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THE CHIEF JUDGE’S ATTORNEY RESPONDS, BUT LIKE EVERYONE ELSE, DOES NOT ANSWER THE $64,000 QUESTION:  WHERE IS THE LEGAL AUTHORITY TO IMPOSE “MANDATORY DONATIONS,” NOR HAS ANYONE CONSIDERED THE QUESTION OF WHETHER THE TERM “MANDATORY DONATION” IS AN OXYMORON

PART VIII

I  want to begin by thanking Ms. Kearson, who whether I agree with everything she wrote or not, treated my letter with the respect that every private citizen is entitled to receive from a public official by responding in a timely fashion, unlike Katherine Fernandez-Rundle, the Miami-Dade State Attorney, who in her ever-lasting and unbridled arrogance has yet to respond to either of my letters now going 30 days and counting.


I also appreciate the number of folks who have continued to log on and read the continuing saga that this story has become, because we’ve gone from the kind of entertaining chicanery that titillates most readers to far heavier fare involving legal arguments about the law and the treatment of criminal defendants that I suspect many readers would rather not devote much time to.


But, it is what it is, and so let’s get started with this latest chapter. 


Yesterday, I received a response to my Monday letter to Chief Judge Bertila Soto from her General Counsel, Linda Kearson.  Here is that letter.

First, I have to say that I am limiting my comments and response to the issues articulated in Part 1 of the letter.  While I have disagreements with Part 2 and the last paragraph, these are issues that I can, and will deal with privately.


Secondly, I have no problem in accepting or in agreeing with Ms. Kearson as she states in Part 1, that Cleveland v. State is the controlling law when it comes to providing all of the State Attorneys in Florida wide latitude and discretion in making the decisions that allow them to create and operate pretrial diversion programs. 


In fact, in the 2007 Memorandum prepare by then Chief of the County Court Division, Patrick Trese, that informed and instructed The Advocate Program and Court Options to start “collecting monetary donations...as a condition of Pre-Trial Diversion,” this case is cited at the end of the first paragraph of that memo.


You don’t need to be a lawyer, or even have any real knowledge of the law to know that State Attorneys have wide-latitude and discretion in how they make decisions leading to either trial or plea bargains, or even in some cases the refusal to prosecute some criminal defendants - all you have to do is turn on your TV and watch any episode of Law and Order to reach that understanding pretty quickly. That information has become embedded in our popular culture.


At the same time, it’s also pretty common knowledge that at every level of government whether it we start with the members of the United States Congress, all the way down some code enforcement inspector in some Podunk village in some back-water county in the the middle of the country, public officials can for political, religious or just spiteful reasons pass legislation, or made public policy decisions that are patently illegal, but do so with the full knowledge that unless someone has the time, energy and money to file a lawsuit, those laws and decisions will continue to be viewed and accepted as either the law of the land, or the accepted public policy of  that Podunk county.


Who among us has not heard at some point in their life some public official - from high government officials in the federal government to a cop on the beat - say, “If you don’t like it sue me, sue us, sue the City, sue the County, sue the State or sue the Federal government?”


The decision by Katherine Fernandez-Rundle in 2007 to impose a “mandatory donation” on individuals to whom her Assistant State Attorneys offered pretrial diversion was not based on any law that said she could do that, rather it was done on what was obviously a calculated decision to usurp her power as the State Attorney and impose these donations on misdemeanor defendants in a way that made those “donations” an integral component of them successfully completing the program.


By doing so she made all but impossible impossible for anyone other than someone who signed up for pretrial diversion to challenge these donations by filling a lawsuit.  It was in this way that she has managed to collect millions of dollars - for her “donor advised fund.”


It’s a classic Catch 22, with little or no tangible reward for a lone individual to take on such a fight, except the personal satisfaction of standing up for what you believe is right, and if it turns out that the person committed the crime that put them in that predicament to begin, then you can bet that that they’d get the maximum punishment for standing up for their rights, because standing up for your rights often comes with severe consequences.


NOTE: IF ANY ATTORNEY CAN COME UP WITH A WAY THAT WOULD PROVIDE ME STANDING, WITHOUT MY HAVING TO COMMIT A CRIME, I WOULD BE MORE THAN HAPPY TO TAKE THIS FIGHT ON AND FILE A LAWSUIT CHALLENGING THESE “MANDATED DONATIONS.”.


For now however, let us pause for a moment on the issue of “mandated donations” and address another more pressing issue involving a far more serious problem than collecting $5 million in questionable donations.


