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Tuesday, September 18, 2012

An Era of Change at the State Attorney's Office of Orange/Osceola Counties?

If you don't live in Orange or Osceola County, then you probably didn't pay too much attention to the local election for State Attorney.  And if you live in one of those two counties, then there's still a decent chance you didn't pay much attention to that race.  However, as a criminal defense attorney and Central Florida resident, the race impacted not only my community as a citizen but also my livelihood.  Having practiced criminal defense for the last 5 years in the ninth judicial circuit (which is defined as Orange and Osceola counties), I've had plenty of experience dealign with the State Attorney's Office.  To be blunt: my opinion was not very high.  To be clear, there were plenty of upstanding, honorable and highly skilled prosecutors who zealously and passionately represented the best interest of the citizenry.  Some of them have left the SAO, and some have stayed to continue to "fight the good fight" even in trying times.

However, the State Attorney's Office had problems.  Big problems.  The kind that make you feel unsafe as a fellow citizen, and frustrated as a lawyer.  I'll address the more noticeable problems:

1) The abysmal low conviction rate at trial.  Now, the low conviction rate at trial was probably due to a multitude of factors.  One of the ones I read in the press from the incumbant State Attorney Lawson Lamar is that he enouraged his office to not just take the slam dunk cases to trial, but to also take "tough cases" to trial (you know, the ones without as much credible evidence).  Here's the problem with that logic: it opens up the very real likelihood that many of those "tough cases" are prosecutions of people who are not guilty of what they are accused of.  Now, I don't believe that every client who told me he/she didn't do it was actually innocent.  But I did truly 100% believe in the innocence of some of my clients who went to trial.  Mistaken suspect identification by witnesses is a reality.  It happens all the time, and we hear about people being released from Death Row who have been exonerated (proven innocent) after a wrongful conviction.  And in many of those cases, there was a faulty witness identification.  Also, not all people who claim to be victims are truly victims.  I hate to say this because the thought sickens me, but there are people in our community who lie to police and claim to be the victim of a crime when they are not victims. Some want attention, some have a motive, and some are just bad people.  But too often, the attitude at the State Attorneys Office wasn't to seek the truth, but rather to blindly assume the truth is whatever the complainant claims it is, despite the holes in the story.

The other complication is that the prosecutor's role is not to convict.  Rather, the role of the prosecutor is to seek justice.  Which means that, as a prosecutor, one should believe wholeheartedly that the defendant is guilty of the crime for which the defendant is being prosecuted.  If, during preparation for a rape trial, the prosecutor learns that the DNA recovered from the alleged victim does not match the defendant's DNA, then the case should be dropped, even if the alleged victim swears up and down that the defendant is the person who committed the crime.  And the case shouldn't just be dropped because it is unlikely the jury will convict, but because (more importantly) the prosecutor's duty to seek justice dictates that he/she should not prosecute someone who may very well be innocent.

In my opinion, Lawson Lamar's philosophy that his office should take "tough cases to trial" meant that in, in a lot of cases, innocent people were being prosecuted, prosecutors weren't looking at their evidence with a critical eye, and sometimes, justice was not being sought.

2) The disparity in salaries for employees, and having too many employees.  The SAO under Lawson Lamar had an incredibly large gap between it's managers, senior level assistant state attorneys, and new hires.  I'm not sure what the starting salary is for an assistant state attorney at present, but at one point I knew several assistant state attorneys who were making less than $40,000 annually.  Here's the problem: it is difficult to recruit and retain quality lawyers at that salary.  Particularly when increases in salary are few and far between promotions.  Even attorneys who have been at the SAO for nearly a decade and have been handling sex crimes for over 5 years are making less than $70,000.  What is that person's incentive to stay at their office after 5:00 PM to prepare for a triple homicide or come in on the weekend to prepare for a kidnapping/gang rape case?  The truth is that the SAO had a lot of lawyers who are just Monday through Friday 8:30-5:00 people who didn't deem it worth their while to work after hours.  Now, not everyone was like that.  I knew several prosecutors who worked hard during what should be their off-time so that they could be prepared for a particular hearing or trial.  But, in my opinion, they tended to be the exception to the rule.  And coming in during off time may not be necessary in a lot of jurisdictions, but Orange-Osceola counties are HUGE.  The number of cases in the criminal justice system in those counties is staggering and growing at a rate higher than any other county in Florida.  You cimply cannot be prepared and know everything about the cases in your caseload if you don't put in the extra time.

