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Backlog of felony criminal cases becoming a crisis

STORY BY LISA ZAHNER (Week of December 9, 2021)
Photo: Indian River County Circuit Judge Dan Vaughn conducts proceedings.

The unforeseen suspension of jury trials for seven months due to COVID-19, plus several other factors, has turned a bothersome pre-pandemic backlog of felony criminal cases in the Indian River County court system into a crisis that seems almost insurmountable with current resources.

Taking into account only serious crimes punishable by time in state prison, more than 1,800 felony criminal cases initiated from 2012 to this week are currently pending here.

Those 1,800 cases do not include juvenile felonies. They also do not include the multitude of cases classified as misdemeanors. And they do not include civil, probate, family court, dependency court or other cases halted or slowed for weeks or months in 2020.

One Circuit Court judge, Dan Vaughn, holds all felony criminal cases on his docket unless the defendant has been diverted to mental health court, drug court or veteran’s court.

Vaughn inherited nearly 500 of these still-pending felony cases – and others he has since processed and closed – when periodic judicial reassignments in early 2019 landed him on the bench in the large, third-floor courtroom that exposes to justice the most desperate, depraved, and violent crimes that happen in Indian River County.

Retired Judge David Morgan said it would be wrong to fault Vaughn for the huge backlog of cases.

“Judge Vaughn is a worker, he works every day but he needs help,” said Morgan, who retired nearly a year ago after a decades-long career as a county judge and a prosecutor.

As soon as he is eligible, in February, Morgan said he plans to apply for a posting as a senior judge to help out. Joe Wild, who retired from the 19th Circuit in early 2019 after 30 years of judicial service, has already been appointed a senior judge and is helping cover misdemeanor court when county judges have been ill or on vacation.

Wild said he prefers to work on Indian River County cases instead of traveling, and maybe that’s limited his time back on the bench as a senior judge, but “I haven’t been asked to work felony,” Wild said.

Morgan and Wild said a senior judge could help out with long trials so the regular felony judge could keep up with docket calls, motions and other pre-trial hearings on all the other cases. In 2010, Senior Judge James Midelis was assigned to work on the Ira Hatch fraud and theft case, which ran eight weeks.

“We have plenty of courtroom space in Vero,” Morgan said, even with the new social distancing protocols.

Wild said the delay in bringing cases to trial makes it tougher for prosecutors to successfully negotiate plea deals with people who are free on bond for years.

“Nobody wants to take a plea when they know it’s going to take a long time to go to trial,” he said.

Then there’s the consideration of the 500-plus men and women in the county jail as of press time.

Twenty-seven of those in custody have lived at the jail for more than three years. Morgan pointed out that the court must be sensitive to the possibility that some of the people dealing with the court delays from behind bars could be innocent, or found not guilty after a fair trial.

State Attorney Tom Bakkedahl said he saw no easy solution to the slow churn of the felony courts, but he knows what he’s not willing to do – drop charges or let criminals off easy for serious offenses just to clear cases off the books. “We have to make public safety a priority,” he said.

According to a Nov. 4 order of the Florida Supreme Court which took effect Nov. 15, face masks are no longer mandatory at the courthouse. Masks are still strongly advised, and available free upon request. Certain court proceedings must be in person now, but Zoom depositions and hearings are still routine.

For attorneys on both sides, being able to select juries and try cases without mandatory masks will make things start to feel more “normal” but the courts are still stuck in Phase Two of the state’s four-phase plan to return to pre-COVID operations.

Masks or no masks, a delay between arrest and trial that runs years rather than months makes cases more difficult to try, said Bakkedahl.

“The longer a case drags on, the tougher it is for the witnesses. People don’t always remember things as clearly, or they move away, or witnesses sometimes die. There could be problems with evidence. And It’s rough on the victims and their families as well,” Bakkedahl said, quoting the adage about justice delayed being justice denied.

Managing ever-growing caseloads also increases the burden on public defenders and prosecutors alike. Both sides work with very limited human resources and slim budgets.

“If you dive down into the docket, you’re not going to find my people coming in and asking for continuances because they know the next case is coming in the door,” Bakkedahl said.

Since taking office in 2020, Bakkedahl has faced another challenge.

Some of his most experienced prosecutors have moved on, announced their retirements or retired. Assistant State Attorney Ryan Butler, who was part of the legal team that convicted Ira Hatch, left to become the chief deputy clerk and general counsel for Clerk of the Court Jeff Smith, and Assistant State Attorney Lev Evans is scheduled to retire in January.

Evans, a graduate of the University of Florida and Loyola University Law School, learned criminal law at the New Orleans District Attorney’s Office, then returned to Martin County to set up a lucrative civil litigation and personal injury practice. With 10 years of trial experience under his belt, Evans signed on as a felony prosecutor in 1997.

For the past 20 years, Evans has headed up the Economic Crimes Division. Bakkedahl said Evans’ knowledge of complex financial cases and his experience in civil litigation have been instrumental in bringing many thieves and fraudsters to justice.

Bakkedahl – previously one of State Attorney Bruce Colton’s busiest felony prosecutors – now has administrative and personnel duties. But he still tries cases.

“I tried misdemeanors for three weeks in Martin County to try to get caught up,” he said.

Bakkedahl said he has a great amount of respect for his 48 attorneys, many of them highly experienced, but he can’t deny the “brain-drain” of losing people like Butler and Evans. He has advertised for attorneys to fill the open positions, but there are no takers.

“Florida starts assistant state attorneys out at $52,000, and these people are typically coming in with about $150,000 of student loan debt. Sometimes up to $250,000 if they’ve taken out loans for their undergraduate degree as well.”

To help make up for the attorney shortage, Bakkedahl said he’s fortified his staff with paralegals and other clerical personnel to help lawyers manage the sheer volume of paperwork that comes across their desks. He said this also helps the State Attorney’s Office get more done while spending less, until he can offer a competitive salary to attract new attorneys.

The national average starting salary for prosecutors is about $75,000. “Florida ranks 47th, with Arkansas, Mississippi and Illinois having a lower starting pay. I lay this at the foot of the Florida Legislature,” Bakkedahl said, adding that he hopes legislators realize that both prosecutors and public defenders are essential to the criminal justice system.

“It does no good for my office to be fully staffed and the public defender to be half staffed. The more competent and experienced the public defenders are, the less likely that cases are going to come back and be overturned on appeal,” Bakkedahl said.

Another matter that may need to be remedied by the legislature is a regulation of the Florida Retirement System prohibiting long-time state employees like Evans, who want to come back and volunteer their services to the court or to law enforcement in the first year after retiring, from doing so without jeopardizing their pensions.

Evans wrote to Gov. Ron DeSantis in October asking him to find a solution. “Although I will be 64 years old, I still have some usefulness,” he wrote in a letter to DeSantis.

“Unfortunately, the Division of Retirement has published a document stating all my retirement benefits will be voided if I provide any service, whether paid or unpaid.”

If highly qualified legal professionals – judges or lawyers – want to volunteer to help work through the backlog of cases, or to help law enforcement, Evans says the state should jump at this chance. “Two local judges who have recently retired are willing to offer free services to an overloaded court system. To reject these volunteers seems like an unreasonable, short-sighted, snub.”

Evans, Morgan, Wild and Bakkedahl all say they hope someone in a position to make change happen will listen before the courts get even more bogged down and less efficient.