YOU CAN’T MAKE AN “INFORMED AND INTELLIGENT” DECISION BASED ON IGNORANCE AND A LACK OF KNOWLEDGE OF THE CULTURE OR THE LANGUAGE


While it is true that for the most part Ms. Kearson’s letter succeeds in trying to separate the County Court Judges of the 11th Circuit from the issue of how the State Attorney sets the terms for how her pretrial diversion program imposes ”mandatory donations,” Florida Statute 948.08 does not give a free pass to judges when it come to the implementation of these pretrial diversion programs.


I have highlighted a salient and important portion of Florida Statute that makes it very clear that not only do judges have a significant role to play, but in fact, given the current way in which the County Court System operates, it would appear that the problems with the implementation of the pretrial diversion program go far beyond an argument of collecting “mandatory donations.”

The important words here are, “...the defendant may not be released to the pretrial intervention program unless, after consultation with his or her attorney...”


Approximately 50,000 people go through the County Court system every year in Miami-Dade County, and given the make-up of the population in Miami-Dade County, a sizable number of those individuals speak little or no English, and  in many cases have little if any knowledge of the ways in which the American legal system operates - whether they watch TV or not.


The implications for all of those people if they plead guilty, or if they are found guilty because they chose - wisely or unwisely - to fight the charges can be life changing: and never for the better. Getting tagged with a criminal conviction - even a misdemeanor criminal conviction - can have a lasting impact on job prospects, housing prospects, access to government services, and any number of other social stigmas associated with having   a criminal conviction.


The problems of not having public defenders available to provide legal assistance in misdemeanor court is neither a new problem, or one that hasn’t caused concern.


In fact, six days ago, a story by the Miami Herald about Katherine Fernandez-Rundle and Carlos Martinez, the Miami-Dade County Public Defender - who were both re-elected without opposition last Friday - had this to say about Martinez’s victory.

So when you have a criminal justice system that does not guarantee or provide representation by public defenders for misdemeanor defendants ,  and you’ve got a sizable number of misdemeanor criminal defendants who don’t speak English, much less have little if any knowledge of a foreign criminal justice system, then the ability to make an “informed and intelligent decision” pretty much goes out the window.


The way the current system operate reinforces the drive to get defendants to quickly agree to pretrial diversion - with or without the ability to consult with an attorney - because the whole system is geared to running defendants through a process that treats them more like widgets on a conveyor belt with while lathering up the process with lip service being paid for the niceties of truth, justice and the American Way.


Given that the sheer volume of defendants could at any time overwhelm the the system if any number of them started saying, “I no speak English?  or “I don’t understand what’s going on here?” then the goal becomes getting people, in and out the door as fast as possible without too many questions being asked or answered.


And if the defendants don’t even know what questions to ask, that’s even better. 


So, the whole thing gets a fancy overlay of platitudes about “high standards of conduct,” while at the same time the people on the ground   treats the system like living in the Land of Oz, where nobody wants to look behind the curtain for fear that what they’ll find will cause nothing but headaches, heartburn and the expenditure of money that no one wants to spend.


Right now the judges in Miami-Dade County can’t get themselves a new courthouse, so what do you think would happen if they were given a choice between trying to get money for a new courthouse for themselves, or money for more public defenders in order to comply with the plain language of Florida Statute 948.08 that requires them to look out for the interests of misdemeanor defendants by making sure that ALL of them have had an opportunity to talk to a lawyer before they pop up in front of them?


Which one of these two fights do you think would elicit the efforts and support of judges, lawyers and all the other hangers on who need to be pals with these judges?


Florida statute 948.08 says in very plain language that:


     “... the defendant may not be released to the pretrial

     intervention program unless, after consultation with

     his or her attorney...”


The Florida Rules of Criminal Procedure, 3.111, on the other hand says that:


        “Counsel shall be provided to indigent persons in all

        prosecutions for offenses punishable by incarceration

        including appeals from the conviction thereof. In the

        discretion of the court, counsel does not have to be

        provided to an indigent person in a prosecution for a

        misdemeanor or violation of a municipal ordinance if

        the judge, at least 15 days prior to trial, files in the cause

        a written order of no incarceration certifying that the

        defendant will not be incarcerated in the case pending

        trial or probation violation hearing, or as part of a sentence

        after trial, guilty or nolo contendere plea, or probation

        revocation. This 15-day requirement may be waived by

        the defendant or defense counsel.


Now, this Rule doesn’t actually preclude a misdemeanor defendant from consulting with an attorney - and in fact it doesn’t apply at all to those defendants who can afford their own private attorneys - but it also doesn’t address the plain language in the statute that requires - not suggests, or advises, or allows - but actually requires a consultation between a defendant and his or her attorney before a judge can act on releasing a defendant to enter a pretrial diversion program.


For most, if not almost all of you who read this, this might seem like a lot of legalize that might not seem important or applicable to you, but just step back and look at this from a different perspective.


