Face to Face: A Conversation with Howard Finkelstein

Broward County Public Defender brings a sense of the 60s and a zeal for justice.

Q. Mr. Finkelstein, it's a little over a year since you were elected to your position. How has the first year gone?

A. This has been a difficult year. It's probably been the most difficult thing I've ever tried to do. As you know, I've been a public servant for most of my 27 years as a lawyer, so I'm someone that's deeply committed to the philosophical and legal principle that everyone stands equal before the bar of justice. But changing a culture, and that's what this year has been about, is very difficult.

It's not about organizational changes, it's not about employee changes. It's about changing what I believe to be a corrupt environment. Not corrupt of taking money, but corrupt of spirit, corrupt of commitment, corrupt of work ethic. And so what we've been engaged in is basically retraining, rebirthing and re-educating the employees that have been here, and changing the dynamics of everything.

In the past, this office was a political machine. And when you are a political machine, the tune that you dance to is one of power, politics and money. We have transformed this office into one that is 100 percent client-based. And because of that, the decisions you make -- where you put employees, how much you pay them, how you act, how you present yourself, what's important -- has all changed. …

And the biggest change, I think, that has occurred: In the past, we did not get involved until six weeks after the arrest. And the reason that was chosen by my predecessor was, it's a lot cheaper. If you don't get into the game until after arraignment, then you don't need the lawyers and the investigators, and the cost. That allows you to have more money to pursue political interests. I believe that that was fundamentally wrong -- that if we're going to have equal justice, how can there be equal justice if you're poor and you don't get to see a lawyer for six weeks? … We have transformed our representation from getting involved six weeks after arrest to 48 hours.

Q. What's the biggest challenge facing the criminal justice system in South Florida?

A. Probably the biggest challenge … is funding. We have been trying to do justice on the cheap in this state for a long time, and unfortunately, you get what you pay for. I believe that if you want peace in your community, there has to be justice. There can't be justice in the community if you are not funding it appropriately so that indigent and poor people get quality representation by lawyers that are not overburdened by an excessive caseload, that have the resources to hire experts. … While I understand being fiscally responsible, cutting budgets when it comes to matters of justice is irresponsible. And in the end, quite frankly, it's stupid, because the penalty and the price we pay for doing it on the cheap, well, sometimes it's paid for by guilty people going free and innocent people going to jail, and I don't think that's anything anybody wants.

Q. Your job might not exist were it not for the 1963 U.S. Supreme Court ruling in Gideon vs. Wainwright, which established a constitutional right to an attorney in all criminal proceedings. How has that landmark Florida case changed the law and Americans' concept of justice?

A. About as huge as anything can. It's as huge as Brown vs. Board of Education when it comes to no separate-but-equal approaches. What it said was -- and really to understand Gideon, you have to really understand what happened. Gideon was a cranky old cracker charged with basically breaking into a pool hall and stealing some petty cash. When he goes to trial, he asks the judge, he says, I want a lawyer, and what the judge says is, well, if you can afford one, you can have one, because that's what the Sixth Amendment meant before Gideon. It meant if you could afford a lawyer, you had a right to bring one into the courtroom. But that's all it meant.

At trial, what happened to Gideon was, the state puts on a witness, the cab driver, and they ask the cab driver, they say, well, did you meet Mr. Gideon? Yes. Did you pick him up that night at the pool hall? Yes. And what did he tell you? Well, he told me not to tell anybody that I picked him up. He gets convicted, goes up on appeal. Gideon writes basically on a rough piece of paper his complaint that he needs a lawyer, sends it to Washington. Supreme Court reads this piece of paper and says, you know, you're right. They reverse it, they send it back.

And here's why it's so important. He's now given a lawyer, and the lawyer knows what to do with that testimony, because he asks the one question that Gideon didn't. Well, Mr. Cab Driver, have you ever picked up Gideon there before? Yes. And what did he tell you every time that you picked him up before? He always told me not to tell anybody that he picked me up there. And suddenly, that evidence which was so damning before now became completely innocent, and as a result he was acquitted.

So the difference is, for the first time, after Gideon, we recognize that justice is so important, and that if you're poor and can't afford a lawyer, well, there is no justice unless we pay for a lawyer. And I believe it's the thing that not only makes America different, it's what makes us special and better than any other nation.

Q. I'd like to get your views on the various special courts that have been established in Broward County. Let's start with what I guess was the first of those, drug court. Has it been effective? Has it been a good idea?

A. It's been a great idea. "Effective" is too mild a word. It has saved thousands of people's lives. In the past, a lot of these people would have just been treated in the quick rush of the criminal justice system. They would have been put on probation. They would have then violated probation. They would have been then sent to prison. They would have then lost any promise of a fulfilling life or contributing to our community.

