Criminal Justice

Here's a Bad Idea…


…electing public defenders.

Imagine the perverse, overly law-and-order sentiment that pervades the elections of judges and prosecutors now applied to the selection of who will represent the indigent accused.

Witness Matt Shirk, a Republican recently elected public defender in Jacksonville, Florida. Shirk, who was backed by the local chapter of the Fraternal Order of Police, has never defended a homicide case. His campaign promises included a vow not to oppose funding cuts to the office he was running for, and a promise to squeeze as much money as possible out of indigent defendants, including a proposal for hte postponed billing of acquitted defendants who might later be able to find some employment.

Shirk also promised during the campaign not to make drastic changes to the staff of the public defender office. But last week, he announced he'd be firing ten senior-level attorneys and three administrators.

As it turns out, several of the fired attorneys Shirk fired worked on the high-profile case of Brenton Butler, a 16-year-old wrongly accused of the robbery and murder of an elderly tourist. The Butler case was a huge embarrassment for Jacksonville's sheriff's department. Trial testimony suggested Butler's confession had been beaten out of him by detectives with the department. Butler's case eventually became the subject of the Oscar-winning HBO documentary Murder on a Sunday Morning. The sheriff's department apologized to Butler, and reopened its investigation into the murder.

You'd think the kind of attorneys who could expose that kind of injustice (and, of course, expose the fact that the tourist's real killer was still on the loose) would be exactly the sort of people a public defender would want on his staff.

Pat McGuiness, one of the fired public defenders who worked on the Butler case, says Shirk hasn't even had the time to interview or review the personnel files of the people he fired. McGuiness alleges that Shirk's axing of some of the office's most skilled and experienced attorneys was a favor, in exchange for the police support he received during the campaign.

Shirk has yet to respond to those allegations, or explain his rationale for the firings.

(Hat tip to Bobby G. Frederick)

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  1. worse, there is probably no legal remedy for this.

  2. But electing judges works so well!

  3. Reason needs a “Florida” tag. Of course a “Retarded” tag could serve the same basic function.

  4. Sounds like the cops spent more time and effort getting the public defenders fired than they spent trying to find the real murderer. Why does this not surprise me?

  5. “This is Papa Bear. Put out an APB for a male suspect, driving a… car of some sort, heading in the direction of, uh, you know, that place that sells chili. Suspect is hatless. Repeat, hatless.”

  6. “Put out an APB on a Uosdwis R. Dewoh. Uh, better start with Greektown.”

  7. The following is a paid announcement by the Shirk for Public Defender campaign:

    ‘Are you tired of the overzealous public-defender attorneys who defend poor criminal suspects? I know I am. Hi, I’m Matt Shirk – Shirk by name, shirker by nature.

    ‘My opponent *says* he doesn’t want to put a lot of work into his job, but the record says otherwise. My opponent has actually worked overtime trying to find ways to get poor clients acquitted!

    ‘That’s not what I plan to do. As your public defender, I will cut some of the frills from the job. If the prosecutor offers a reasonable plea-bargain, like one death sentence instead of two, I will encourage my clients to take it. I will cut the budget of the office so much that we won’t even be able to afford lunch, much less researching possible defenses. I’ll clock in at 9, plead out all my cases, and spend the rest of the day at the golf course. Result: More people behind bars, no more skeptical questioning of brave police officers just because they cut a few corners to nail the guilty (or people who *look* guilty).

    ‘Vote for Shirk – I will work hard not to work hard defending these slimeballs.’

  8. “The police? The police. The streets are flooded with the ejaculate of the homeless, and you people are counting on the police?”

  9. Mo | November 25, 2008, 1:03pm | #

    At least Florida got something right today.

    I think that’s disgraceful, placing children into a situation like that!

    Do you realize they have flying cockroaches in that state?

    C’mon, there are gay couples in Massachusetts that would love to adopt.

  10. At least Florida got something right today.

    Today’s euphemism is “gay-friendly Key West”

  11. This one will really get you.

    I live and work in Jacksonville and on the (dreadfully bad) local news last night they interviewed numerous people involved including two of the fired attorneys.

