Rules panel wants representation at first appearances.

Once a contentious issue pitting the guarantee of constitutional rights against practical concerns in a budget crisis, the vote was 28-0 to mandate that both prosecutor and public defender be required to attend all first appearance proceedings--the first chance for a defendant to get out of jail.

The unanimous vote of The Florida Bar Criminal Procedure Rules Committee came at the Annual Convention in Boca Raton, after H. Scott Fingerhut stepped down as chair to deliver a passionate speech invoking Gideon's promise that justice should not depend on the amount of money in a defendant's bank account.

"Jail is an awful place. I'm reminded of that uniquely every time I take my students there on a tour. The looks on their faces ... Chesterton wrote that we get too used to it; that all we see is the prisoner in the dock ... the 'usual man in the usual place,'" Fingerhut said.

"For us to vote against this proposal is to express your comfort, your willingness, to sit in jail even a moment longer than you'd otherwise have to. And because I believe that no one in this room feels that way, to vote against this rule change is, to me, hypocritical....

"It comes down to this: I would not stand silently by and facilitate your being treated like 'the usual man in the usual place.' And because I would not stand silently by, I will not cast a vote to allow others to do so in my stead."

The unanimous vote that followed was a marked departure from the feisty debate that played out at the committee's January meeting, when Third Circuit State Attorney Jerry Blair, Eighth Circuit State Attorney Bill Cervone of the Florida Prosecuting Attorneys Association, and Eighth Circuit Public Defender Rick Parker, of the Florida Public Defender Association, spoke of practical roadblocks to carrying out the rule. They simply don't have enough bodies, they said, in tough budget times.

The matter first came to the committee in a letter from West Palm Beach criminal defense attorney Donnie Murrell, (now chair of the Bar's Criminal Law Section) who wrote: "Believe it or not, first appearances occur with some frequency throughout the state without a prosecutor or public defender being present."

Murrell was back before the committee in June, hoping for a favorable vote to make sure indigent defendants are afforded their rights at these critical hearings--held within 24 hours of arrest, when judges consider defendants' release on recognizance or set bail, review the sufficiency of...