Here’s a Bad Idea…

Tuesday, November 25th, 2008

…electing public defenders.

Imagine the perverse, overly law-and-order sentiment that pervades the elections of judges and prosecutors now applied to the selection of who will represent the indigent accused.

Witness Matt Shirk, a Republican recently elected public defender in Jacksonville, Florida. Shirk, who was backed by the local chapter of the Fraternal Order of Police, has never defended a homicide case. His campaign promises included a vow not to oppose funding cuts to the office he was running for, and a promise to squeeze as much money as possible out of indigent defendants, including a proposal for hte postponed billing of acquitted defendants who might later be able to find some employment.

Shirk also promised during the campaign not to make drastic changes to the staff of the public defender office. But last week, he announced he’d be firing ten senior-level attorneys and three administrators.

As it turns out, several of the fired attorneys Shirk fired worked on the high-profile case of Brendan Butler, a 16-year-old wrongly accused of the robbery and murder of an elderly tourist. The Butler case was a huge embarrassment for Jacksonville’s sheriff’s department. Trial testimony suggested Butler’s confession had been beaten out of him by detectives with the department. Butler’s case eventually became the subject of the Oscar-winning HBO documentary Murder on a Sunday Morning. The sheriff’s department apologized to Butler, and reopened its investigation into the murder.

You’d think the kind of attorneys who could expose that kind of injustice (and, of course, expose the fact that the tourist’s real killer was still on the loose) would be exactly the sort of people a public defender would want on his staff.

Pat McGuiness, one of the fired public defenders who worked on the Butler case, says Shirk hasn’t even had the time to interview or review the personnel files of the people he fired. McGuiness alleges that Shirk’s axing of some of the office’s most skilled and experienced attorneys was a favor, in exchange for the police support he received during the campaign.

Shirk has yet to respond to those allegations, or explain his rationale behind the firings.

(Hat tip to Bobby G. Frederick)

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43 Responses to “Here’s a Bad Idea…”

  1. #1 |  Zeb | 

    Here is my idea: have a single pool of lawyers who are employed by the state and have prosecutors and public defenders randomly selected from the same pool.

  2. #2 |  Andrew | 

    Cripes. I didn’t know this existed in my state. Now I’m trying to think up ways to take this issue before the Florida Bar midyear meeting in January.

  3. #3 |  Cynical in CA | 

    Sounds like American justice, er, just us, to me.

  4. #4 |  Bill | 

    Sounds like it is time to file a bar complaint against this guy. This is very disturbing.

  5. #5 |  Salvo | 

    People seriously elect public defenders? And I thought electing prosecutors was a bad idea.

  6. #6 |  Robin | 

    Really, if public defenders were elected, people would elect the person least sympathetic to alleged criminals. It’s so totally blind and sick. Oh, Jesus. What was he elected to exactly? Heading up the office of public defense? Pardon my ignorance. This makes me want to cry. Ignorant, bloodthirsty people who haven’t had an abstract thought in their lives… Because of course police are good, and all criminals are evil sociopaths undeserving of these antiquated civil rights. You know, the people in this country don’t seem to want or deserve the freedom that they supposedly have. This blog is getting to be too depressing for me.

  7. #7 |  Robin | 

    And the felons can’t vote anyway!

  8. #8 |  ClubMedSux | 

    The prosector’s office might want to hire all those attorneys Shirk fired. They’ll need the extra staff to fight off all of the ineffective-assistance-of-counsel appeals that are sure to be filed during Shirk’s tenure.

  9. #9 |  Jason | 

    I agree that electing P.D.’s is a bad idea, but so is the idea of electing District Attorney’s. The pursuit of justice ought not be a political pursuit.

  10. #10 |  Steve Verdon | 

    Yeah that is how we like our justice….just send them straight to jail and skip the trial.

  11. #11 |  AJP | 

    Zeb’s idea, which has been floated elsewhere as well, would be perhaps the single most effective reform to our current criminal justice system. Not coincidentally, this is by and large the system used in the JAG – Attorneys do rotations as prosecutors and as defense lawyers. The benefits are obvious – attorneys on both sides of the courtroom would be more effective because they see how things work from both angles, and it would eliminate the bunker mentality that often leads to some of the worst prosecutorial excesses.

