Miami-Dade Attorneys’ Billings Under State Scrutiny, Burdening a Teetering Death Penalty System – NBC 6 South Florida

A state commission has recently taken action against seven Florida defense lawyers — all hailing from Miami-Dade County — as part of an investigation it says has uncovered fraudulent billing practices, referring some lawyers to law enforcement, the NBC 6 Investigators found.

With some defense attorneys suspected of submitting questionable billings now blocked from getting state funds for new cases and a shortage of eligible attorneys to take on death penalty cases, stakeholders say the death penalty system in Miami-Dade is “broken” and at risk of a “constitutional crisis.”

Since 2020, NBC 6 found the Justice Administrative Commission (JAC) in Tallahassee has suspended or blocked seven attorneys statewide from being appointed by judges to new criminal cases as part of its investigation into billings.

The NBC 6 Investigators found all seven are Miami-Dade defense lawyers, including several who’ve handled some of the county’s most notorious murder cases.

One attorney — who’s earned nearly $5 million in fees since 2011 — billed $100 an hour for working, on average, more than 12 hours a day nearly every day for three years, taking just six days off over those years, according to the JAC.

Another, who’s billed $2.2 million over that decade, filed invoices saying she worked more than 24 hours a day 43 times.

And a third claimed he spent the equivalent of nearly five months of eight-hour workdays each year for five years listening to jail calls. At $100 an hour, that would’ve earned him $580,000 of the $3.8 million in fees he’s been awarded since 2011.

The scope of the JAC’s actions and its impact exclusively on Miami-Dade were a surprise to Chief Judge Nushin Sayfie, who last year found the circuit faced a “constitutional crisis” in its death penalty system because there were so few court-appointed attorneys willing or able to take the lead in death penalty cases, she said.

What she didn’t know was how many of the lawyers previously eligible to do so were being barred from accepting new cases by the JAC.

The looming crisis highlighted what Miami-Dade State Attorney Katherine Fernandez Rundle calls a “broken” system, where victims’ families and defendants wait years for death penalty cases to be resolved.

A ‘Cash Cow‘

But for the lawyers who can bill the state $100 an hour, Fernandez Rundle said that slog is a lucrative arrangement, a “cash cow,” one she suggested some lawyers intentionally slow down, rather than work efficiently through to reach a speedy resolution.

“There’s no incentive for the defense. Think about it,” she said. “Keeping it open and alive is what incentivizes them to get more money, which is a real shame.”

The NBC 6 Investigators analyzed data from the JAC and found those seven attorneys barred by the commission have been paid more than $18 million — nearly 90% of it in cases where the state at some point sought a death penalty.

Over that time, the JAC has paid more than $77 million in Florida taxpayer money to lawyers, experts, investigators and others assisting the defense after Miami-Dade judges found conflicts prevented public defenders and other state-salaried lawyers from representing defendants.

When the pandemic reduced their workload in 2020, JAC employees used the downtime to start reviewing invoices it had paid out over the previous five years, finding more than $850,000 in “questioned costs,” according to a 2022-23 budget request.

The JAC “identified fraudulent and non-compliant billing practices and also no longer contracts with several attorneys and vendors who engaged in these practices,” the budget request states.

The NBC 6 Investigators found all seven of the attorneys whose contracts the commission voted to suspend, terminate or not renew since 2020 were investigated for billings in Miami-Dade.

Notorious Clients

They have represented some of the most notorious accused killers in recent county history, including:

• Jorge Barahona, still awaiting trial 11 years after he was charged with murdering his 10-year-old adoptive daughter, Nubia;
• Anthawn Ragan Jr., facing trial in the killing of a 10-year-old boy in a 2013 robbery of a nail salon;
• Noel Doorbal, convicted of the 1995 murder and dismemberment of a Golden Beach couple;
• Ysrael Granda, accused of conspiring to murder a witness against him. He is awaiting trial;
• Reginald Jackson, facing trial after being charged in the 2015 execution-style murder of a Miami Gardens minister and her grandson;
• Gregory Martin, charged in 2011 with the rape and murder of a 13-year-old girl. He is awaiting trial;
• Julio Morris, accused of arranging the killing of a key eyewitness to another murder he allegedly committed. He is awaiting trial in both cases;
• Several members of a North Miami gang, the Terrorist Boyz, accused of killing at least a dozen people. Most of them are still awaiting trial.

