Virginia Lawyers Weekly

The Virginia Fair Trial Project, the criminal defense coalition formed to level the criminal justice playing field, will close its doors at the end of the month.

Jack Harris, executive director of the Virginia Trial Lawyers Association, said in September that the grants that had funded the project for six years had run out, and it would have to shut down unless new sources of funding were found.

As the economy deteriorated and foundations saw their endowments shrink, it was “a tough time to be looking for money,” Harris said.

“I can’t imagine an organization doing a more thorough job than was done in the last six months” to try to find money, but none was available, Harris said.

“With this work, there are only a few people who fund it,” said Betsy Wells Edwards, the executive director of the project.

One of those, the JEHT Foundation, had invested its endowment with Bernard L. Madoff and was forced to shut down when it learned of the multi-billion fraud he has acknowledged perpetrating.

“You have to believe in the Constitution very firmly and that everyone is entitled to a vigorous defense and a fair trial,” Edwards said. That somewhat abstract principle loses its force when its practical application becomes more tax dollars for criminal defendants, many of whom are guilty, and the attorneys who represent them, she said.

The last hope the project had was the possibility of a $100,000 grant from the Virginia Law Foundation, but the VLF decided not to fund the project.

The VTLA provided office and logistical support for Edwards and led a partnership of such groups as the Virginia State Bar, the Virginia Bar Association and the Virginia Association of Criminal Defense Lawyers that pressed for criminal defense reform.

The major item on the project’s agenda was elimination of the unwaivable caps state law places on the amount that criminal defense attorneys can receive for representing indigent clients.

When that effort ran into concern from legislators about the cost of removing the caps, the project proposed legislation that would permit a limited waiver of the caps for cases that required more time.

The effort won the support of the Supreme Court of Virginia, Attorney General Robert F. McDonnell and Gov. Timothy M. Kaine and resulted in an appropriation of $8.2 million for the waivers in the 2008 fiscal year.

Defense attorneys were slow to respond to the program, in part because the paperwork and timekeeping required to obtain a waiver was contrary to the practice and culture of many criminal defense attorneys, who typically get a flat fee from private clients.

Edwards led a major effort to educate those attorneys that a more comprehensive reform of the system required accurate reporting of the time they spend on cases so that the legislature would have better information about the cost of removing the caps.

Defense attorneys asked for only about $2 million of the $8.2 million available for the waivers in the first year, but the pace picked up toward then end of the year, and the legislature appropriated $4.2 million for the program this fiscal year.

Both the House and Senate budgets have allocated the same amount for 2010. The budgets differ substantially in other areas, and a conference committee will try to resolve those differences.

Although the fees would have remained a focus of VFTP efforts, it had other goals in mind, such as money for investigators and private forensic experts. Edwards noted that preliminary research indicates that court-appointed attorneys received only $75,000 for investigators in the 2008 fiscal year compared to $600,000 in West Virginia and $1.3 million in North Carolina.

The organization also had accumulated the e-mail addresses for almost all of the roughly 1,500 lawyers on the court-appointed list. Edwards said the list could be used to provide training and information on fee waiver procedures and to make attorneys more aware of such underused programs as the Juvenile Detention Alternatives Initiative.

David J. Johnson, executive director of the Virginia Indigent Defense Commission, said the VFTP’s work on fee caps was important, but “more than that, they were a resource” in coordinating those interested in indigent defense work and providing information for them.

Harris said development of the strategy to win fee-cap reform showed the importance of having paid staff to coordinate such efforts.

“The worst part of it from this end is to have someone as dedicated and successful [as Edwards] in achieving the goals of the project have to move on,” he said.

Moreover, he said, the report this week of the National Research Council on the shortcomings of government forensic labs demonstrates that the field is still far from level.

“We got a lot done,” Edwards said, “but there’s a ton left to do.”

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