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In a move that’s upsetting some judges, the Broward County, Fla., public defender has forbidden his attorneys from advising indigent criminal defendants to plead guilty at arraignment unless they’ve had “meaningful contact” with their clients in advance. Public Defender Howard Finkelstein, who was elected without opposition last year, announced the policy change, effective immediately, in a memo to each of Broward’s 29 circuit and county court criminal division judges on Friday afternoon. Finkelstein told the judges that pleading a client “guilty or no contest” without establishing an attorney-client relationship and investigating the circumstances of the case violates Sixth Amendment protections. “We will make every effort to meet with clients prior to any court hearings,” the memo says. “However, if such a meeting has not taken place, we are legally and ethically constrained from recommending any plea to a client.” Too often, he said in an interview, public defenders are ill-informed about their clients’ cases and circumstances before advising them to take pleas offered by prosecutors at arraignment, which is when charges are formally presented. “It’s not fair to make life-altering decisions while handcuffed to a chair with 50 people standing around,” Finkelstein told the Daily Business Review According to Finkelstein and his staff, about 80 percent of all criminal defendants — and 40 percent of all accused felons — plead guilty at arraignment in Broward. Many of them are represented by one of his 128 assistant public defenders. “They meet with an attorney for 60 seconds, then they plead guilty and surrender their rights,” Finkelstein said. “That’s going to stop.” Chief Broward Circuit Judge Dale Ross did not return calls seeking comment. Judge Charles M. Greene, administrative judge for the criminal division, declined comment. But one Broward criminal court judge acknowledged that judges are concerned about the new policy. “Judges may be upset that their dockets will be clogged by cases that would otherwise be resolved at arraignment,” said the judge, who did not want to be identified. “Everyone is concerned about their case numbers.” The judge also warned that the move could hurt Finkelstein’s clients. “Prosecutors may say we aren’t offering pleas at arraignment anymore,” the judge said. “The people that would penalize are the clients. The best plea you get is at arraignment.” “I suspect a lot of judges will be upset by it,” Finkelstein acknowledged. “But this is a very important thing. We are not doing this to be obstreperous or obstructionist or cantankerous.” Broward County State Attorney Michael Satz is backing Finkelstein. “We’re supportive of anything that makes the criminal justice system better,” said Satz spokesman Ron Ishoy. “The new public defender has identified a problem on the defense side and has set out to fix it. We’ll do our part to help make it work.” Anthony V. Alfieri, the director of the University of Miami law school’s Center for Ethics and Public Service, called Finkelstein’s initiative a “very important” step toward securing competent representation for low-income defendants in Broward. “The old process is not consistent with the proper discharge of criminal defense lawyers’ duties and responsibilities,” Alfieri said. MEET, GREET AND PLEAD Finkelstein’s policy change is his latest move away from the policies of Al Schreiber, his politically powerful predecessor who chose not to run for re-election last year after nearly 30 years in office. Finkelstein runs an office with a $15 million budget. But he’s best known for his long-running “Help Me Howard” consumer advice segment on WSVN-Channel 7. His office handles about 60,000 defendants a year, including about 18,000 charged with felonies. In January, Finkelstein told his staff to contact any defendants who haven’t gotten out of jail within 48 hours. He also created an early representation unit, and staffed it with three lawyers and four interviewers. “In the past, we did nothing until the time of arraignment, and that’s 4 1/2 to six weeks after arrest,” Finkelstein said. In that time, perishable evidence can be lost, witnesses can disappear and lives can fall apart. “You can lose your job, your apartment, even your family,” he noted. The second part of Finkelstein’s initiative is to end the practice at arraignment of “meet, greet and plead.” Typically, those deals help defendants get out of jail immediately but stain them with a felony conviction and set them up for consequences if they have future encounters with law enforcement. Palm Beach County Public Defender Carey Haughwout said his office and that of the Miami-Dade public defender also frown on the practice of meeting and pleading clients guilty. “Pleading guilty is something that will be with clients forever because withholding adjudication or sealing records doesn’t matter anymore in the computer age,” Haughwout said. “So clients need to be aware of consequences and options, and lawyers can’t advise them simply by looking at a [probable cause] sheet at arraignment.” Finkelstein acknowledged that such a large system could bog down if there’s any significant slowdown in pleas. But any effect wouldn’t last long, he argued. Besides, early intervention will allow public defenders to analyze cases quicker, resolve them sooner and move them through the system faster. “If that’s done before arraignment, there will be no prohibition on entering a plea,” Finkelstein said. The public defender said he has no problem with the general idea of entering pleas at arraignment, but rather with having clients do so without first having a proper consultation with their lawyer. “Just because you are poor, it doesn’t mean you are entitled to a lesser-quality of lawyer,” he said. Under Finkelstein’s new policy, public defenders would remain ethically obliged to tell their clients about any plea offers from prosecutors, at arraignment or otherwise. But without their lawyer’s recommendation that they accept the offer, most defendants likely would refuse it. SIXTH AMENDMENT PROBLEM Pleas at arraignment began to occur about 20 years ago in Broward in response to jail overcrowding and federal court mandates to reduce the number of inmates, said Chief Assistant Broward Public Defender Bob Wills. “What started as a system issue has snowballed into a case management issue,” he said. “It shouldn’t be that way.” But the desire of judges to move cases expeditiously is now at odds with the Sixth Amendment right to the effective assistance of counsel. The first rule of the American Bar Association’s model rules of professional conduct says “competent representation” requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” “You can’t give advice sufficient for your client to make an informed decision if you don’t know what’s in the background of your client or the case,” said Randolph Braccialarghe, a Nova Southeastern University law professor and former Broward prosecutor. In the end, Finkelstein said, the righteousness of the change likely will win over critics. “People will bristle and everyone will think the sky’s falling, but in a short period of time the system will adapt,” he said. “This really serves everybody. You don’t want people in the community thinking there is one kind of justice for the rich and one kind for the poor.”

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