    The real kicker was that the news reporter stated that Matt Shirk’s response to repeated requests to comment on the issue was to refer everyone to the District Attorney’s office.

    The newly-elected district attorney, Angela Corey, BTW, was also endorsed by the local Sheriff’s Office but was not only NOT endorsed but in fact, fired by the previous D.A., Harry Shorstein.

    In speaking to the news reporter, Corey said that “fired” was an inaccurate term to describe Shirk’s move and stated that all attorneys were expected to resign and resubmit for rehire…which of course doesn’t explain why all of the attorneys were told just a week prior that they were keeping their jobs.

    I used to be a reporter here and I can state with few exceptions that Jacksonville is run largely by dickheads.

  12. Electing judges sucks for a lot of reasons, but appointing judges sucks for a lot of different reasons. The problems here are the monopoly on force and monopoly on justice, not on the method for choosing the people who sit in those monopoly positions of power.

  13. But electing judges works so well!

    Better idea: let the governor appoint the entire judiciary, the entire bureaucracy AND any Senators that fall along the way.

    I’ve heard of the strong executive, but sheesh.

  14. Hmmmmm . . . not beating up on Mississippi today. I have mixed feelings on that score, Balko.

  15. I’m outraged that anybody with multiple functioning neurons between their ears would think this was approaching a search for truth or justice. Of course it is from the state famous for the citizenry’s inability to fill out a ballot.

    Damned SCOTUS meddlin’ in our good ol’ boy southern justice requiring representation for indigents. We’ll show them.

  16. Electing district attorneys I don’t have a problem with — I mean, have you seen what political appointees can be like? And, didn’t Reason have a series of articles praising an elected D.A. in a large metro area in Texas? The people defending the populace against criminals should reflect the public will.

    But, electing public defenders — meh. Public defenders have the dirty job of defending people accused of committing offenses against the public — can’t reasonably expect the public to elect someone who will zealously act as a check and balance against the tyranny of the public majority and try to curb the worst excesses of the mob.

  17. What’s to stop elected officials from campaigning on a promise to appoint Public Defenders who are just as tough on crime as the District Attorneys?

  18. Seems like the problem isn’t the system of electing public defenders, the problem is the electorate. You can’t blame the system of electing sheriffs for Joe Arpaio, you blame the people that keep reelecting Joe Arpaio.

  19. Seems like the problem isn’t the system of electing public defenders, the problem is the electorate. You can’t blame the system of electing sheriffs for Joe Arpaio, you blame the people that keep reelecting Joe Arpaio.

    Of the people who show up on election day –

    Irrational > Sane
    Stupid > Smart
    Naive fools > Cynics

    I’m not against universal adult sufferage, but sometimes I just shake my head and mutter “these people are just too fucking stupid to hold the franchise”.

  20. The last line of defense against the goverment should not be elected and be a goverment position. By making the public defenders office a political postio. the power switches to the prosecution. It takes a check out of the system. it makes the legal process much more alterable to the whims of the majority, which can not be trusted to protect the rights of the minority.

  21. If only we could get _all_ of our underqualfied elected officials to downsize their departments into non-existance…

  22. wow. glad I don’t live in Jax anymore. in one sense, Jax is really part of Georgia, not Florida. not that we don’t have weirdos, idiots, and bad ideas in the rest of the state, of course.

    just 3.5 more years and I can leave.

    prolefeed – good point about elected public defenders

    J sub D – I’m firmly in favor of an intelligence test for voter registration

  23. Gee, I hate to spoil the fun everyone is having with Florida and law-and-order types, but San Francisco elects the Public Defender too, and so of course we have a bleeding-heart leftist and a crime problem.

  24. Wait. How could a “bleeding-heart leftist” public defender equate to a crime problem? Are you suggesting the public defender is providing too good a defense?

