Life as a Public Defender
BROWARD COUNTY, Florida -- He won't be able to tell you that I am his lawyer but he may be able to tell you that I am the person who gives him peanut-butter crackers every time he visits my office. This sweet quiet 22 year-old has a mental illness. Sam Marks doesn't have a phone or a permanent address but somehow he makes it to his numerous court appearances and office appointments.
Sam has been in and out of court for over a year. His big crime: Trespass. On the evening of February 24, 2014 Sam was arrested for being found in the rear of a vacant property. Ever since that night Sam has been caught up in the criminal justice system.
Dealing with physically and intellectually disabled clients can be heart-wrenching, thanks to the lack of support in the justice system. It is so much harder on a Public Defender's clients since they are indigent and many lack insurance, support networks and a place to call home. The immediate goal in our office is to get these people out of jail as soon as possible. The reason is obvious -- jail is no place for a person with a mental disorder.
Sam was found incompetent to proceed on his trespassing case and the effects of this are much greater than you might think. Attorneys and judges cannot let an incompetent defendant enter a plea since they are unable to understand the consequences of the proceedings or to participate in their defense. Which makes sense. Once there is a concern about competency doctors are ordered to examine the client and hearings are held. The problem is that when a person is declared incompetent to proceed it does not stop the legal process. Instead it starts a lengthy one, the one Sam has been in for over a year.
In county court, the place for misdemeanor crimes, thousands of people resolve their cases and move on with their lives while those declared incompetent remain in the system. A person charged with a misdemeanor has to be found incompetent to proceed for a year, from the day a court declares them incompetent, not from the date of the alleged crime, before their case can be dismissed. Doctors re-evaluate the client at the year-end mark to make sure the person's competency status hasn't changed. Even if the case is dismissed there is one caveat: the state can bring back the charges if the person's competency is restored in the future.
Many of my clients in Broward County remain in jail while competency is being determined because they can't afford to post bond. Even once they are found incompetent to proceed, many judges don't want to release these clients when they don't have a place to live. Without an income or insurance it is not easy to find housing so they are stuck in a system that doesn't have the resources to deal with their needs. Even if we find a bed at one of the wonderful non-profits in the area there is no guarantee that our client will remain at that place. There are many cases where the court orders a person declared incompetent to stay at a specific location, but the person wanders off. For example, one of my clients left the shelter where he was supposed to stay so he could go home to his mother's house. Sadly, he turned up back in jail, arrested for violating a condition of pretrial release by returning to somewhere familiar, his mother's home, instead of staying in a shelter full of strangers. This part baffles me--why are we surprised or offended when an incompetent person acts in a manner consistent with that finding? Too often a mentally ill person will spend weeks or months in jail over a petty offense such as trespass, working through this convoluted obstacle course the system forces them into, whereas a competent person would have ended their case after a few days in jail with time served.
So much money is wasted on appointing doctors and these clients' families are overburdened, having to deal with their loved ones' medical condition and yet they still having to comply with the demands of the legal system. Not every case should be dismissed and some people will have their competency restored but many will not. Take Sam for example -- he already spent 40 days in jail for trespassing. When a client is intellectually disabled like Sam, I don't understand the point of waiting a year to see if their "condition" will change. Sometimes I just want to scream at the prosecutor, what are you going to do, send him to Harvard and see if that changes anything?
One family I became close to has an adult son who was charged with driving under the influence. After his arrest the son had a stroke. He is now in a wheelchair unable to feed, bathe and care for himself. His father, a retired United States veteran, brought his son to court in hope he could get this case dismissed when the Assistant State Attorney saw the truly tragic condition of his son. He wanted one less thing to deal with as his family works on a better quality of life for their permanently disabled son. Just looking at this man in a wheelchair should take away any fear that he will be driving a car at any point during the remainder of his life. Yet the prosecutor would not dismiss the charges. The lack of empathy and realism is astounding.
Just the other day I watched as the assistant state attorney dramatically ripped up the court order that she had agreed to just moments earlier. She boldly told the court that she was withdrawing her stipulation that the defendant should be deemed incompetent, which was based on two doctors' opinions. The prosecutor changed her mind after it was obvious that the judge was going to release him from jail. This man's sister, always in court, told the judge she was going to allow her brother to live with her. He had a place to stay but the prosecutor wanted him on an ankle monitor and confined to the home. So back to jail he went to start another month incarcerated on a misdemeanor. Jail is where he will stay while he awaits a third doctor to evaluate him and a hearing on his competency is held.
It's Sam's year-end mark and that is why he has been in my office more often this month. We have to meet with doctors who ask him questions such as: Do you know what a defense attorney does? Have you ever been in a fight and injured your head? What is 2 + 1?
I know Sam can't answer those questions and perhaps that is why I am relieved every time he shows up for his appointments. As usual he was an hour late, alone, and famished. At Sam's request the first thing we did was to go into my office to my stash of peanut-butter crackers. Next we met with the first of two doctors. If Sam makes it to my office for his second doctor's evaluation and the doctor finds Sam incompetent his trespass case should be dismissed. A year and four months of hiring experts, holding hearings and bringing Sam back and forth to court -- all this for being found in the rear of a vacant property.
The high profile trials of Manuel Noriega, Timothy McVeigh, OJ Simpson and George Zimmerman are among the important legal stories Kim Segal covered as a journalist for over two decades. While working as a producer for CNN, she began attending law school at night, and was admitted to the Florida Bar in 2005.
At 46, she left her television career for a position as a Public Defender in Broward County, Florida.