dade Chief Judge Gerald Wetherington. "There is no way to avoid it."
With no fear of tough enforcement, court-appointed attorneys can run up huge bills by representing defendants charged with multiple cases -- even if they don't go to trial.
The problem with holding court-appointment attorneys accountable boils down to this: At its very worst, a dispute turns into a polite negotiating session before a judge, who usually appointed the attorney in the first place.
One example: Taxi driver Michael Maret went through several court-appointed lawyers before he was finally convicted of first-degree murder.
Three lawyers turned in bills totaling more than $24,000, double the state's recommended limit of $12,000 for a capital case with a five-day trial.
Huttoe took the case just three weeks before it went to trial. He ended up charging the county $7,895. At the five-day trial, Huttoe called no witnesses to testify. His bill contained itemized hours because it exceeded the minimum fee.
Benitez tried to challenge Huttoe's bill at a late 1991 hearing before Circuit Judge Henry Oppenborn Jr.
"To require the county to pay approximately $24,000 for the representation of this defendant is really not proper in the system, " Benitez told the judge. "This has got to stop."
"Is this your only argument?" Judge Oppenborn asked.
Oppenborn ordered the county to pay Huttoe the full amount.
Nobody in the courtroom that day mentioned that Huttoe gave $1,000 to Oppenborn's re-election campaign the year before. That's not unusual in Dade circuit court.
In May 1989, Dade's judges implemented three changes in the system -- all in the name of saving taxpayer dollars:
* Hired 52 attorneys to work with the public defender's office.
* Tightened up on the number of cases that the public defender's office can drop by requiring a supervisor to approve all "conflicts."
* Scrapped the itemized hourly billing and replaced it with a system of standardized minimum fees.
The changes combined to reduce Dade's court-appointment budget by $1.4 million a year.
The switch from itemized billing to form billing, however, was welcomed by lawyers who handle a high volume of court- appointed work and had trouble keeping track of their hours.
'THE PUBLIC TROUGH'
Under new system, still no accountability
Even under the new minimum-fee system, the lawyers are not held accountable. A lawyer can make a lot of money because he makes the same fee whether he puts in six hours or 33 hours.
By merely checking a box on the form bill, court-appointed lawyers can make as much as $240 an hour handling cases, almost five times the rate mandated under state law.
Trinchet, who made as much as $128,000 under the old system, boosted her earnings to $196,000 last year under the form system.
Like many lawyers, Mastos is a staunch supporter of the new form system.
"I think that the greatest thing that could have happened is we went to the fixed fee billing system, " said Mastos, who earned about the same amount -- $130,000 -- under the two systems.
"So to me, I think that also proves that I didn't pad or submit phony bills. My earnings stayed exactly the same."
Mastos, Manuel Crespo and Clinton Pitts -- all lawyers who have earned six-figure annual fees from court appointments -- served on a committee of lawyers that recommended the change from itemized hourly bills to the form system.
Pitts argued that the lawyers were willing to change the system because the public was becoming concerned about the big fees.
"A lot of money has been coming through the public trough, " he said. "The public needs some kind of reprieve. We decided we owe something to the community."