Now, one could argue that the fault lies in the budget, not the leadership at the SAO.  And to that, I would ask why certain attorneys at the SAO receive salaries in the triple figures if the budget is indeed so strapped?  Why are there multiple managers who earn over $100,000 while the public defender's office in that same circuit only has 1 employee who earns 6 figures (the public defender himself)?  And why are there so many non attorney employees at the SAO?  Besides the lawyers, the SAO also employs legal assistants (usually one per every 2 or 3 attorneys), victim advocates, and witness coordinators.  Perhaps getting rid of the witness coordinators would free up resources to give attorneys higher salaries?  But then *gasp* who will call the witnesses to tell them to be in court?  Hmm, how about the lawyer does that?  That would give the lawyer a chance to talk to the witness anyway, who they've probably never spoken to.  And that bring me to my third point...

3) Lack of accountability and lack of discretion.  The SAO has a division called Intake, whereby a dedicated group of assistant state attorneys review complaints and police affidavits and decide whether to formally file charges, and if so, what those charges should be.  These attorneys in the intake unit are not the attorneys who will handle the case after charges are filed.  Rather, the case is then reassigned to a prosecutor who works in front of the judge to whom the clerk has assigned the case.  Thus, the prosecutor handling the case and taking it to trial is usually not the prosecutor who actually decided what charges to file.  This is a big problem, because for that prosecutor to make any changes such as dropping the case or amending the charge, he/she must second guess the prosecutor who filed the charges in the first place.  Also, the prosecutor who filed the charges doesn't have to worry about "over charging" because he/she doesn't actually have to do anything else with the case such as selecting a jury, attending depositions, etc..  I actually spoke to an attorney who worked in the intake unit (interestingly, he was the State Attorney for Orange/Osceola before Lawson Lamar took over in 1988), and he told me that he regularly overcharges because he feels it gives the trial attorney some leverage for negotiation.  His point of view was so out of touch with the reality of what happened at the SAO.  Prosecutors rarely felt they had that kind of discretion.  A common theme was "I can't drop this charge because I'll get in trouble with my supervisor."  Now, maybe that's something they were all taught to say at their Orientation meeting at the State Attorney's Office, but it's ridiculous that a prosecutor shouldn't feel empowered to exercise their discretion given all of the facts and circumstances surrounding a particular case that he/she is handling.

4) Completely out of touch with the community.  The State Attorney's Office of the Ninth Judicial Circuit is supposed to represent the interests of the citizens of Florida, particularly the citizens of Orange and Osceola Counties.  While I was at the public defender's office in that circuit, our office constantly marched in local parades in the community such as the Martin Luther King parade that goes through Eatonville, or the Mental Health Awareness walk around Lake Lily in Maitland.  We volunteered to help veterans receive social services, help poor people obtain proper identification, participated in food and clothing drives, etc..  We were a visible presence in our community.  Because it's important to build that level of trust within your community.  However, that visibility was noticeably missing from the SAO.  It's not about fundraising in Winter Park, or just meeting with other politicians in Tallahassee.  It's about attending town hall meetings in communities where there's outrage over a police shooting, or discussing race relations in neighborhoods comprised of mostly minorities.  It's about letting your most down trodden know that you also represent them when you say you represent the people of Florida.  These are people who are not only victims of crime, but are also witnesses to crime.  Their's should be a voice that is heard.  But what else should be expected of a State Attorney who is not even visible to his employees, and doesn't set his foot into a courtroom?

Now, I know the State Attorney Elect Jeff Ashton worked most, if not his entire, career under Lawson Lamar.  So it suggests a complacency in that environment.  However, he has promised change, and I'm hopeful that justice will be served by the new SAO.  Because it has been heavily absent for quite some time.