Miami-Dade in JAC Crosshairs

The JAC says Miami-Dade wound up in its crosshairs for only one reason: money.

“When they began auditing accounts, what they did was they focused on the largest accounts the JAC had at the time, the attorneys that had billed the most,” said Diamond Litty, the Martin County public defender who also chairs the JAC. “They ended up being Dade County attorneys. There was never a focus on Dade County attorneys or firms.”

Some lawyers they probed have been referred by the JAC to the Florida Bar for possible disciplinary action or to criminal investigators within the state Department of Financial Services or the Miami-Dade Police Department.

NBC 6 Investigators found the state’s 11th Judicial Circuit, constituting only Miami-Dade County, has consumed 21% of state taxpayer funds spent on cases with court-appointed counsel since 2011.

But — again — Miami-Dade-based lawyers make up 100% of those whose contracts were recently suspended, terminated or not renewed.

“I wasn’t aware of that,” said Chief Judge Sayfie after being read a list of the affected attorneys by NBC 6.

“I’m just so glad this has come under scrutiny, finally,” Fernandez Rundle said. “It was long overdue. There should be this kind of scrutiny on these kinds of practices.”

No Comment from Lawyers

The seven lawyers now barred from getting new court-appointed clients either declined comment or did not respond to requests for comment from NBC 6.

Based on a review of JAC meeting minutes and other records, they include:

Miami-based attorney Terry Lenamon, whose contract was suspended in May 2021 after the JAC found the number of hours he billed “extreme and concerning.”

Lenamon, an experienced death penalty litigator, was paid $4.9 million in fees by the JAC between 2011 and 2020, records show.

He submitted invoices saying he worked 365 days in 2016, 363 days in 2017 and 362 days in 2015, averaging more than 12 hours billed each of those days for work on his state-funded cases.

That left him only six days off over three years.

He denied overbilling, telling the commission he is a “workaholic with tunnel vision … I work holidays and weekends.” He admitted to minor errors and offered to pay the JAC $2,200, citing typographical errors for billing 24 or more hours a day twice.

Attorney Rae Shearn paid nearly $2.2 million in fees for Miami-Dade cases since 2011 and had her contract suspended in September 2020 after the JAC said she billed more than 24 hours a day on 43 separate occasions.

“This is an egregious situation … It’s just ridiculous,” said Polk County State Attorney Brian Haas, one of four JAC commissioners, at a commission meeting in September 2021.

Attending the meeting by Zoom, Shearn said she was “humiliated” by billing errors, but assured the commission “there was nothing, absolutely nothing done here fraudulently. I did the work.… These were errors and mistakes I’ve taken responsibility for, but that’s what they were — there were just simply errors.”

Unlike the others, Miami attorney Joseph Lackey came to the JAC’s attention not for large billings (he was awarded only $264,000 since 2013) but rather because a Miami-Dade circuit judge found he billed repeatedly for “legal research on similar issues across multiple cases,” reducing his bill by about 100 hours. Lackey argued the “unique fact patterns of each case” required him to repeat the research.

But the commission did not agree, with one commissioner saying at its September meeting, “I’m troubled by this. I think it’s a complete rip-off of the taxpayers… He took advantage of the Florida taxpayers by doing this.”

“My error was being lazy,” Lackey retorted, adding, when it came to “ripping off” taxpayers, “I assure you, sir, from the bottom of my heart, I am doing quite the opposite.”

The JAC then voted unanimously not to give him a 2021-22 contract and referred the matter to the Florida Bar and the Office of Fiscal Integrity, which has law enforcement powers within the state Department of Financial Services.

Robert Finlay was suspended last May after billing more than 24 hours a day three times, something he attributed to a logging error. In explaining some of his billing nearly $1.4 million in fees since 2011, Finlay told the JAC he handles murder cases that are “deadly serious, often exceedingly complex.”

The $2 Million Barahona Connection

The remaining three attorneys singled out by the JAC since 2020 all had a role in a South Florida murder case that shocked the nation: the 2011 death of Nubia Barahona, whose chemical-doused, decomposing body was found wrapped in plastic in the bed of her adoptive father’s pick-up truck.

