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Lawyers Aren't Biting at Indigent-Defense Fund

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After years of sparring with the state, court-appointed attorneys finally won a raise from the General Assembly, but so far the lawyers have been slow to pick up the cash. Of the $8.2 million that state lawmakers allocated in July, only about $254,573 has been claimed.

"It's just a big cultural change for everyone -- lawyers, judges and clerks," says Betsy Edwards, director of the Virginia Fair Trial Project, which helped pass the increase.

Before the cash infusion, Virginia was among the lowest-paying states for court-appointed lawyers — private attorneys the state pays to represent clients who can't afford attorneys. Representing a client on a single misdemeanor charge is still capped at only $120 — less than many lawyers bill for a single hour of work — no matter how long the attorney spends on the case. Advocates argued that the low pay made it impossible for attorneys to provide the same quality of representation to their indigent clients as they do to their higher-paying private clients.

Even though they can now apply for a waiver to go over the cap and draw on the funds specifically set aside for such cases, the new reimbursement forms are not getting turned in. Since July, more than 150,000 charges have been brought against clients defended by court-appointed attorneys, but only 1,104 waiver-requests have been filed and 1,036 have been approved, according to the Virginia Supreme Court. The state Supreme Court has created an 18-minute instructional DVD on how to fill out the form.

Esther J. Windmueller, a prominent defense attorney who does some court-appointed work, says misinformation among attorneys about how much reimbursement is available may be discouraging them from filing for it. Judges, too, may be guarding the fund too closely, she says, adding that her waiver-requests have received uneven treatment. Although she sat on the panel that determined how the fund would be administered, Windmueller says a Chesterfield County judge decided that though she spent extra time on a multiple-charge case, it did not merit extra pay.

"They and I happen to — very respectfully — disagree about that," she says.

The forms are important for more than just the pay, says David Johnson, executive director of the Virginia Indigent Defense Commission, which oversees court-appointed attorneys. The data drawn from the forms will justify the need for the extra money to the General Assembly, he says: "This is the accountability piece." S



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