Howard Finkelstein: Broward’s cities, courts deny legal rights to poor and homeless

By Dan Christensen, BrowardBulldog.org

Howard Finkelstein

Accusing Broward’s courts of failing to protect the civil rights of the poor and homeless, Broward Public Defender Howard Finkelstein has asked Chief Judge Victor Tobin to “instruct the judiciary” to make sure that indigents arrested for violating municipal ordinances have lawyers.

In a Jan. 6 letter, Finkelstein accused the courts of allowing Broward’s cash-strapped cities to “systematically” ignore their legal obligation to pay for defense lawyers to represent poor people arrested for minor city crimes like panhandling or carrying an open can of beer.

“Both entities are responsible for the denial of due process and the prolonged incarceration” of those accused, said Finkelstein. He urged immediate action by the courts to prevent a potentially costly class-action lawsuit.

“If the cities do not fulfill their legal and moral obligation, the courts should dismiss every case presented,” he said. “If our cities wish to use the system, they need to pay. Otherwise, they need to stop arresting poor homeless people.”

Cities adopt and enforce such ordinances to promote the “quality of life” for residents in public places.

Finkelstein’s office has not represented indigent defendants arrested for municipal violations since the Legislature changed the way such services are paid for by the state several years ago. Instead, cities are responsible for appointing a municipal defender.

The Public Defender’s Office estimates that as many as 50 indigent defendants accused of municipal crimes come before Broward judges every week.

Court rules in Florida require the appointment to occur on or before a defendant’s first appearance in front of a judge. But Finkelstein says that’s not happening and that defendants often plead guilty to a deal that gets them out of jail based on time they’ve already served.

“There has never been an appearance by any city public defender on behalf of these defendants at magistrate court,” said Finkelstein, who is best known locally as “Help Me Howard” on Channel 7. “These defendants are accepting pleas without consulting an attorney even though the nature of the charges suggests many of them may suffer from mental illness.”

In an interview Monday, Judge Tobin said Finkelstein’s letter is the first he’s heard about a lack of representation for indigent representation in municipal cases.

“I was under the general impression that a great many cities had either stopped arresting for municipal ordinance violations or were using a similar state statute, or had pooled together or made some arrangement with John Fry,” Tobin said.

Fry said several cities, including Fort Lauderdale and Hollywood, had paid him on a non-contract basis to handle such cases. He said there was no process by which cases were assigned and that judges would appoint him if an indigent defendant requested an attorney, or a concerned public defender tipped him to a defendant who needed help.

“It was case by case,” said Fry, who was sworn in Monday as a Broward County Court judge. His defense duties have been handed to Fort Lauderdale lawyer Steven Schaet.

But some defendants fell through the cracks.

Finkelstein’s letter cites the example of Benigno Fernandez who was arrested by Hollywood police on Nov. 30 on a charge of “soliciting a charitable donation without a permit.”

Benigno Fernandez

Fernandez didn’t show for his arraignment, and a judge issued a warrant with a $150 bond. He was picked up Dec. 29 and spent eight nights in jail until a judge released him – shortly after Finkelstein’s letter.

Before that Chief Assistant Public Defender Lynn DeSanti contacted an attorney for the city of Hollywood about Fernandez’s plight.

Finkelstein said the attorney “did not know who the city’s public defender was and seemed unconcerned about Mr. Fernandez’s incarceration. She advised Ms. DeSanti that, if she was so concerned, she could arrange to have him placed on the docket herself.”

He termed the city’s response “both outrageous and illegal.” City Attorney Jeffrey Sheffel did not respond to a request for comment.

In 2009, Fernandez spent 39 days in jail without the benefit of a lawyer on a Hollywood charge of carrying an open container of alcohol. He was later adjudicated guilty and sentenced to time served.

“The court did nothing to protect Mr. Fernandez or sanction the City of Hollywood. It simply looked the other way,” Finkelstein wrote.

The letter also informed Judge Tobin that Broward’s cities are not, as required by state law, paying the cost of housing nonviolent municipal offenders they feed into the jail system.

Broward Sheriff Al Lamberti said Finkelstein is correct, “They’re not paying.”

The sheriff said it now costs the county $113 a day to keep municipal offenders in jail. The tab for Fernandez’s recent eight days in jail was $904; in 2009, it was over $4,000.

Lamberti said the burden on the county is significantly less than a few years ago. He credited a push several years ago to lower the jail population that led to the release of hundreds of municipal defendants.