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Cheap Justice

The growing debate over court-appointed attorneys.



The cop-show cliché is etched into our collective psyche: Fleet-footed detectives cornering their fleeing suspects in dreary alleyways or fishing them out of smoky bars. They slap on the cuffs and read them their rights.

Then comes the ultimate promise of justice: "If you cannot afford a lawyer, one will be provided for you."

Few people question the importance of ensuring that someone accused of a crime has access to an attorney. But the business of having the state simultaneously accuse you of committing a crime while paying to defend you against the charge has become a topic of heated debate.

In Virginia, a growing number of legal experts contend that the criminal defense system is so deeply flawed that the very idea of American justice — that everyone is innocent until proven guilty — is increasingly out of reach for those who can't afford it.

The U.S. Supreme Court says that the logistics of the criminal defense system make it unlikely that people falsely accused of a crime could prove their innocence in court without an attorney. So criminal courts are required to appoint lawyers to defendants who can't afford their own, paying them out of the state budget.

"It's a fairness issue and it's a safety issue," says David Johnson, executive director of the Virginia Indigent Defense Commission, which certifies and supports court-appointed lawyers. "If the wrong person gets convicted, that's a great injustice, and the person who committed the crime is still out there."

But some people think the system is flawed, especially in Virginia. Critics say that what the state pays court-appointed lawyers is so skimpy that defendants get the short end of representation: less time spent on their case. People might do just slightly worse with a cast member from "Law and Order."

For the past three decades the amount Virginia has spent on indigent defense consistently ranks at the bottom of what other states are willing to pay, according to a 2004 study of Virginia's indigent defense system by The Spangenberg Group, a nationally recognized legal consulting group.

That's not because of Virginia's hourly rate, which at $90 is at the upper end. The state's low ranking is blamed largely on its system of capping how much an attorney can earn in court-appointed cases.

Take a noncapital murder case. No matter how many hours of interviews, investigations, pretrial motions and preparation court-appointed attorneys put in, the most they'll get paid is $1,235. At 50 hours on the case, that's $24.70 an hour.

In Richmond a private attorney, on average, charges about $1,500 to take a typical drunken-driving case.

"I won't take court-appointed cases," says Tony Spencer, a former deputy commonwealth's attorney who works as a criminal defense lawyer in private practice. "If I'm in a position where I'm going to put my name on a court-appointed list, I should probably go work at Burger King and make more money instead."

As the General Assembly session, which opens Jan. 10, ramps up, indigent-defense activists are hoping legislators will address what they consider the real problem: money. Gov. Tim Kaine, who practiced law at Richmond firm McCandlish Holton, is proposing an additional $9 million a year to pay court-appointed attorneys beyond the state's capped fees. If the proposal passes, it would be the first significant new funding made available for indigent defense in 30 years.

The debate over how to fix an already strained legal system, however — much less the turbulent budget process — has only just begun.

Leigh Drewry runs a private criminal-defense law firm in Lynchburg. He's been in the business for 23 years, the first 10 as a prosecutor. He just finished a court-appointed manslaughter case. It's a felony, but it carries a maximum jail sentence of less than 20 years, so the state pays him $445, maximum.

The client, Michael Payne, was no saint. In May, the 24-year-old was hanging around on the street in Lynchburg with a group of other men when Ronald Floyd Reed Jr. approached and accused them of selling him fake cocaine. Reed eventually left, but the group, including Payne, followed him down the street. One of them threw Reed down in the street. He got up and wandered over to a pickup truck that had stopped in the road.

Payne followed Reed over to the truck, pulled back and delivered a roundhouse punch above his right ear. Reed dropped dead. It turns out he had a rare blood vessel malformation in his brain that probably ruptured when he was hit. Either way, Drewry argues, one punch hardly constitutes reckless disregard of human life and safety, the state's definition of manslaughter.

The low pay aside, Drewry faced other challenges with the case. Technically, money is available from the state to pay experts who could help with an indigent defense case, but those funds are difficult to obtain.

"It's virtually impossible to get the judges to approve the essentials" in terms of experts, Drewry says. In this case, the essentials would have been an investigator and a pathologist. The likelihood of a judge approving the funds seemed so remote, he says, that he didn't even bother requesting them. Instead, Drewry walked the streets rounding up and interviewing witnesses himself. That's a dangerous proposition for a lawyer.

If one of the witnesses changes his story once he gets on the stand, the attorney becomes the only one who can challenge that version of the story. Lawyers aren't allowed to testify in their own cases, so the judge would have to declare a mistrial, appoint a new lawyer and start over.

During the trial, the state medical examiner testified to the existence of Reed's malformed blood vessel. He also said that at the time of Reed's death, he had cocaine in his system, elevated blood pressure and an enlarged heart.

