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Business Observer Friday, Sep. 3, 2004 17 years ago

Public Defender No. 1

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Forget the hangini rope. Open the book of reason. Meet Elliott Metcalfe Jr.

Public Defender No. 1

Forget the hangini rope. Open the book of reason. Meet Elliott Metcalfe Jr.

By Scott Ferguson

Special to GCBR

Dark hair lightened by gray, a face beginning to show age lines. Elliott Metcalfe Jr. looks like a regular guy, not someone who regularly saves others.

Still, over nearly three decades, Metcalfe has defended poor people who face time behind bars. To countless people in Sarasota, Manatee and DeSoto counties, Metcalfe o the zealous advocate and defender of civil liberties o is their guardian angel.

Most havenit met him; many donit know his name. But he has fought for them since his 1976 election as the 12th Circuitis public defender.

Heis a prankster, philosopher and paradox.

Employees have howled in laughter at his practical jokes. When it comes to personal freedom and the little guy, he takes to the soapbox. Heis a registered Republican who speaks his mind: We need less government and taxes and more personal freedom.

His Libertarian views have ruffled more than a few feathers. Heis opposed to the death penalty, the Patriot Act, term limits, and laws forbidding same-sex marriage. Yet heis also revered as the longest-serving Republican elected official in the Sarasota-Manatee area.

Sarasota Republican Party Chairman Tramm Hudson characterized him as a icompassionate conservativei when the party gave him the 2003 local GOP Statesman of the Year Award.

Metcalfe has been elected eight times, most recently without a vote since no one qualified to run against him. When he retires in 2009, he will have spent 32 years in office.

At 59, he still appears somewhat boyish. His easy energy seems undiminished by the burdens of a job that routinely includes the representation of murderers, rapists and child abusers o and as heid quickly remind you, the wrongfully accused.

Not a day passes that he and his staff donit face the pain and anguish of crime victims, and the angry voices of citizens intent on retribution o as in the abduction and murder of 11-year-old Carlie Brucia.

To cope, Metcalfe relies on his firm belief in the rights of the individual and his love of the law.

As the boss of more than 90 people, including 45 lawyers, Metcalfe spends more time pushing paper than arguing law in the courtroom. But he still attends court, setting the tone for what is often cited as one of Floridais best-run public defender offices.

iElliott is the consummate public defender in Florida,i says 12th Judicial Circuit Judge Andy Owens. iEveryone in his office does an excellent job o they all follow his example. Thereis very little turnover, because Elliott treats his attorneys with respect.i

Mosquitoes, sulfur water and heat

Metcalfe was born in New Jersey, where he grew up rooting for the New York Yankees. His father, an accountant for Anaconda Copper, worked in New York City. When Elliottis uncle was diagnosed with cancer and given six months to live, he moved to Florida and lived 13 more years.

Young Elliott was impressed that the area had such a favorable effect on his uncleis health, idespite the mosquitoes, the sulfur water, the heat and the general lack of air conditioning,i he says.

Elliottis father later retired to Sarasota, strengthening his sonis ties to Southwest Florida.

eSilent Springi

In the 1960s, while attending Monmouth College (now Monmouth University) in West Long Branch, N.J., Metcalfe, a business major, was struck by isenior scare.i

iAs I got closer to graduation I thought, eWhat the hell am I gonna do now?i My girlfriendis father was a lawyer, and I began to think that law school would be a lot more fun than anything else I could do,i he says.

In 1970, Metcalfe received a law degree from Stetson University College of Law, Gulfport, after just two-and-one-half years o which included a stint in the Marine Corps as a radio operator.

But in the recession of the early 1970s, there were few jobs available for young attorneys, Metcalfe says. In need of money to pay college loans, he went to work as a lawyer at the U.S. Department of Agriculture.

At about the same time, Rachel Carsonis book, iSilent Spring,i published in 1962, unleashed a fierce debate over the use of the agricultural pesticide DDT, whose scientific name is DichloroDiphenylTrichloroethane.

