The Roanoke Times

Friday, July 6, 2007

The right to adequate counsel

Virginia has taken some steps to bring parity to the justice system -- at least for adults. It still has a long way to go, especially in treating youths fairly.

A small but noteworthy change has occurred in the way attorneys will be compensated for representing poorer Virginians accused of serious crimes. Court-appointed attorneys can now ask in complicated cases to be paid more than $1,235 to represent defendants accused of the most serious felonies. And in November, public defenders are scheduled to receive raises that will begin to narrow the huge gap between their salaries and those of prosecutors.

These steps begin to bring parity to a lopsided system. However the scales of justice in Virginia still remain far out of balance when the resources and funding that go toward prosecuting criminals is weighed against those afforded indigent defendants.

Lawmakers this year agreed to add $8.2 million to the fund to pay for the defense of poorer Virginians. The Virginia Public Defense System lauds the change but cautions that only about one-fourth of valid waiver cases will be paid the first year. More like $30 million is needed.

Still it is an improvement, and is another of the small but steady steps that have been taken since 2003, when VPDS first issued a report card bringing attention to the serious flaws in Virginia's judicial system.

Since then, some improvements have been made in matching attorneys with the complexity of cases, requiring continuing legal education, better supervision of public defenders and easing caseloads. The group's recent report card evaluating 10 standards shows Virginia raised its marks from mostly Ds to mostly Cs -- with the exception of one crucial measure: parity.

In this category, with the most recent changes factored in, Virginia went from an F to a D. The subpar grade reflects the two major barriers to a fairer system.

First, Virginia still refuses to pay more than $120 to an attorney whose client is a juvenile. That's little more than an hour's worth of time to represent a youth whose life hangs in the balance of the outcome. As VPDS notes, "Representing a child on felony charges is as complicated and difficult as representing an adult on felony charges, if not more so."

At a minimum, counsel should be paid the same to represent juveniles.

Second, unlike prosecutors, counsel for indigent clients cannot have access to expert assistance without court approval. This not only hampers the defense if the court refuses the expense but it tips off prosecutors to the defense strategy.

This can be corrected if lawmakers approve VPDS's suggestion to set up a noncourt agency to administer a fund to pay defense experts.