Drewry didn't hire a pathologist of his own to add to the testimony provided by the state's witness. He did speak with a private pathologist who said that vessels like the kind in Reed's brain have been known to rupture spontaneously. Reed's death, therefore, could have been a tragic coincidence. If that second pathologist had testified, Drewry says, he would have argued that with multiple possible explanations for Reed's death, the jury could not convict Payne beyond a shadow of a doubt.

The jury recommended that Payne spend five years in prison, but Drewry kept after the judge, presenting mounds of legal support for his one-punch-does-not-a-manslaughter-make theory. Ultimately, the judge set aside the jury's ruling and found Payne guilty of assault and battery — a rare victory that surprised even Drewry. After having served a year in jail, Payne was released the Friday before Christmas.

At his standard rate, Drewry says, he would have charged Payne $6,270 for the 33 hours he spent on the case, at $190 an hour. Instead, he got a $445 paycheck from Virginia, which works out to about $13.50 an hour. Of course, he has his own expenses, too. He has a secretary who makes around $10 an hour. Then there's rent, malpractice insurance and electricity — all before he pays any household bills.

Drewry questions whether a younger attorney with less experience could have netted similar results.

"A young person coming right out of law school is going to have to spend a little more time to get up to speed, and he might not recognize certain [nuances of the law] as quickly as he could," Drewry says. You can't always bill the time you spend looking up case law and code, even to a private client, so that attorney could conceivably cut back on his research.

Misdemeanors and — even more distressing to defense activists — all charges in juvenile court pay a maximum of $120, the lowest per-charge fee in the country.

"I don't know any lawyer in Virginia that bills less than $120 an hour," Drewry says. "If he spends 30 minutes with the client and 30 trying his case, that's an hour."

It's pretty much an open secret among attorneys: In many cases, court-appointed work does not get the same attention as work paid at higher rates.

"You have lawyers who basically make a choice between almost committing malpractice or totally defying any business model that you can possibly have," says David Hicks, a former Richmond commonwealth's attorney who now has his own private practice downtown.

It's no secret that court-appointed attorneys are capable of shoddy work, but it's a topic that's often off-limits in the clubby world of lawyering. In fact, it's an ethics violation for an attorney not to report an ethics violation, so most of them stay tight-lipped about the malfeasance of the court-appointed.

But the statistics paint a clearer picture. A 2002 study conducted by the Virginia Crime Commission found that defendants convicted of felonies served jail sentences averaging two years longer than felons with private attorneys.

The Spangenberg Group found in its study of Virginia that low pay has led to dire circumstances for defendants. "The culture is one where substandard practice occurs and, even worse, is enabled and tolerated," the consultants reported.

One Richmond lawyer whose court-appointed work makes up 20 percent of his practice told the Spagenberg researchers, "In retained felony cases I work hard to investigate the case, look for witnesses, consider discovery and the use of an outside expert."

By contrast, he says, he tells defendants in his court-appointed cases — of which he does 300 a year — to pitch in. "I tell them to investigate the cases themselves, look for witnesses, and if they find them, bring them to the office or to court.

"Frequently, I interview witnesses just before trial and hope they will help the case," said the lawyer, whose name was withheld from the report. "Sometimes they screw up and I have to scratch around for a plea."

The report relays other disturbing anecdotes: attorneys assigning the greenest lawyer in town all the child-molester cases as a "rite of passage" and a situation in which a new attorney was asked to defend a client who was facing 120 years of imprisonment before the attorney was even fully licensed to practice law.

Defendants who think their lawyer did a lousy job have only a very narrow avenue of recourse. If they think they received "ineffective counsel," they can file a civil suit, but they will have to pay a lawyer out of pocket. The state isn't required to pay legal fees in civil lawsuits.

Since the study's release, the state has reorganized how it handles the defense cases it pays for by creating the Virginia Indigent Defense Commission, which David Johnson oversees.

It goes like this: Court-appointed lawyers are private attorneys who usually work for firms that do related work. They volunteer to add their name to a state list. Until 2005, all they had to do to qualify for the list was to be in good standing with the Virginia State Bar. Now they must take required training sessions and follow continuing education requirements. Just last month the commission proposed a new list of revised standards that will go into effect April 1.

Johnson is pleased that the issue has gotten the governor's attention, and he's crossing his fingers that Kaine's proposed $9 million will stay in the budget. "We're asking them to do more," Johnson says.

The governor's budget also includes funds to hire more public defenders, who, like the commonwealth's attorneys representing the state, are state employees. Unlike commonwealth's attorneys, who have offices in every city and county, public defenders are only in about half the state's jurisdictions.

Unlike commonwealth's attorneys, public defenders have much lower starting salaries, smaller staffs and older office equipment, according to the Spangenberg study. Localities provide office space for commonwealth's attorneys; public defenders must rent their own.