Environmentalists protested the use of DDT for fear it was poisoning wildlife and humans. A legal battle ensued and Metcalfe began work on the case.

iThere were hundreds of registrations for the use of DDT, so we had a lot of work to do. There were 50 court reporters, and a lot of government and private attorneys working on the case,i Metcalfe says.

iWe had experts, including the U.S. surgeon general, testify that the use of DDT was critical to the prevention of malaria,i he recalls. iOne witness I cross-examined said that DDT wiped out birds, but it turned out he was a herpetologist o he knew about snakes, but he was not an expert on birds.i

For a young, green attorney, it was a great learning experience. The hearing officers ruled in the USDAis favor. But after the Environmental Protection Agency was formed in 1970, regulation of DDT was reassigned to that agency, and the EPA administrator overruled the hearing officers. Metcalfe and his colleagues returned to court, but lost on appeal.

Although DDT is still used in third world countries, it was banned in the U.S. in 1972. Elsewhere, it remains ithe No. 1 protection against malaria,i he says.

The lesson for Metcalfe? No matter how popular or unpopular a cause might be, thereis always another side to the story.

Useful knowledge for a lawyer whoid spend his life on what some view as ithe wrong side.i

Guyis guy

In the 1970s, Floridais public defender system was new, created in the wake of the U.S. Supreme Courtis 1963 decision in Gideon v. Wainwright, which held that a criminal defendant is entitled to a lawyer even if he canit afford to pay. The Gideon case, which originated in Florida, helped create the first statewide public defender system in the country.

Metcalfe returned to Sarasota to work for James Gardner, the 12th circuit public defender.

iFloridais public defender system was very progressive,i recalls Metcalfe. iIt was an exciting time, and a lot of the lawyers who went to work as public defenders in Florida had worked on the Gideon case.i

When Gardner changed sides and became state attorney, Metcalfe ran for public defender. Another young lawyer named Toby Hockett opposed him.

iWe both ran professional, gentlemanly campaigns,i Metcalfe says. iWhen I was elected, he went back to private practice.i

A few years later, Hockett accepted Metcalfeis proposal to work with him. Few people were surprised; Metcalfe is known for getting along with just about everyone. Even when he disagrees, heis friendly and engaging. Hockett and Metcalfe still work together.

Says Derek Byrd, an attorney in private practice who once worked for Metcalfe: iElliott is a guyis guy. Heis laid-back, easy to talk to o not a micro-manager. Heis involved, but he lets you have your own freedom o and freedom is the reason a lot of people go into the law.i

Twelfth Circuit State Attorney Earl Moreland also worked for Metcalfe. Now Morelandis office prosecutes those defended by Metcalfeis assistants.

iThere are 20 judicial circuits in Florida, and many donit operate as well as we do because of personalities and inherent conflicts,i says Moreland. iThereis nothing more adversarial than criminal law, and itis hard to switch sides sometimes. But weive managed to overcome the dichotomy in our circuit and maintain a good working relationship.i

Scarlet letter

Metcalfe realizes that one personis liberty may limit another personis freedom o an irony of democracy that has led to some lively debates with his wife, Becky Titus, a judge.

Titus once worked with Metcalfe, but since sheis better at refereeing, she became a judge, he says, iwhile I like to come into the ring swinging.i

The couple has been known to argue the finer points of public beach signage, for example. Metcalfe wonders why the county needs i60,000 signs telling me what I canit do,i he says.

The judge? She wants more signs (iNo Frisbees Allowedi) that admonish against activities that might prevent her from enjoying the beach in peace.

Metcalfe and Titus have even taken their Tracy & Hepburn Adamis Rib routine on the road. In the 1980s, when Titus was promoting the use of bumper stickers identifying drivers as convicted DUI offenders, the couple appeared together on i60 Minutes,i iThe Today Show,i iLarry King Live,i Phil Donahue, and even on Australian television.

