SUPREME COURT ASKED IF CAPITAL DEFENDANTS WITH PRIVATE LAWYERS CAN GET TAXPAYER-FUNDED CO-COUNSEL

The Florida Supreme Court is being asked to decide whether a first-degree murder defendant who has a private lawyer is entitled to a co-counsel at taxpayer expense.

Last week, the Third District Court of Appeal said “No,” and overturned a trial judge’s order appointing a co-counsel for 32-year-old Ian Jackson, a Miami man facing first-degree murder charges.

“Because we conclude that the trial court’s failure to apply the controlling statutes and rule 3.112(e) constitutes a departure from the essential requirements of law resulting in irreparable harm, we grant the petition and quash the order…” the opinion states.

According to court records, Jackson’s family hired a private lawyer in 2020 after Jackson was arrested on second-degree murder charges in connection with the deaths of two South Florida men. Indicted for first-degree murder two years later, and facing a death sentence, Jackson requested a court-appointed lawyer to serve as co-counsel, saying he couldn’t afford another attorney.

The public defender and regional counsel told Circuit Judge Alberto Milian that Florida law prohibits them from representing Jackson because he has a private lawyer. Citing potential conflicts in state law, and concern for Jackson’s right to counsel, Milian appointed a private lawyer at taxpayer expense.

The Justice Administration Commission, which is responsible for paying court-appointed lawyers, challenged the order. Not doing so, the JAC argued, would put it in an “unenviable position” of either refusing payment after trial for a significant body of work — or defying the will of the Legislature.

In its ruling, the Third DCA said it recognized that “the result of this decision means that to be eligible for a court appointed private counsel to represent him in the penalty phase in this death penalty case, Jackson must terminate his lead private counsel of choice, who has maintained his defense since 2020.”

The Third DCA also referred to Milian’s concern about potential conflicts in state law, and asked the Supreme Court to resolve a question of great public importance:

“Whether Section 27.51(2), Florida Statutes (2022), prohibits hybrid representation by court-appointed counsel such that a trial court has no discretion to appoint private co-counsel for a defendant who is facing the death penalty and has one privately retained counsel but cannot afford a second counsel?”

In its petition, the JAC referred to F.S. §27.52(5)(h), which states, that “an indigent defendant is not entitled to a state-funded attorney if the defendant is already represented by privately retained and paid counsel.”

Section 27.40 bars the appointment of private counsel without a finding of a conflict with the public defender and the Office of Criminal Conflict and Civil Regional Counsel, the JAC noted.

Emphasizing the final phrase, the JAC also cited Florida Rule of Criminal Procedure 3.112(e), which states that “[a] court must appoint lead counsel and, upon written application and a showing of need by lead counsel, should appoint co-counsel to handle every capital trial in which the defendant is not represented by retained counsel or the Public Defender.”

Jackson’s attorney, Ana M. Davide of Coral Gables, disagreed, and stressed Jackson’s Sixth Amendment right to counsel was established “in the seminal case of Gideon v. Wainwright, 372 U.S. 335 (1963).”

F.S. §27.51 (2), bars the appointment of a public defender “simultaneously on the same case” if the defendant has a private lawyer, but it also states, “the court, however, may appoint private counsel in capital cases as provided in ss. 27.40 and 27.5303,” Davide notes.

Davide also refers to a 1999 Supreme Court decision in Spaziano v. Seminole County.

In that case, the Supreme Court directed the county to pay for court appointed co-counsel “where lead counsel was acting pro bono and the Public Defender had an ethical conflict which prevented the Public Defender from representing the defendant.”

Florida law is “so full of discrepancies and vagueness as to be unenforceable,” in these instances, Davide argues. She urged the Third DCA to “reaffirm the principle that the lower court had inherent discretionary authority to appoint second chair counsel in this case.”

The Miami Chapter of the Florida Association of Criminal Defense Lawyers agrees with Davide, and believes that in these instances, “Spaziano controls,” North Miami attorney Daniel Tibbitt and Chapter President Michael T. Davis wrote in an amicus brief.

Defendants facing the death penalty require a co-counsel for the penalty phase because jurors are unlikely to be swayed by an argument for leniency after hearing the same attorney insist that the client is innocent, FACDL notes.

Forcing Jackson to fire his private counsel will ultimately cost taxpayers more, FACDL warns.

“In the vast majority of capital cases the State has to pay for both of these death penalty lawyers — but if a defendant can pay for one of them, it makes sense that the [L]egislature, as stewards of taxpayer money, would want to encourage rather than prohibit that.”