  12. #12 |  Ginger Dan | 

    While I’m not surprised Florida is a place where public defenders are elected, I’m surprised this happens at all. I’ve never heard of such a practice here in the Northeast, can anyone shed some light on whether this is unique to Florida, or does it happen in other places as well?

  13. #13 |  SJE | 

    This is a stupid idea that even the law and order nuts should oppose. Everyone who gets a PD and is convicted now has a much better chance to win a retrial because of inadequate assistance of counsel.

  14. #14 |  Brandon Bowers | 

    Someone help me out here: I don’t see any downside to Zeb’s idea, other than it possibly being harder to recruit public defenders/prosecutors among those who already have the bunker “the cops don’t arrest innocent people” mentality, and why the hell would anyone want mindless zealots at the DA any….nevermind.

  15. #15 |  Ahcuah | 

    I would think that this whole election of public defenders would have constitutional problems. The reason there are public defenders at all is because the Supreme Court has said that, for the right to an attorney to make any sense at all, the indigent must have access to a free, state-provided attorney.

    If those attorneys just turn out to be shills for the state, that really doesn’t protect that right, does it?

  16. #16 |  Boston | 

    San Fran also has a Public Defender election

  17. #17 |  ParatrooperJJ | 

    That idea is used in the Navy. The problem is that the defenders and prosecutors are rated by the same commanders who initiated the charges. Hardly a fair system. The Army on the other hand has the Trail Defense Service. Lawyers who work there are not in the same chain of command as the prosecutors.

  18. #18 |  Defending People » Matt Shirk, You Are the Weakest Link. | 

    [...] The Agitator and Myrtle Beach, South Carolina criminal defense lawyer Bobby Frederick (if I ever get tossed in [...]

  19. #19 |  The Bane | 

    Thank you for bringing this out. I live in Jacksonville and I originally supported Shirk as a Republican but as I learned more I came out hard against him.

    He has also only tried one sex case in addition to not being Death Qualified.

    He fired 5 death qualified attorneys in the murder capital of Florida.

    He will be using the office investigators to investigate the indigence of his clients. Keep in mind that the investigators were the ones who uncovered the evidence exonerating Mr. Butler.

    The beat goes on…

  20. #20 |  Alaska | 

    Zeb’s idea is a good idea in principle and it is also how the English system works. While it could be done here, it would involve a radical re-structuring of both offices. The reason has to do with conflicts of interest as applied to law firms. Essentially, if one lawyer in a firm has a conflict of interest, they all do, absent a few exceptions not really applicable here.

    To bring about Zeb’s proposal would require that PD and DA offices be broken into smaller groups like private law firms. The lawyers in those firms could then take cases on an individual basis to prevent these conflicts of interest. Then imagine the shuffling of cases while the DA and PD officers were being shut down and these offices were being created.

    That should give some idea of the extent that implementing this idea would have. So, while its a decent idea, it is an idea that would be most easily implemented at the creation of a criminal justice system rather than switching in the middle.

  21. #21 |  OneByTheCee | 

    Re: Matt Shirk

    This schmuck is going to be a disaster for the poor.

    He has “hidden agenda” written all over him except … that it isn’t hidden.

  22. #22 |  OneByTheCee | 

    I wonder if he has any investments in The GEO Group, CCA or any other prison industrial complex entities?

  23. #23 |  Edwin Sheldon | 

    “So, while its a decent idea, it is an idea that would be most easily implemented at the creation of a criminal justice system rather than switching in the middle.”

    All the more reason to start from scratch.

  24. #24 |  FWB | 

    The Best Idea:

    Eliminate ALL government prosecutors, DAs, etc. Then for every case have an independent, computerized, random drawing for prosecutor and defense attorney. All attorneys admitted to the bar are required to participate. Reimbursement rates set at a level commensurate with the average salary of all employed persons in the area of the trial. Government required to use its resources for both prosecutor and defense.

  25. #25 |  FWB | 

    Guess Zeb beat me to it although I’ve been advocating this system for a decade or more.

  26. #26 |  Edintally | 

    On paper Zeb’s idea may sound good but in practical terms defending someone and prosecuting them are two very different things taking different mind sets.