Metcalfe, who referred to the bumper stickers as iThe Scarlet Letter,i appealed all cases that required drivers to place them on their cars.

iI lost the appeals,i he says, iand DUIs dropped dramatically in the county for about a year-and-a-half while the bumper sticker program was in force.i

Less government, more freedom

Metcalfeis Libertarian views go back to the 1960s.

iI was a big fan of Barry Goldwater,i he says, recounting his first time as a volunteer on a political campaign o the Arizona senatoris unsuccessful 1964 iIn Your Heart You Know Heis Righti bid for the presidency.

iI was convinced that Goldwater was right,i says Metcalfe. iLess government, lower taxes, more personal freedom, thatis what he stood for, and heis a hero of mine because of it.i

Today itis different, he says, adding, iI canit tell the Republicans from the Democrats when it comes to individual freedom.i

How does someone who believes in less government stand squarely behind the idea of government-paid defense attorneys? Simple, says Metcalfe.

iThe government is sometimes too quick to take people away and put them behind bars,i he explains. iI want to make sure they earn the right to do it.i

Twelfth Circuit Chief Judge Robert Bennett Jr. says Metcalfe is adept at ensuring that judges and juries earn that right.

iThe average person has a perception that the public defender represents ebad guys,i i Bennett says. iPublic defenders get a lot of flak from citizens, because their job does include representing murderers, rapists and purveyors of drugs. But at the end of the day, as with any lawyer, the public defenderis most important role is as a protector of individual liberties. The constitutional basis of the law requires the legal profession to defend the individual against the government. Thatis what the Bill of Rights is all about.i

Former state Sen. Bob Johnson concurs. iElliott has a terrible job because a lot of people donit understand the constitutional right to defense,i he says. iBut heis always positive, and heis always a gentleman, even when people are yelling at him to eHang that sucker!i i

Bennett says, iWithout Elliott Metcalfe and the people who work for him we wouldnit have people who are constantly vigilant, making sure that police, judges, state attorneys o and the man in the street o play by the rules. The law applies equally to a police officer as it does to the kid on the street trying to buy or sell drugs. The public defender holds me in check. If I donit follow the law, there are remedies.i

The iflaki that Metcalfe and his assistants encounter can be serious o including death threats. But Metcalfe remains philosophical: He sees expressions of rage as an inevitable part of the job.

iThereis an honest anger, a sense of helplessness in the community after someone is hurt or killed,i says Metcalfe. iThe vigilante mentality is still out there, so some people donit want to wait for the lawyers, judges and juries to do their jobs.i

Metcalfe says he doesnit support the death penalty because he has seen over and over again that itis not applied fairly and itis not cost-effective.

iThe worst murderers Iive seen have often not faced the death penalty, while others have,i he adds. iThe process of conviction and appeals takes so long that itis actually more expensive for the state to kill someone than to give him life in prison. And the process is agonizing for the victimis family to go through. The best way to achieve finality in a capital case is to lock a convicted murderer up for life.i

Rigorous defense

To defend a person convicted of murder during the penalty phase of a trial, Metcalfe and colleagues thoroughly research family history and life experience. That sometimes means traveling to places where a client has lived. Metcalfe used to do much of the work himself; now he trains younger lawyers to do it.

iIive been in some of the toughest ghettos in the country interviewing witnesses,i he says. iWhat we often find in capital cases is that the defendant has had a head injury, has been abused, or has been involved in some type of substance abuse.i

Metcalfe, along with Floridais other public defenders, sometimes finds himself at odds with the Legislature, whose representatives donit usually appreciate the costs associated with research, witness depositions and other tools of the public defenderis trade.

iMost legislators look at public defenders as a necessary evil,i says Johnson. iTheyid never fund it if they didnit have to. A lot of them donit believe that everyone is entitled to a defense, so itis a hard row to hoe.i

Second Circuit Public Defender Nancy Daniels, based in Tallahassee, says Metcalfe is outspoken in ensuring legislators know how trial preparation actually saves money in the long run.

