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Tood Foster defends constitutional rights

12/12/2008 1:24:00 PM

Lawyer volunteers to take case from attorney pressed into service
By Gary Blankenship
Senior Editor
Originally published in the Florida Bar News, December 2008

Calling it an “important” case, a Tampa attorney has volunteered to represent the interests of Terry Green in an appeal where Green’s involuntarily appointed defense lawyer is trying to remove himself from the case.

Todd Foster will represent Green pro bono, according to an order signed by 12th Circuit Chief Judge Lee Haworth late last month. Green is one of multiple defendants in a Manatee County gang-related RICO case filed by the statewide prosecutor earlier this year. Haworth, unable to find a public or private attorney to take the case, ordered Bradenton attorney Gregory Hagopian to represent Green.

Hagopian unsuccessfully (he was the third attorney named to represent Green) tried to withdraw, and that denial has been appealed to the Second District Court of Appeal. (See story in the November 15 Bar News.) Hagopian has said taking the case could adversely affect his private clients and possibly bankrupt his practice because of the voluminous evidence and the hundreds of potential witnesses involved in the case.

“It’s the right thing to do; I think there’s a real Sixth Amendment issue that’s implicated by the case in Manatee County,” said Foster, who is on the board of directors of the National Association of Criminal Defense Lawyers, of his decision to represent Green’s interests in the appeal.

The matter could also affect many Florida lawyers because public defenders are finding themselves overburdened, Foster said, and judges may soon find they have more defendants than public defenders or private attorneys willing to take the cases. He noted an 11th Circuit judge recently ruled that the Miami-Dade public defender could refuse to accept defendants in new third degree felony cases, but that order was stayed pending an appeal to the Third DCA.

“You’ve had an issue in Dade County where the public defender has said, ‘We can’t take any more cases.’ This is an issue that is coming more and more into focus,” Foster said.

“My argument is if the state charges him under the constitutions of the U.S. and Florida, he has the right to an effective assistance of counsel. If he’s indigent, the U.S. Supreme Court has said the state has to provide effective assistance of counsel. If the state is not providing him with effective assistance, then we have a Sixth Amendment issue. They can dismiss the charges or they can come up with counsel to address the Sixth Amendment concerns.

He added, “If you draft a counsel who feels he or she cannot render effective assistance of counsel because of other concerns, then I don’t think it’s effective.”

In another development in the case, Judge Haworth has ordered a delay in Green’s RICO trial while the appeal about Hagopian’s appointment is ongoing. Judge Hawworth, in the November 18 order, noted that Green’s interests won’t be prejudiced because he is serving a three-year sentence in state prison following a plea agreement in a different case.

Haworth noted Hagopian’s appeal and that a case management conference for the Green case was scheduled for December 11. After that conference, the work for Hagopian, if he’s kept on the case, could be expected to increase exponentially, the judge wrote in the order.

“Given the novel issues in the case and Mr. Hagopian’s position that his involuntary appointment as counsel is confiscatory and unconstitutional, allowing the case against his client to proceed in the normal course without any assurance that he will ever be paid may cause counsel irreparable financial harm,” Haworth said in the order.

He went on to postpone the case management conference until the Second DCA acts on Hagopian’s appeal. The possibility of such a stay was discussed with prosecutors at the fee hearing and, “while it imposes challenges for the prosecution, there was no showing of substantial prejudice,” the order said.

The hearing also dealt with Hagopian’s request to be paid for 64.4 hours of work on Green’s case and $62.70 of expenses. Haworth had ordered the Justice Administrative Commission to pay Hagopian $110 an hour in the case, above the normal $75 an hour paid for extraordinary cases.

The JAC renewed earlier objections, saying the judge exceeded his authority overriding the state law setting compensation rates, that the JAC cannot exceed the $75 per hour rate, and that state law does not provide for interim billing.

Judge Haworth again rejected those arguments, but he also rejected Hagopian’s request, saying he had to follow procedures set out in F.S. Chap. 27 and use JAC forms. He added the attorney can reapply using the proper forms and procedures.
 
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Gary Balnkenship

Florida Bar News

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