    Imagine being ideologically opposed to the drug war or capital punishment and then forced to prosecute someone and vice versa.

  27. #27 |  paul | 

    I say more power to him. Let him destroy the office. That way, maybe a lot more people will see how unjust the whole system is.

    90% of the time, if you are going to trial, you are doomed. The Public Defender’s office is a feeble and absurdly overworked defense against the well organized and funded prosecutors office. So there isn’t much to lose here if the PD goes away.

    The Public Defender’s true political role is to act as an enabler of the prosecution. They give the unbalanced and unfair proceedings the appearance of justice without actually giving it the substance of justice. “He got his day in court.”

    If the PD’s office is destroyed and people get no representation in court at all, only the most rabid law and order voter could consider the system fair. Maybe then, after we see the spectacle of indigent defendants heading to prison without counsel at all people will begin to see the need for reform.

    Or perhaps they won’t. Indigent defendants will still go to jail at 90% + conviction rates in court, but at least it will be clear to everyone who cares to see that the Emperor is not wearing any clothes.

  28. #28 |  The Bane | 

    “The Public Defender’s true political role is to act as an enabler of the prosecution. They give the unbalanced and unfair proceedings the appearance of justice without actually giving it the substance of justice. “He got his day in court.””

    This was decidedly NOT the case under Mr White. He and his predecessor assembled a team of highly qualified attorneys top down, retaining them with incredible success.

    The Brenton Butler case was just one example.

  29. #29 |  Justthisguy | 

    “supported by the Fraternal Order of Police..” wow. Aside from the English meaning of “shirk”, did y’all know it’s Arabic for “Idolatry”?

    Mr. Shirk seems to be one who loves the taste of that yummy police smegma.

    Dammit! We’re not supposed to have cops in this country! At all!

  30. #30 |  kishnevi | 

    Background to this is a complicated situation in Florida brought on by budget cuts, legislative action, and court decisions regarding the hiring of outside counsel in cases where the PD office can’t represent because of conflict of interest (for instance, when two co defendants required a PD, the PD office can only represent one; a second lawyer must come in from outside, fees paid for by the government, to represent the second defendant.) We already have judges ordering randomly selected attorneys to represent indigents, and said randomly selected attorneys objecting because of the burden on their practice, etc. Sort of a trial version of FWB’s idea. Basic situation now is that the PD system in Florida is approaching a crisis, and it has little to do with elections, and a lot to do with the fact that the state and municipal governments don’t have enough money to go around.

    In my part of Florida, the south end, elected PDs have not been a problem. For instance, the current PD for my county was one of the top assistant PDs under his predecessor. Of course, we are the liberal end of the state, but Duval County (Jacksonville) isn’t exactly a Republican bastion. Also bear in mind that at least in the larger circuits, the PD is largely a manager, spokesperson and lobbyist for the office, and hardly ever goes into court himself. (Same for the State Attorneys.) Also remember that most prosecutors as well as PDs who go into private practice end up as criminal defense lawyers.

    Prediction–McGuinness or one of his (former) colleagues will defeat Shirk handily in the next PD election. Until then, of course, Duval County will have some interesting times ahead of it.

  31. #31 |  Bill Cooke | 

    There are many good public defender offices in this country and a great many dedicated and intelligent men and women who work as public defender attorneys. It is a shame that scumbags like this “Public Defender” give the rest of us a bad name.

  32. #32 |  SusanK | 

    PDs are also elected in Nebraska (as are the chief prosecutors and the sheriffs). We happen to have a great one here in my county. Granted, I’ve only seen him in traffic court (when I’ve seen him in court at all), but he spends most of his time arguing for more $ and staff for his office, fewer crimes with mandatory minimums, and explaining how the system works to the elected officials that dole out the cash. Heck, right now his office is refusing to take cases because they’re too overworked and private lawyers are being appointed instead.
    This situation in Florida could end up costing the state way more money: postconviction actions alone could potentially clog the courts. It has voter-created fiasco written all over it.

  33. #33 |  The Bane | 

    Susan,
    The current PD, Mr White has been fighiting for more money and better support all his career. He always took care of his people and put the highest emphasis on client care. And what did he get for his trouble, a boot in the arse. He had the endorsement of all of the Sherrifs, the former Sherrifs, the last PD, the last mayor, and almost every lawyer in town including former Florida Bar president Hank Coxe.