The boss

Twelfth Circuit Judge Rick DeFuria, another former assistant public defender, says he learned a lot working with Metcalfe.

iHeis smart enough when dealing with independent people to leave them alone,i DeFuria says. iHe guides you, but he expects you to stand on your own two feet. He gives you free rein if you earn it.i

Adam Tebrugge, who represents those accused of the most heinous murders (including Carlie Bruciais alleged killer), agrees. iElliott is not a guy who looks over your shoulder or second guesses your work. He lets you do your job,i he says.

Metcalfe sometimes helps with the fine points of a case. But much of his time is spent grooming younger lawyers, including Tebrugge.

Bozo, Bush and Kerry

Metcalf looks beyond law degrees when he hires.

iYou can get straight As in law school or have an impressive background,i he says, ibut knowing how to read people is just as important in this job o a skill you could develop from putting in some time as a bartender.i

Metcalfe has hired many lawyers over the years, including brilliant legal minds iwho dressed like theyid slept in their clothes,i he says. iOne guy came in wearing an earring. I said, eSorry, you canit wear an earring in court or around the office.i i

Metcalfe insists on decorum in the courtroom, and he expects his staff to be hardworking and committed to public service, but he says they also need release from the pressure of dealing with life-and-death issues. He encourages crossword and jigsaw puzzle breaks.

iOnce I had a Bozo the Clown punching bag,i he says of an inflatable toy with a weight that made it pop up after it was knocked down. iI used to enjoy getting in some good left and right hooks to Bozo. Now Iim thinking of setting up Bush and Kerry punching bags, and people can take out their frustrations on whichever one they want.i

Metcalfe is behind some legendary practical jokes, as Judge DeFuria can attest. Once Metcalfe hid under a desk and grabbed DeFuriais leg during an important meeting. After DeFuria let out a blood-curdling scream, Metcalfe calmly climbed out from under the desk, said, iExcuse me,i and left.

Another time, a secretary told DeFuria that the angry mother of a client whoid lost a case was headed to DeFuriais office. While DeFuria was trying to escape out the window, Metcalfe revealed the charade amid gales of laughter from staff members.

iWork hard and play hardi has always been Metcalfeis philosophy, and Judge Owens understands why.

iElliott knows that working in the public defenderis office is a very tough job,i Owens says. iThe workload is incredible. O If the atmosphere at work wasnit pleasant, it would be totally impossible.i

Swan song

Metcalfe plans to use his last years in office to help his staff adjust to budgeting changes, brought about by the Legislature assuming responsibility for the funding and administration of the courts.

Heill also work closely with staff members who might become his successor. Adam Tebruggeis name is often mentioned. Metcalfe says Tebrugge is an excellent lawyer, but he needs to develop his administrative skills o and Metcalfe plans to help him.

Metcalfe says heill also continue to foster a sense of community service among his staffers. Heis an active volunteer for programs that protect animals and children, he says, ibecause they are victims who often canit speak for or defend themselves.i He is involved in initiatives such as Teen Court and Drug Court, which help keep offenders out of the criminal justice system.

Second chance

A few years ago, Metcalfe met a woman who was estranged from her family and destitute. She lived in the woods, and had been through Drug Court for a substance abuse problem. The woman asked for a job.

iThatis the true test of your beliefs,i he says, iif you believe people can change and youire willing to give them a chance.i

He gave her a clerical job on a trial basis, while his wife gave her clothes. iShe took the bus to work in Bradenton. She showed up every day, and she turned out to be a great employee,i he says.

Metcalfe doesnit believe in the death penalty, but that doesnit mean he doesnit believe in punishment.

He says that people who break the law o especially young people o should suffer consequences for their actions. If they donit, theyill offend again.

But he also believes in constructive rehabilitation, and that justice must be tempered with mercy.

iYou have to have some concept of forgiveness,i he says. iA lot of offenders will be coming back to live with us again. Many are people whoive had bad breaks, and if we just help give them a work ethic, they can turn their lives around.i

What will be Metcalfeis legacy?

iThat might be better for others to decide,i he says. iBut Iid like to think that people will say we took our oath seriously to protect the constitutional rights of all citizens, and that we helped uphold the freedoms we all cherish.i

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