The JAC has spent $1.9 million on attorneys’ fees for Jorge Barahona. His wife and co-defendant, Carmen, pled guilty to murder in 2020 and is being represented by a state-salaried regional conflict counsel. She has agreed to a life sentence and to testify against her husband, who has pleaded not guilty and faces a possible death sentence if convicted.

Jorge Barahona has had five attorneys paid for by the JAC, three of whom withdrew from the case over the course of eight months last year citing the deterioration of their relationship.

Stuart Adelstein had been on the case since June 2011, earning more than $800,000, part of $2.8 million he’s been paid by the JAC since 2011.

But in 2020, his billings dating back several years began to be seriously questioned.

Miami-Dade Circuit Judge Dava Tunis rejected his request for $500 to cover five hours of reviewing affidavits and search warrants. Tunis ruled Adelstein had previously billed 10 times since 2011 for reviewing the same items, totaling nearly 47 hours, for which he would be paid $4,670.

In the same motion for fees, Adelstein sought $700 for seven hours reviewing medical examiner records, but Tunis found he had billed “for the review of this specific item 16 times” since 2012, totaling more than 102 hours, resulting in fee awards of $10,240.

“The court does not believe counsel’s bill for review of these documents multiple times is reasonable and necessary,” Tunis wrote in a September 2020 order reducing his requested award of $35,650 by $1,200 — for the 12 hours he attributed to reading the documents he had read 26 times previously.

In May 2021, citing the “excessive and repetitive nature of billing entries,” the JAC voted to bar him from accepting new cases for the 2021-22 contract year, beginning July 1. The commission staff noted Tunis’ findings in the Barahona case and in another, involving Ragan, where the judge reduced the amount Adelstein billed by nearly $3,000.

In his defense, Adelstein explained his cases were complex, requiring him to work 80 to 90 hours a week, and he submitted hand-written documentation of his time, which the JAC found inadequate, raising “concerns about the accuracy and veracity of his billings.”

From 2011 to 2021, Adelstein worked the Barahona case alongside another attorney whose alleged billing irregularities have made him the subject of a criminal investigation, according to his attorney.

David Peckins was lead counsel for Barahona from 2011 until he withdrew in January 2021, citing that criminal investigation into whether he overbilled taxpayers in death penalty cases.

Peckins has been paid more than $1 million in fees for this work on Barahona — part of $2.9 million he’s billed overall to the JAC since 2011.

His contract was suspended in October 2020 after the JAC found “discrepancies” in his records, including him billing for casework on days he was serving as a civil traffic infraction hearing officer for the Miami-Dade County Court. They also cited Judge Tunis’ finding that he billed for repetitive review of case materials in the Ragan and Barahona cases, similar to what she found with his co-counsel, Adelstein.

In January 2021, the commission voted to terminate Peckins’ contract and refer the matter to the Florida Bar and the Office of Fiscal Integrity.

“The daily pace suggested by his billings is simply unmanageable for extended periods of time,” the JAC general counsel Ana Cristina Martinez wrote to Peckins’ attorney in February 2021. “For two straight years, there were only 27 days he did not bill and the remaining days he billed over an average of 10 hours a day.”

In September, Peckins’ attorney told the commission Peckins was the subject of a criminal investigation by the Miami-Dade Police Department’s public corruption unit. The commission then voted to take no further action against Peckins while that investigation was ongoing.

By then he’d been off the Barahona case for eight months, since January, when Adelstein was moved up to lead counsel. Adelstein then chose a co-counsel who, it turns out, was also getting scrutiny from the JAC.

David S. Markus was co-counsel on Barahona for less than seven months before he and Adelstein filed a joint motion to withdraw, with Adelstein saying Barahona “hates his guts” and would not communicate with him or Markus. The judge who granted their withdrawal also said the attorneys intend to move out of the area “at some point in near future,” that offices are closing and cases are being terminated.

But not before Markus had been paid nearly $3.8 million by the JAC since 2011 for other cases and — like the other Barahona attorneys — became a focus of the JAC’s review of billing practices because they were among the highest-billing lawyers in the state.