    The office here in Jax had the lowest turnover rate out of the 7 metropolitan offices (Pinnelas, Tampa, Miami, Orlando, Jax, and West Palm and Broward) and is the only one out of the top 4 who is not refusing certain types of cases.

    The attorney from the top down are scared for their clients and even more scared about their jobs in this climate and in a legal community this small.

    When asked about retention, the standard was not dedication, work performance, or devotion to the office or cause, it was loyalty to him.

    That says it all.

  34. #34 |  max | 

    The problem I have is that the elected PD is serving two masters. Unless the US decides to scrap adversarial law, the PD should be concerned just with the affairs of the defendant which puts an elected official in the awkward position of having to act against the interests of those who hired him (the voters). of course a PD could try to act in the best interest of the public, but under an adversarial system they would be denying the defendants’ their rights to personal advocates for their interests.

  35. #35 |  Edintally | 

    Max,

    From where you are sitting, if you wouldn’t mind standing up, turning 180 degrees and sitting back down again. Thanks.

    When someone is accused of committing a crime, said persons rights and freedom are not the only thing in jeopardy.

  36. #36 |  Nick T | 

    “Shirk also said he believes that hundreds of people who are appointed public defenders by judges can actually afford to hire private lawyers. He said one way to curb such abuse would be to use his investigators to determine whether clients have sources of income not revealed in court. He would then seek to have his office withdrawn from such a case.”

    As a lawyer, this seems plainly unethical to me. I work for a public defender agency and we’ve had this question come up from time to time. The answer is ALWYAYS a very simple and quickly reached “we don’t question our clients elligibility, it’s not our job.” When you have a client it’s your job to help them and NOT undermine them in any way. It also treds on attorney client privilege and the inclusive work-product privilege. When you uncover info through investigations or when your client tells you stuff, that info is private and shouldn’t be used to undermine them and make their lives more difficult.

    Yes, lawyers have a duty not to facilitate or in some cases allow their clients to lie to the court, but that is only in very extreme circumstances, and they shouldn’t be spending their time investigating whether or not their clients are lying as an end in itself. Just shameful.

  37. #37 |  Nick T | 

    Once again, the FoP could endorse a ballot measure “Free puppies for kids with Cancer” and I’d think long and hard before voting for it.

  38. #38 |  Edintally | 

    the puppies would probably be wired for video and sound to make sure those kids are on the up and up :)

  39. #39 |  kishnevi | 

    Max, FYI–from the Rules of Professional Conduct
    A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty to the client. See rule 4-1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel’s professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer’s professional independence.–Comment to Rule 4.1-7

    (f) Compensation by Third Party. A lawyer shall not accept compensation for representing a client from one other than the client unless:
    (1) the client gives informed consent;
    (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
    (3) information relating to representation of a client is protected as required by rule 4-1.6.–Rule 4.1-8

    Or, in one sentence–a public defender must put the interests of his individual client ahead of the interests of both himself and the public who elected him.; and to not do so is a violation of professional ethics. (Yes, we lawyers have ethics.)

  40. #40 |  max | 

    Aye Kishnivi,

    I’m not saying it is impossible, but it is certainly difficult (unless the PD sells the defendants out). A(n) (elected) PD should act in the best interests of the defendant yet must justify those actions to the electorate, whose interests may be in conflict with those of the defendant. Not an impossible to resolve conflict, but not a good place to be, especially given the nature of politics. “[A]wkward” was the word I used originally and I think it best describes the situation.

  41. #41 |  Andrew Williams | 

    Eric Holder can go fuck himself. And then post the video on YouTube. And even then I wonder if I’m being too lenient.

  42. #42 |  Matt Shirk: Is it time to consider changing Florida’s system? « Jacksonville Politics | 

    [...] of electing Public Defenders?  Several national blogs and their posters have suggested just that (here, here, and here). (Tip of the hat to Spidey for providing the links in a comment to another [...]

  43. #43 |  PD News Roundup — Public Defender Stuff | 

    [...] Shirk, continues to create controversy by continuing to fire public defenders. Shirk is the guy who promised during his campaign “not to oppose funding cuts to the office he was running for, and a [...]

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