What if you were to go on a cruise, or on vacation to some foreign country  - like hundreds of thousands of Americans do every year - and for any number of reasons found yourself arrested and charged with a crime in that country - like hundreds and perhaps thousands of Americans do every year - and did not either speak the language, or understand what was going on around you as it related to the laws of that country.


Do you think that in that situation you would be able to make an “informed and intelligent decision,” if you found yourself in some other country’s courtroom without a lawyer? How many times have you seen a news magazine TV show that is about the plight of some American caught up in a foreign criminal justice system in just this kind of situation, and who has come out the worse for wear. 

And don’t think for one moment that Americans don’t come out of our own criminal justice system the worse for wear in far greater numbers than Americans in foreign countries, even when they do supposedly have legal representation. 


These are very serious issues, that have long been allowed to fester in this community without any proper discussion or attention,  and I contend that putting aside all the self-aggrandizing comments and platitudes about “high standards of conduct,” the problems with the pretrial diversion program operated by the Miami-Dade State Attorney starts with the fact that over the years thousands, if not tens of thousands of individuals have been shuttled through this system and into the arms of greedy two companies - one non-profit, and the other for profit, that are both highly leveraged and supported by lobbyists and powerful people with political connections and a vested interest in supporting these two companies for their own reasons - that have collected well over a hundred million dollars in fees as a result of the court system‘s failure to follow the plain language of FS 948.08 - to wit, turning a blind eye to the failure of tens of thousands of defendants inability to consult with an attorney before agreeing to enter such a program - but then by extorting money from them through a strong-armed, “mandated donation” scheme.


LET’S REALLY LOOK AT WHAT MANDATED DONATIONS MEANS


For the sake of argument, lets all agree right now that the Miami-Dade State Attorney has a legal right to impose “mandated donations” on criminal defendants as a condition for their successful completion of their participation in a pretrial diversion program.


Let’s accept that that’s a given.


So right now, Katherine Fernandez-Rundle is asking that that donations be in the form of a cash payments to a private foundation.


What if instead of cash money, the State Attorney decided that because there is a constant need for kidneys to be used for transplants, she would mandate the donation of a kidney in order for a defendant to enter her pretrial diversion program.


Now you and I, and probably an overwhelming number of others in the community would object to that, because that’s so severe that it flies in the face of common sense and fairness, but according to the claims that Katherine Fernandez-Rundle’s spokespeople and Ms. Kearson have made, under the provisions of Cleveland v. State, 417 So. 2nd 463,  she would be completely within her power in making a demand that the “mandated donation” of a kidney was the only way to get into a pretrial diversion program.


But, that’s foolish and would never happen, but what if instead of a kidney, the county were to have a severe shortage of blood for transfusions - like it sometimes does - and instead of cash, or a kidney,  she decided to roll up a Bloodmobile and demand that the “mandated donation” to enter the pretrial diversion program was now going to be a pint of blood.  Do you think that would be okay?


Remember, we’ve agreed that she believes that she has the complete power to impose a “mandated donation” of her choice as a condition for the successful completion of her pretrial diversion program.


Well, in Alabama, a judge did pretty much just that. As reported in the New York Times last October, the judge had a Bloodmobile parked in front of the courthouse and he told criminal defendants that, “If you don’t have any money, go out there and give blood and bring in a receipt indicating you gave blood. For those who had no money or did not want to give blood, the judge concluded, “The sheriff has enough handcuff.”


For his efforts, on January 21, 2016, the judge was censured for his community spirited efforts to force criminal defendant to “donate” blood.


Not only was this considered to be a “violation of bodily integrity,” but equally important a donation constitutes a free and voluntary gift of something of value, be it money,, a car, a boat a plane, a house, a body part or anything else of value including even one’s blood, as long as the person making the donation does so without the donation being forced under duress or coercion.


Anytime someone with legal or political authority makes the giving a donation - regardless of what that donation might be - a mandatory condition for the completion of a program that keeps you out of jail, then that “mandated donation” is nothing if not an act that provides extraordinary opportunities for exploitation and extortion.


That’s why in 1987, the Florida State Committee On Standards Of Conduct Governing Judges, stated in their opinion that:


         “A judge should not solicit funds for any educational,

         religious, charitable, fraternal, or civic organization, or

         use or permit the use of the prestige of his office for

         that purpose…”


If a judge is prohibited from imposing charitable donations, then a State Attorney who has even more power and authority to set the terms and punishments in criminal prosecutions should also be barred from engaging in the same behavior.


If it’s good for the goose, then it should also be good for the gander, and more importantly, it should be good enough to be a cornerstone for the “high standards of conduct” that governs the behavior of all the decision makers within the Miami-Dade Criminal Justice system.


But then, It’s Miami. Bitches!


THIS IS THE END OF PART VIII

(C) COPYRIGHTED 2016