Markus drew suspicion, in part, for billing nearly 5,800 hours over five years for “listening to jail calls.”

The JAC noted that is the equivalent of spending nearly five months of eight-hour workdays each year for five years — including weekends — listening to jail calls.

In May 2021, he admitted to over-billing for 93.5 hours, citing record-keeping errors, and agreed to immediately repay $9,290, saying he was careless and did not proofread his notes to ensure accuracy.

The commission voted not to give him a contract for the 2021-22 year.

The High Cost of Death

If the JAC’s attention was drawn to lawyers who billed the most, it’s no surprise they would wind up laser focused on Miami-Dade County, where death penalty cases are as sclerotic as they are plentiful.

“There are a high number of capital cases filed here Miami-Dade,” said Hannah Gorman, director of the Balanced Justice Project at FIU Law and an opponent of the death penalty. “(It) means typically attorneys will be billing additional hours. They’re extraordinary cases and require additional work.”

Her solution: “It is a lot money, but I don’t see a way of reducing that money without getting rid of the death penalty … The reality is it’s defunct and it’s on its way out so it’s definitely broken. The people don’t find the death penalty appropriate anymore and we’re spending a lot of money to try these cases when ultimately the jury says, ‘No, this is a life case.'”

In fact, the NBC 6 Investigators last November found evidence to support Gorman’s contention by examining JAC expenditures in court-appointed death penalty cases since January 2018. Of the 12 most expensive cases statewide that had then been resolved, only one resulted in a death sentence – and that conviction was thrown out and the case dismissed after DNA and other evidence showed the person convicted was innocent.

When someone is charged with first-degree murder in Florida, the state attorney has 45 days from arraignment to issue a notice of intent to seek the death penalty. If no notice is issued, the defense can argue that death is no longer an option.

Fernandez Rundle said 45 days is not long enough to fully weigh all the potential evidence and determine whether a death penalty will ultimately be appropriate, in part because the defense does not have adequate time to develop and share evidence that would mitigate against giving the death penalty.

“I really think you need more time to make a decision, a measured decision, an important decision,” she said. “In 45 days, you don’t necessarily have all the information. You definitely don’t have the mitigation,” evidence the defense proffers to argue against a death sentence. “Mitigation we sometimes don’t get for years.”

But, she said, her office is compelled to seek death when they think the facts could support it. While they can later waive death as an option, she said the law suggests the state loses the right to seek it after those 45 days from arraignment have elapsed.

Once she does file the notice, it triggers the defendant’s rights to have two attorneys: one focused on the guilt-innocence phase and the other on the penalty phase, should they be convicted of a crime punishable by death.

“The minute that happens, the judge has no choice but to now put that case in a special category,” Sayfie said. “And that special category obviously requires special care, but it also costs infinitely more money, more dollars.”

By statute, the court-appointed lawyers’ fees in death penalty cases are capped at $25,000, but a judge can waive that limit in a “case that requires extraordinary and unusual effort” — and that almost always occurs if the state persists in seeking death.

Death penalty cases are so complex and time-consuming, it is rare a defendant can afford his own attorney.

Public defenders can be appointed, but if they have a conflict — say their office has represented a victim or a potential witness, or it represents a co-defendant in the murder case — the office of regional conflict counsel can be called on to take one of the defendants whose case presents a conflict.

But if both the public defender and regional counsel have conflicts, the trial judge refers to a list to find two qualified private death penalty defense attorneys.

In Miami-Dade, it’s called “the wheel,” and in recent years it’s been bogged down by a lack of lawyers who meet the requirements to lead the defense and are willing to take death penalty cases.

Consider: last August, 68 death penalty cases were pending in Miami-Dade, not including 10 that had been sent back by higher courts for resentencing hearings.

But there were only 17 private lawyers eligible in the county then to be appointed lead counsel, and several of them were declining assignments, leaving a dozen or fewer viable attorneys not with the public defender or regional conflict counsel.

“Some of the lawyers were starting to retire, most of them were on the back end of the 30- or 40-year career,” Sayfie said.

A Broken Wheel

What Chief Judge Sayfie didn’t know, until informed by the NBC 6 Investigators, was how many of the attorneys previously handling death penalty and other cases had been barred by the JAC from getting new assignments.

