Prosecution, Defense See Indigent Cases Differently

Friday, Apr 04, 2008 - 12:09 AM

By A. BARTON HINKLE
TIMES-DISPATCH COLUMNIST

Last Friday's column on indigent defense -- "Virginia Too Often Lets Prosecutors Play With the Net Down" -- turned out to be something of a "Rashomon." It should come as no great surprise that prosecutors and defense attorneys have different takes on the subject.

The column noted that court-appointed attorneys get paid less in Virginia than in any other state. The General Assembly set up a fund to provide additional compensation. But -- for whatever reason -- few court-appointed lawyers have tapped it. And that's too bad, because America's adversarial court system needs strength on both sides of a case. Weak defense increases the likelihood of wrongful conviction -- and convicting an innocent man is the same thing as letting the guilty get off scot-free.

One prosecutor found it hard to believe that life for court-appointed lawyers could be all that tough, when -- he said -- the supply of those trying to get on the list far outstrips the demand. He also disputed the assertion that Virginia's going rate for court-appointed lawyers was the lowest in the country. And he provided documents from the Supreme Court of Virginia showing that some lawyers and law firms seem to have no problem raking it in -- to the tune of six figures in some cases.

For instance, in 2007 one lawyer was paid $126,070 -- nearly $70,000 of which was for defending 186 persons charged with felonies. Another claimed $119,941 -- of which more than $78,000 was earned defending 206 persons on felony charges. And a third collected $165,258 -- of which roughly $152,000 came from defending 370 individuals on felony charges. Juvenile, misdemeanor, and assorted other cases usually made up the difference. Throw in money paid by private individuals for other types of cases, the prosecutor said, and the lawyers probably aren't living off government-surplus cheese. (It also bears mentioning, although the prosecutor didn't, that commonwealth's attorneys are not exactly getting rich, either -- even though they put up with threats from sadists and sociopaths who would slit their throats with glee if given half a chance.)

THOSE HIGH-dollar figures represent the exception, not the rule. And the assertion that Virginia's caps on fees paid to court-appointed counsel make the commonwealth's going rate the lowest in the nation comes from the American Bar Association's 2004 report on Virginia's indigent-defense system. But even Betsy Wells Edwards, director of the Virginia Fair Trial Project (which advocates for indigent defense), says the comparison involves apples and oranges and -- depending on the number of charges in any particular case -- Virginia might not have had the lowest going rate.

So it might be simply that the defense bar has exceptionally good P.R. skills. But it seems more likely that compensation for court-appointed lawyers is wildly uneven. In support of that theory, consider this message from a small-town lawyer in response to last week's column:

"A large portion of my practice comes from court-appointed criminal cases . . . . When appointed clients ask me, 'If I can get some family or my church to pay you, will that help?' I respond that the quantity of my compensation has nothing to do with the quality of their representation. I have had misdemeanor cases that I've worked for months and [on which I have] put in numerous hours and multiple court appearances. After concluding some of these cases, I've done the math, and I've come out making less than $10 an hour . . . .

"I DISAGREE with the notion that the defense bar does not apply for the waivers [on fee caps provided for by the General Assembly-created fund] because of an [i]ngrained expectation of low pay; rather, I subscribe to the theory that we don't apply for them because we don't get them when we ask for them.

"For example, I recently defended a man accused of cocaine distribution and possession of a firearm as a felon. He faced over 40 years in prison, and after dozens of hours of work, two lengthy suppression hearings (the police clearly fabricated the basis for search warrants and probable cause for his arrest, but my efforts did not sway the judge) and hours of wrangling with the prosecutor about the probable basis of appeal on the suppression issues (upon which the prosecutor agreed) I was able to procure a plea agreement by which my client received 2 years of active time (of which he would only serve 1 year, as he was credited with the 1 year he had already spent behind bars awaiting trial). Thus, I took what was a potential 40+ year sentence and had it reduced to 2 years with time suspended, and how was I rewarded when I asked for a measly $600 above the statutory fee? I was denied!"

That is an anecdote, and the plural of anecdote is not data. But the anecdote may help illuminate the data that provided the basis for the fund created by the General Assembly. Do court-appointed lawyers have it easy or rough? There are two schools of thought on the subject. You be the judge.

My thoughts do not aim for your assent -- just place them alongside your own reflections for a while. --Robert Nozick.

Contact A. Barton Hinkle at (804) 649-6627 or bhinkle@timesdispatch.com.