"The state funds the offices relatively similarly. What commonwealth's attorneys have is local supplements. The localities add money to what the state gives them," says Johnson, who was a public defender in Richmond before taking his current position.

"A commonwealth's attorney in a large city can go to city council and quite effectively argue: 'I'm trying to fight crime. You're losing your tax base because of crime,'" Johnson says. "When I was public defender, if I went to city council and said, 'You're losing your tax base because of crime and I need money to defend the people accused of crime,' they would just laugh."

With large caseloads and low pay, public defenders' offices typically employ young staffers who leave quickly. "We tend to be a training ground," Johnson says, "and unless the lawyers aren't facing financial issues, it's very hard to keep hold of them."

But public defenders can't take on every case that comes their way.

Say police pull over a car, for example, and find a pound of marijuana inside, but none of the four passengers claims it. Each passenger is charged with possession, but each one accuses another passenger of owning the weed. It would be a conflict of interest for the same public defender to represent all the passengers — or any co-defendants in the same charge. More manpower is needed for defense.

It's the overflow from a public defender's office that court-appointed lawyers take, but increasing funding addresses only part of their issue.

Court-appointed attorneys face tactical challenges. In cases like Drewry's, where the lawyer needs input from an expert witness to establish mental competence or to identify bullets, the attorney must petition the court for extra funding.

The commonwealth's attorney is allowed to object that the request is unnecessary, but such hearings present another danger to the defense's case as well. In order to argue the need for an expert witness, the defense runs the risk of divulging its legal strategy.

Even if the defense decides to request an expert, it's not uncommon for judges to deny such motions. In 2004 the state paid non-mental health experts for participation in only 1 percent of felony cases with indigent defendants in circuit courts.

None of this should come as a surprise to politicians. Numerous studies, reports and commissions have studied the issue and exposed problems with the system.

In 1971, The Virginia State Bar released a report declaring that "many court-appointed lawyers are overworked, underpaid, inadequately trained, without adequate, if any, investigational resources and thus unable to provide a full and aggressive defense."

Many studies but little progress in terms of adding more dollars to the system followed. According to the Spangenberg report, the fees paid by the state in 2002 were roughly $25 more than in 1985 for misdemeanors. The fees increased by $700 for felonies that carried more than a 20-year prison sentence but not the death penalty.

In 1996 a resolution from the Virginia House of Delegates noted, "[A]lthough the entire criminal justice system is suffering from a lack of adequate resources, the current level of funding for indigent defense has reached a crisis level."

In April 2006, during the budget fight in the General Assembly, a letter signed by 11 former Virginia attorneys general — every living one, except two whose current jobs prohibit them from doing so — urged the legislature to commit more funds to indigent defense.

Last year, twin bills proposed by two prominent legislators that would have abolished the caps altogether were killed.

This year, with cooperation between the attorney general's office and the governor's staff, Kaine's proposed budget would fund work above the caps in 2007. But considering that there is looming debate over how to solve the state's transportation problems, and that all 140 members of the legislature are up for election, making predictions about what will end up in the final budget is dicey.

Historically, public officials have run on tough-on-crime platforms. As governor, George Allen abolished parole and required convicted felons to serve 85 percent of their sentences, up from about 33 percent, which put even more pressure on defense attorneys without any additional resources for court-appointed work.

That the issue is getting so much attention this year from Kaine, a Democrat, has to do with a lucky alignment of the stars: Attorney General Bob McDonnell, a Republican, is an ardent advocate of increasing funds for indigent defense, too, and has been since his days in the General Assembly when he served as chairman of the House Courts of Justice Committee.

But there's also the issue of priority, such as when Johnson approached Richmond City Council for Public Defender Funds. Indigent defense must compete for state dollars with a slew of other worthy causes: schools, retirement benefits for state troopers, fishing regulations. Often, it's politically unpalatable to request funds to represent criminal defendants.

Even if this year's budget boost makes it through, it's unlikely that the state will ever pay market rates for court-appointed work, and lawyers will always be losing money. Compounded with all the logistical obstacles of extracting public money from the system, can it ever really be enough?

David Hicks, who served as Richmond's commonwealth's attorney for 12 years, says it's a start, and an important one. For people in the defense community, he says, the health of indigent-defense funding takes the temperature of the system itself.

"You're not just defending that person, you're defending the system," Hicks says. Criminal-defense cases serve to ensure that the state plays by its own rules, he explains. When a technicality — an illegal interrogation, inadmissible statements, bad searches — derails the prosecution's case, a defense attorney's job is to make sure that the government doesn't commit a crime in the course of trying to solve one.

"When you're running Pookie through the system and giving him 25 years for a mandatory minimum, I'm not impressed," Hicks says. "When you can lock up Ken Lay, who can match you dollar for dollar, then I will tip my hat to you." S

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