Rafael Olmeda Contact Reporter
Broward County is getting shortchanged on the fees that are supposed to be collected from criminal defendants who cannot afford to hire private lawyers, according to Public Defender Howard Finkelstein. He wants Clerk of Courts Brenda Forman to explain why.
In a series of letters between their offices, Finkelstein noted a disparity between what his office pulls in and what the public defenders of similarly sized court circuits collect.
In the fiscal year that ended June 30, 2017, the 17th judicial circuit, which covers Broward, collected $623,050.79 from the state’s “Indigent Criminal Defense Trust Fund.” The 15th circuit (Palm Beach) collected $1,053,193.43, while the 11th circuit (Miami-Dade) took in $932,887.80. Orange County’s 9th circuit collected the most in the state, at $1,397,427.53.
“Something is off somewhere,” Finkelstein said, suspecting the clerk’s office collections process is “structurally flawed.”
“When you look at the amount of collections in other areas of the state, it is very clear that we are not collecting what should be collected,” he said.
When criminal defendants who cannot afford a lawyer are assigned to the public defender’s office, they are charged a $50 application fee, $49 of which is earmarked for the office. The remaining dollar goes back to the clerk of courts. Fees are also assessed when defendants are convicted, plead out their cases, appeal or violate probation.
Many never pay the fee — Orange County showed a payment rate of just 13.6 percent of application fees from Oct. 1, 2016 to Sept. 30, 2017.
Broward’s most recent figures were not immediately available.
But Orange County routinely collects $750,000 to $950,000 more per year than Broward for its public defender’s office.
“The public defenders take it upon themselves to reach out to their clients to get them to pay the amounts due,” said Dain Weister, spokesman for the Orange County Clerk of Courts. “The majority of criminal defendants who owe us money are on payments plans and know they must keep paying or their account will go to a collection agency.”
There is no such arrangement, formal or informal, between Broward’s public defender and clerk of courts, though the clerk does contract with collection agencies to go after delinquent accounts.
Finkelstein said his office is probably losing out on somewhere between $100,000 and $900,000 a year. Any amount in that range would have a significant impact on his office’s budget.
“This is money that can hire another lawyer, another investigator,” he said. “It can provide raises for employees so you have less turnover and better services for our clients.”
Finkelstein and his chief assistant, Gordon Weekes, say the clerk’s office is their first stop in trying to answer why Broward’s collections routinely trail its neighbors’. They are asking Forman to conduct an audit that looks specifically at its collections. Finkelstein said he is willing to take the issue to court if needed.
But the clerk’s office says it gets audited every year, and no problem has been found.
“The external auditors take a statistical sampling of cases and trace the flow of any payments on those cases,” said Forman’s chief operating officer, Dian Diaz. “There were no material weaknesses identified or any significant deficiencies identified in our financial reporting in the most recent audit. Our financial reporting was also found to be in compliance with the standards.”
The discrepancy has been an issue for years, and Finkelstein said he raised it several times with Howard Forman, the current clerk’s husband and predecessor in office.
He raised it again with Brenda Forman in a letter last September.
Her response a month later was to express confidence in her office’s process, documenting collections and payments in a handful of cases cited by Finkelstein. She also invited Finkelstein to meet with her and her office staff to discuss the matter.
No meeting has taken place.
“They want to explain to us how the collection process works,” Weekes said. “We already know how the collection process works! What we want is an audit that looks specifically at the question of how much we should be getting compared to how much we are.”
Numerous factors can explain why Broward collects less, according to the clerk’s office. Ironically, the more successful the public defender’s office is in representing its clients, the less money it will receive — acquittals and dropped cases result in no fees assessed and no money coming in.
“There are other examples of non-clerk related issues that drive how much the public defender receives,” Diaz said. “These items and others are all things that we had hoped to discuss with the public defender to increase their awareness of the big picture.”
Weekes and Finkelstein say Forman’s office is concentrating on the big picture at the expense of identifying a more specific problem.
“Having that merry-go-roundtable talk is not going to resolve the issue,” Weekes said. “Bring in an auditor. If the clerk’s office is right, they’re right, and an audit will show that. The problem would lie elsewhere. But if they’re wrong, we’re the ones losing out.”