Category Archives: Florida

FL: Matt Shirk and the controversy in Jacksonville

Cross-posted from ‘a public defender’:

As I alluded to in my last post, Jacksonville, FL, has an ethical controversy brewing. It involves the elected public defender Matt Shirk and some very questionable hiring decisions he’s made1.

Matt Shirk was covered here in 2008, when he defeated longtime public defender Bill White in an election for the job of Public Defender. Back then I lamented the problems with the position of public defender being an elected one. Shirk’s platform promised no changes to the way things were done, which was kept by him until the day he started when he made huge changes by firing all the most experienced attorneys2. He was also endorsed by the Fraternal Order of Police and promised not to raise questions about the integrity of their work.

This recent article, however, provides more troubling information about Shirk and his allegiances:

Before his election, Shirk was a relatively unknown in political and legal circles. But he had a strong backing from the local Republican party, the support of Sheriff John Rutherford and friend State Attorney Angela Corey.

Angela Corey, you remember, is the stalwart whose office prosecuted Zimmerman. But there’s more:

Shirk campaign’s website noted that he’d worked “under the direct tutelage of Angela Corey.” Many regarded Shirk as her protégé. (How close were they? After he was elected, Shirk spokesperson Ron Mallett referred First Coast News’ call for comment to Corey’s office.)

Shortly after taking office, Shirk drew criticism for firing the Public Defender’s most seasoned lawyers and many of those qualified to try death penalty cases. Shirk himself has never tried a death-penalty case or even a murder case.

When he was assigned as counsel for 12-year-old murder defendant Cristian Fernandez, a group of high profile criminal defense attorneys filed a motion to have him removed. Shirk eventually agreed step down as Fernandez’s attorney.

The evidence neatly sums up the fact that Shirk was elected purely because of his political leanings, his overtures to the police department and his close ties to the establishment, when, in fact, all three of those things should expressly disqualify him from holding the position of a supervisory public defender. His closeness to the the State’s Attorney’s office and the police department underline his extreme unsuitability to lead an army of attorneys whose job it is to undermine and confront those two establishments.

Not to mention him being utterly unqualified to be a regular public defender employee representing people accused of serious crimes.

But none of this matters to voters as he has apparently just started a second term. A man with no qualifications, with strong ties to the very people who are trying to put his clients in jail and a man with, shall we say, questionable judgment:

It was a turbulent month in Public Defender Matt Shirk’s office, beginning with the May hiring of a young woman Shirk sought out after seeing her photo on social media and ending with Shirk’s chief of staff asking a former investigator to help him avoid following the public records law.

I guess the flirting is whatever, but what really troubles me is the last bit: the cover-up that includes changing documentation and deleting access records:

We made public records requests July 22 seeking out details of the resignation of lead investigator Alton Kelly. At the time, we were told, there was no resignation letter. It was not until the Florida Times-Union was tipped off about a voice mail that we learned the Public Defender’s Office was not telling us the truth.

Ron Mallett, who is the chief of staff for Matt Shirk, left this message for Alton Kelly after our request:  “Hey buddy, it’s Ron. We’ve had a public information request regarding your resignation from Action News. Would you mind if we actually typed up a resignation letter so we don’t have to use the email, and make it, uh, more official? Anyway, if you want to give me a call back or shoot me a text and let me know what you think.” That voice mail references an email dated July 15, seven days before our initial request.

Here is a man, tasked with protecting the core Constitutional individual rights of all citizens, yet he has no experience, no training and no desire to do the job. Yet he’s in a position to affect the lives of so many and seemingly has only done so in a negative way.

Requiring elections for what should be independent positions like the public defender is a recipe for disaster. It becomes a political yo-yo, swinging back and forth between the favored child of whatever party happens to have a stronghold on that district3.

The lives of those these decisions affect are disregarded, because it is more important to have that job, than to do the job, apparently.

  1. The questionable firing decisions were made long ago.
  2. Among those he fired were Pat McGuiness and Ann Finnel, both of whom represented Brenton Butler in an infamous murder case in 2000, that resulted in Butler’s acquittal. Both McGuiness and Finnel were simultaneously featured in an Oscar winning documentary about Butler’s case.
  3. If you want to know how your state handles selection of public defenders and the delivery of indigent defense services, go here.