Now you see people who are walking down the wrong path, that are basically impaled upon by the criminal justice system, and as a result of drug court's intervention, you watch the transformation of human beings from being despondent, depressed and no future to just having their cup runneth over with potential and promise.

We have had some incredible drug court judges. Right now the judge is Marcia Beach, and to say that she's an angel would not be an overstatement. Just go up there and watch her save life after life. So, has it been good? It's been great. Has it been important? I can't imagine living without it.

Q. What about mental health court?

A. Mental health court, and I'll separate the two. There's misdemeanor and felony. The misdemeanor mental health court has just been an outstanding success. There have been so many people who in the past were society's throwaways that Judge [Ginger Lerner] Wren has literally been able to wrap her ever-loving arms around, using the resources of the judicial system, to save these people's lives and give them some quality of life. So it's just an outstanding success. Felony mental health court is a more difficult one because we're dealing with people who have committed in some cases more serious crimes.

Q. The newest of these special courts is, I believe it's called collections court, and it's designed to help people who can't immediately pay a fine or a court cost. Is that a good idea, or effective?

A. We don't know. It started, I think, last [month]. I think the devil's in the details on that one. This is all part of trying to make the criminal justice system self-sufficient. The downside of that is that we are passing the obligation of society onto, in many cases, the poorest among us, who are arrested in the system, to fund the very system. I think that's patently unfair. But getting by that, the collections court, if it gives people who are poor more time to pay the money and at the same time benefits the system, that's going to be good. It will depend upon the grace, leniency and understanding of the judge in dealing with people. If we end up with people who can't pay going to jail because they can't pay, well, that's a huge step backwards. That's a step back to James Oglethorpe and debtor prisons.

Q. Speaking of mental health court, the problems of the mentally ill in the criminal justice system are obviously pervasive. Many county jail inmates are mentally ill. They get little help while in jail, as you know, and after they're released, they just recycle back through the system. Is there a solution to this problem?

A. I hope there's a solution. I believe the next decade -- this is the next civil rights struggle in this country. And it's the struggle to make sure that those who are mentally ill have a chance at a full life and a chance to achieve their piece of the American pie. But it is more difficult than, let's say, drug court, with people who suffer from addiction, because there, it's simple. You tell them, this is the program. You don't do drugs, you don't drink, you go to meetings, and then they get well. With the mentally ill, what do you do, tell them to hold that thought?

It's very different, and the struggle is to make sure that those that are mentally ill and who are harmless … don't get impaled by the justice system, as opposed to those who manifest their mental illness in violent ways toward the public. You have to separate the two. Even someone like myself, who is a died-in-the-wool liberal public defender, understands that you and I and my wife and my kids have a right to walk down the streets of our city and not be accosted and not be assaulted by someone who may be mentally ill.

Q. Sheriff Ken Jenne has had the idea that perhaps a forensic hospital would solve some of the problem. Do you agree with that?

A. No. Here's why. And the sheriff and I argue over this all the time. I believe the sheriff's intentions are very good, and I believe the sheriff has designed it so that we would build a forensic hospital that would be for people that are mentally ill that would otherwise be in jail, [and] would now be in a nicer facility. Everybody agrees that's good. Here's where I disagree: Build it and they will come. Once that facility is built, I believe it will become a psychiatric prison.

It isn't the sheriff that I worry about, because the sheriff, I believe, will do the right thing. I worry about the judiciary, because they have to worry about the electorate, and every judge's nightmare is they let somebody go and then something happens and there's an article written in your newspaper. And I think what's going to happen is judges who right now would never think of putting a mentally ill person in the jail because it's wrong will have their conscience salved and be able to put them in this new psychiatric jail. Well, a jail by any other name is still a jail. And I think that in the end we could end up with a situation where we start warehousing, in a nice facility, mentally ill people.

Q. Is there anything else you'd like to say?

A. I guess the only thing that I'd like to add is, it has been both an honor and a privilege to serve both this county and this country in what I believe is one of the most special jobs that this nation has. They pay me, and the people that work here, to make the government's life more difficult, because in the end it makes us all better as a people, all better as a culture, and much better as a sense of justice in our community. And while there have been some difficulties and there will be additional transformations, make no mistake about it: What this office does is truly important, and how special this country is is something that should not be underestimated.

Interviewed by Senior Editorial Writer Timothy Dodson


Background

Howard Finkelstein was elected Broward County public defender in November 2004. A product of South Broward High School, the University of South Florida and the University of Miami law school, he began his career as an assistant public defender in 1977. In 1980, he started his own practice, which he kept until he returned to the Public Defender's Office in 1988.

As public defender, he heads an office that employs 130 lawyers. He says he has dramatically shortened the time an indigent person must wait before being assigned an attorney, developed a team approach to staff training and established a policy of assigning experienced rather than novice lawyers to handle juvenile cases.

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