  25. Florida looks like a big, droopy dick for a reason.

  26. Papaya,
    By “crime problem,” do you mean too little crime? Because according to these stats, SF is the ninth safest city over 500K people in the US. Curse those bleeding-heart leftists and their low crime (shakes fist).

    FWIW, Phoenix is number 10 for highest. Which only increases my confusion even more about the continued existence of Arpaio.

  27. You can elect DAs because they represent the public in criminal cases. The cases are usually styled City of X or State of Y v. Dirtbag.

    Public defenders, despite their title, do not represent the public in criminal cases. Their client is the defendant.

  28. It is odd to me that Jax can have a different system than the rest of Florida. I thought that sort of standard would be set at the state level

  29. Mo, we all know what they say about statistics. I’m sure lots of crime here goes unreported. I didn’t bother to report the two times my car was broken into. What’s the point? It’s not like the CSI team is going to gather evidence and track down the perps.

    Citizen Nothing, SF has a long history of going to extreme lengths to protect criminal’s rights, at the expense of everyone else. We were especially considerate to young illegal alien gangsters, at least until one murdered a father and two children for nothing, earlier this year.

  30. Sure there are unreported crimes in SF. But there are unreported crimes in every city. I could match your anecdotes about crime in SF with mine, from when I lived there 5 years ago, or other people that have never been the victims of crime while living there. So what’s your evidence for your claim?

  31. Forgive my ignorance, but how are public defenders selected in jurisdictions where they’re not elected? And how is that process immune to political interference?

    I agree that electing public defenders may produce negative outcomes, but short of having a great benevolent libertarian despot make all the decisions in govt, I’m skeptical that there’s any way that doesn’t produce negative outcomes.

  32. Hell, at the least the incoming public defender should not be allowed to just fire everyone, there should be some notion of civil service.

    In theory prosecutors are supposed to be officers of the court who are searching for truth rather than trying to win every case. And in theory the public would hold them to such a standard.

    In theory…

  33. CED: Are you saying you want criminals to go free? Think of the children!

  34. “In theory…”
    In theory elected officials are supposed to uphold the Constitution and government, within its limits, in the public interest.

    Theory =/ practice

  35. In theory prosecutors are supposed to be officers of the court who are searching for truth rather than trying to win every case.

    Where do you get that?

  36. Matt Shirk must be a fool.

    Just based on what hes done so far, every criminal defendant that his office represents will be able to bring a bona fide claim of ineffective assistance of counsel for every conviction AND every guilty plea.

    Sure, most will probably be denied, but hes opening the floodgates here.

    On an aside: as a practicing criminal defense attorney, it never ceases to amaze me the amount of effort law enforcement will go to in order to cut corners and make their job easier. They’d only need to put half as much effort into things if they’d just try to do it right from the get go.

  37. “Matt Shirk must be a fool.”


  38. “Where do you get that?”

    You’ve never heard of the concept of all attorneys as officers of the court with certain duties towards justice over and above winning your case?

    Shit, I don’t have time to explain such a commonly used legal concept so google the term and then yell at your law school profs for not doing their fucking job. If these are the same people who teach you arguing skills it would explain a lot…

  39. U.S. v. Berger, 1935:
    “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

    Model Rules of Professional Conduct
    Rule 3.8 Special Responsibilities Of A Prosecutor – Comment
    [1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.

  40. Backing up CED: why do you think that prosecutors are required to turn over exculpatory evidence to the defense, but defense attornies aren’t required to – in fact, are forbidden from – turning over evidence of guilt to the prosecution?

    Why do you think that prosecutors reguarly drop cases and let defendants walk based on new exculpatory evidence?

    Because their job isn’t supposed to be to convict, regardless of guilt or innocence, the way defense attornies are supposed to defend, regarless of guilt or innocence. They’re supposed to pursue justice.

  41. “You can elect DAs because they represent the public in criminal cases. The cases are usually styled City of X or State of Y v. Dirtbag.”

    No they represent the government. I don’t want the local pothead thrown in jail, do you? No and in many consitutencies neither do the majority of the public, but the government does.

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