Local Attorney Discovers He Is Fighting A Prosecutor Paid By A Private Company

So, private corporations are adding privately funded prosecutors to the Monroe County State Attorney’s Office.  Really?  Do we have Monroe County prosecutors whose salaries are paid by private companies?  “Indirectly, yes, and that deal is unconstitutional,” says local defense attorney Jiulio Margalli.

Margalli is referring to an agreement, entered into last December, by which the Guidance/Care Center (GCC) and Monroe County Coalition (MCC), both private entitles, are paying the State Attorney’s Office for a special prosecutor to “increase prosecutions of DUI cases.”

At first glance I’m sure the reader will react as we did:  “Good! Let’s prosecute.”  Certainly, the prospect of having less drunk teenagers flipping over their pickup trucks (or worse) is a good thing.  And both the Guidance/Care Center and the Monroe County Coalition deal with drug and alcohol abuse in Monroe County.

“But that is precisely the problem,” says Margalli, “Here we have two private entities whose income depends directly on the number of people who are ordered by the Courts to undergo alcohol and drug evaluations and treatment and those private companies are paying a prosecutor to increase the prosecution of drug and alcohol cases.  There is a serious conflict of interest, which could lead people to question whether the prosecution is as independent as it is supposed to be.”

We did try to contact different players while researching this story but interestingly enough nobody seems too eager to comment, or are not authorized to comment, or simply don’t want to be quoted; though the expression “can of worms” did come up several times.

So, is the GCC trying to help itself to a larger supply of  “convicted clients”?  The GCC is a non-profit organization that offers mental health and addiction treatment services in Monroe County.  It has a yearly budget of 7.5 million dollars – about three times the budget of the State Attorney’s office.

It doesn’t help that no one seems to be able to figure out what the GCC is doing with that money.  “I can’t follow it,” said Danny Kholage, then Monroe County Clerk and Comptroller, during a BOCC meeting last June, where GCC’s finances were being discussed.

“I don’t know what they are talking about.  The agency needs to put together a schematic financial package for the commission.  Show us the whole 7 million dollar universe of what you do and where you get the money from,” said Kholage.

Tim O’Hara reporting about the meeting for the Citizen wrote, “each elected official at some point [during nearly two hours of deliberations] expressed frustration at the complex nature of the non-profit’s funding and allocation of grants.”

“There is an ethical issue,” says Margali, “this agreement, between the State Attorney’s Office and the GCC and MCC, gives the prosecutor a private client who has the power to terminate his job.  The prosecutor’s client is supposed to be the State of Florida and no one else.”

Under the agreement, not only is the prosecutor’s salary paid by GCC and MCC, but the prosecutor must make regular ‘progress reports’ on the increase in number of DUI prosecutions and he must attend GCC and MCC board meetings.  Additionally, GCC and MCC promise to give more money to the State Attorney’s Office when it becomes available.

“This looks dangerously close to performance-based employment,” says Margalli, “the prosecutor’s job is clearly on the line.”

After talking for days with all of those people who don’t want to be quoted, it seems that the ‘horror story’ version of the privatized prosecutor could be best described by quoting Master Yoda:

“There is a disturbance in the force young Skywalker.”

The scenario develops something like this:

• Private companies pay for a prosecutor with a special agenda, say the increase of DUI prosecutions.
• The prosecutor becomes dependent on that money which causes him to push DUI cases to please his/her private sponsor.
• However, the fact that you add more prosecutors doesn’t mean that the system itself has the capacity to prosecute more cases.
• To be able to handle a larger caseload, without compromising the quality and safeguards of the tribunal, you also need more public defenders.  You also might need more Judges, more Clerks, and more Courtrooms; all things the private company might not be interested in funding and the imbalance begins to undermine the safeguards in the system as a whole.
• Next, when the system starts to backload, the prosecutor must decide which cases to push through (since constitutional speedy trial requirements do not allow criminal cases to be kept on the back burner for years).
• To keep his/her prosecutors, the State Attorney will be tempted to prioritize cases that are privately funded and drop others even though they could be more serious, leaving victims without vindication and criminals without punishment.
• The imbalance could also spill over to the police.  Apparently, there’s quite a bit of discretion associated with a DUI arrest.  In fact, by the time you get to blow into that little balloon, you’ve already been arrested and taken to jail.  At that point, one of the safeguards the system has in place is the prosecutor, who could decide that the police didn’t really have a case (maybe you’re just not that good at reciting the alphabet backwards or standing on one leg).  However, as police officers come to realize that prosecutors never overturn DUI arrests anymore, they might decide to use even more of that “he looked intoxicated” discretion, for perhaps ever more questionable reasons.

“Nobody wants people to drive drunk, but bottom line,” says Margali, “the law is the law.  There is one exclusive way to fund the State Attorney’s Office .  It is through the state budget and there is no exception for privately owned companies – no matter how pure their intentions.”

Margalli has sent a complaint to Attorney General, Pam Bondi, asking her to investigate, stating,

“If we have received no response by [May 6, 2013], we will assume that your office has refused to commence an action in Quo Warranto and we will commence such an action in the name of the State.”