FL PD’s chief sleuth wins prestigious state award for work

From the SunSentinel:

The chief investigator for the Broward County Public Defender’s Office has received a prestigious state award for his innovative work on behalf of criminal defendants who can’t afford to hire a lawyer.

The Florida Public Defender Association presented Al Smith with the Investigator of the Year award last week during a state conference in Palm Beach County.

Smith, 63, a retired Fort Lauderdale police officer and Vietnam War veteran, was recognized for his use of police technology to help assistant public defenders find evidence that helped them represent, and even clear, their clients of crimes and uncover alleged misconduct by officers.

Read the entire story.

FL State Court Rules That Overworked PDs Can Withdraw From Cases

From The Miami Herald:

Describing what it called a “damning indictment” of representation for poor criminal defendants, the Florida Supreme Court on Thursday ruled that the Miami-Dade County public defender’s office could withdraw from a large chunk of felony cases because of excessive workloads.

This decision lifts the spirits of attorneys everywhere who, due to crippling caseloads, have been confronted with the difficult decision of picking and choosing which client gets legally competent and diligent representation and which do not, Miami-Dade Public Defender Carlos J. Martinez said….

The court divided 5-2 on the issue, with Justice Peggy Quince writing a majority opinion that said attorneys who represent defendants in third-degree felonies often have as many as 50 cases set for trial in a week.

“Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial,’’ wrote Quince, who was joined in the majority by justices Barbara Pariente, R. Fred Lewis, Jorge Labarga and James E.C. Perry. “Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in ’triage’ with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients….”

Attorney General Pam Bondi and a statewide group of prosecutors fought the public defender’s attempt to pull out of the cases. During Supreme Court oral arguments last year, Louis Hubener, an attorney for the state, pointed to a law that bars public defenders from withdrawing from cases solely because of “inadequacy of funding or excess workload.”

The Supreme Court found the law constitutional, though it disagreed about how the law should be applied.

“(The) statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances,’’ the majority opinion said.

Public defenders sometimes withdraw from representing people because of conflicts that arise, such as two clients being implicated in the same crime. The state has a system for the appointment of other attorneys to take cases when such withdrawals occur.

It’s probably safe to say that similar situations of underfunded PD systems, being routinely unable to prep cases or interview witnesses, and essentially engaging in “triage” are rampant in other states, as well.  Perhaps this decision can be influential in other states facing similar issues. One can hope…

Order in the Court as Broward Circuit Judge Matt Destry turns to Twitter

Updating an earlier post, from Examiner.com:

People ask – why should Howard Finkelstein be worried about tweets from the bench while he himself is better known for the longstanding “Help Me Howard” series on WSVN 7 News in Miami.

Perception – nothing but perception.

Judges – whether appointed or elected – are unlike public officials in the other two branches of government. They are expected to be impartial and impervious to influence. Every status update on Facebook or tweet on Twitter could be scrutinized for hints of bias or corruption. Moreover, every “friend” or “follower” can be potentially compromising in a future appearance before the court.

That’s why judges approach the question of social media with trepidation.

Americans constantly complain that the courts lack the transparency of the other branches. So why is an on-going Twitter feed from Judge Destry and the Broward County Courthouse being ridiculed and not applauded?

That is a question for “Help Me Howard.”

Read the entire piece here.

Public defender questions judge’s tweets

In a brief story that raises more questions than it answers, the Florida Sun-Sentinel reports:

Broward Circuit Judge Matthew Destry’s recent foray into the Twitter social networking site has ruffled the feathers of Public Defender Howard Finkelstein, who is questioning whether a judge should be tweeting from the bench.

What exactly constitutes “ruffled feathers” here remains unclear, but the phenomenon of judges tweeting and blogging certainly opens broad new possibilities for insight into what’s happening on the bench, as well as lots of opportunities for impropriety. Is Finkelstein just worried about those possibilities, or is there something more to this story?