“Honestly, again I wasn’t aware they were … suspended from the death penalty or the JAC wheel through next year. I wasn’t aware of that. Certainly, it is an issue,” she said, noting how “it came to a head at sort of the same time as we were concerned about this constitutional crisis.”

In October, it got so bad she declared an “exceptional circumstance,” allowing her to waive the Florida Supreme Court requirement that all lead death penalty lawyers have previously tried at least two death cases to verdict as co-counsel, in what’s called the “second chair.”

In the previous decade, Sayfie found, only 10 Miami-Dade death penalty cases went to verdict. Six of them involved private court-appointed counsel, and almost all lead counsels appointed other lead-counsel eligible colleagues to the second chair.

That meant no younger, less experienced lawyers could get a seat at the table to see cases to verdict, in the few cases where that even happened.

Making matters worse, a number of the qualified lead attorneys “are actively seeking to withdraw from cases … and/or not accepting new appointments,” Sayfie wrote in her orders waiving the two-verdict requirement for six younger attorneys.

“Due to the shortage of qualified lead trial counsel, and the high volume of capital cases, many of these attorneys are carrying caseloads above standards of what would be considered effective assistance (of counsel) … result(ing) in an enormous delay in resolving death penalty cases in Miami,” she wrote, adding the circuit “is poised for a constitutional crisis in the coming months.”

“And the reason it was a crisis was frankly we have more death penalty cases now,” Sayfie said.

So she signed orders adding six lawyers who did not have the requisite experience to be eligible for lead counsel appointments, including Carmen Vizcaino, who was appointed to represent Jorge Barahona after Adelstein and Markus withdrew.

So Barahona now has two new lawyers who have to get caught up on the case 11 years after Nubia was found dead.

“When you delay the whole process, justice denied for the family members waiting,” Fernandez Rundle said. “Sometimes it takes 10 to 14 years to get any kind of closure on these cases. And then, of course, the longer the delay, the more costly it is.”

A Probe Hits Close to Home

All that was happening as some of the most prominent criminal defense lawyers in the county were facing their own ordeal — the JAC scrutiny.

“I’m glad the JAC has instituted some very strong accounting and rules and is taking action against some of these lawyers that were taking advantage,” said Fernandez Rundle, whose office could be called on to prosecute any attorneys referred for criminal charges. “Clearly (some) were taking advantage of the system, the rules, and the process.”

Part of the problem, she said, was “we had such a small pool of lawyers who could take advantage of this — quote, unquote — what people in the system call the ‘cash cow.’”

The system, she said, “is broken in lots of different ways, but these are some of the ways we’re trying to fix it.”

Fernandez Rundle praised Sayfie for “expand(ing) the pool. So, it used to be, it was an all-white men’s club. What you had was this tight-knit club that only kept reappointing each other. That means all those cases are only going to that handful of attorneys over, over, and over again, which — what does that do? — it delays the whole process.”

Of course, Fernandez Rundle’s decision to seek death triggers the costs and other demands required of capital cases.

Asked if she could be more discriminating in choosing which cases to notice for death, she said, “We seek it where we feel it’s accurate to do that.”

While not commenting on the details of the JAC’s issues with attorneys in her circuit, Judge Sayfie said “I want to point out that the vast majority, I think, of attorneys have integrity and this is the way they practice and they’re doing a good job and there haven’t been any issues.”

Gorman, of FIU Law’s Balanced Justice Project, echoed the judge’s point that whatever fraud may occur involves “a very small percentage … I think if we put this in context of the death penalty and its cost, clearly the death penalty doesn’t cost so much because every lawyer doing death penalty work is a fraudulent lawyer. The problem is so much wider and bigger than that.”

Yet all of those suspended, terminated, or denied future work by the JAC as part of the commission’s 2020 billing review are from Miami-Dade County.

“I will say loudly and proudly that we have one of the best bars, not just in the state of Florida but in the country,” Sayfie said. “Every day all over Miami-Dade County — and I hope this is what you put in the story — people are represented and represented really well in Miami-Dade County because we have a wonderful criminal defense bar, and the state attorney’s office does a great job. So, we have wonderful attorneys on both sides who work really hard to bring closure to defendants, to victims, to everyone involved.”