It is not enough for attorney Richard Escobar simply to prove his client Pedro Arencibia innocent of cocaine possession. He wants the special drug crime division where his client's case is being heard declared illegal, too.
Escobar's argument is primarily a procedural one _ that Hillsborough's new drug court, known as Division X, was improperly established in January by an administrative order from the chief judge instead of by a process called local rule that requires a public hearing. The Hillsborough Public Defender's Office has filed a similar motion to Escobar's.
Should an appeals court rule in favor of either motion _ in short, determine that the court never had jurisdiction to hear any of the 530 cases that have been assigned to it as of the end of February _ then it could create havoc for court administrators as defense attorneys scramble to have their clients' convictions set aside, or their sentences reconsidered by other judges.
The 2nd District Court of Appeals has agreed with Escobar's request for an expedited hearing and has ordered Hillsborough court officials to respond by April 3. David Rowland, the counsel for the 13th Judicial Circuit, said he doesn't think that signals a predisposition to rule in favor of either motion.
Chief Judge F. Dennis Alvarez, who permitted Escobar and another lawyer to attend planning meetings for the new division, defended his administrative order and questioned Escobar's motives.
"There was a lot of thought and a lot of time that went into this," he said. "I think (Escobar's motive) is financial. What difference does it make to him whether it's administrative order of local rule?"
"Why it matters is that it not only gives Rick Escobar a voice, but it gives other members of this community a chance to speak out and maybe do it a better way," Escobar said.
"If my interest was only financial, I would not have said, "Do it by local rule or an advisory process and we'll go no further,'
" Escobar said.
Brian Gonzalez, a private lawyer who accompanied Escobar to two planning meetings around the Christmas holidays, agreed there is some financial concern on the part of the local defense bar. Clearly, defendants who accept diversion to drug treatment at arraignment never get to the point of hiring a private attorney who might explain alternatives to them, he said.
Gonzalez added, however, "Really and truly our concern with this is due process and constitutional in nature."
There is an drug court called Division Y. That division was set up about two and a half years ago to handle non-violent defendants who acknowledge a substance abuse problem and are willing to consider drug treatment in return for guilty pleas. Division X, however, handles all drug cases involving non-violent offenders regardless of whether they want treatment or not.
In the minds of Escobar and Gonzalez, if one judge handles nothing but drug cases, it might lead him over time to look at defendants with a more jaundiced eye. By assigning all cases on a blind rotation to various judges, that potential for burn-out is avoided, the lawyers said.
If the appeals court rules against the motions, Gonzalez said he will abide by the decision without hesitation.
"I think we'll still have the concern that all these cases are being handled by one judge," he said, "but, hey, that's part of the process."