Virginia Lawyers Weekly

Critics railed for decades about the inadequacy of pay for attorneys who represent indigent criminal defendants in Virginia.
But little happened until an organization was formed to hire a staff and develop a strategy to change public opinion and win additional money from the General Assembly.

That effort is in jeopardy because grants used to finance the Virginia Fair Trial Project over the last six years expire this month. Jack Harris, executive director of the Virginia Trial Lawyers Association, said his organization will pay the salary of Betsy Wells Edwards, the project’s staff member, until the end of the year, but the VFTP needs $40,000 through the end of the year and an additional $160,000 next year to continue its efforts, he said.

In providing office space and logistical support for Edwards, the VTLA has been a leader in the partnership of such groups as the Virginia State Bar, the Virginia Bar Association and the Virginia Association of Criminal Defense Lawyers that have worked to level the criminal justice playing field.

Efforts are underway to secure new grants, but there is no assurance that they will be available, and the project is desperately in need of contributions from individuals and organizations to further smooth out the lumps on the field, Harris said.

“There is no more generous or public-spirited group than Virginia lawyers,” Harris said. “We’re calling on them to step forward.” The VFTP is a 501(c)(3) organization so that contributions to it are tax-deductible.

Jim Hingeley, the public defender for Charlottesville and Albemarle County, was one of the original board members of what was first known as the Virginia Indigent Defense Coalition. It changed its name to the Virginia Fair Trial Project to avoid confusion with the Virginia Indigent Defense Commission, the state agency that manages the public defender system and regulates court-appointed criminal defense attorneys.

Hingeley said the coalition stemmed from a meeting he and Richmond criminal defense attorney Steven D. Benjamin attended in New York City in December 2001.

Those at the meeting decided to focus on the nine or 10 states with the weakest systems for representing indigent defendants as part of the American Bar Association’s Gideon Project, which is named after the 1963 U.S. Supreme Court case of Gideon v. Wainwright that established the constitutional right to counsel in criminal cases.

With the lowest unwaivable cap of any state in the country on the fees that could be paid to court-appointed counsel, Virginia was certainly in that category.

The coalition obtained grants from the Open Society Institute, which has been closely associated with the Gideon Project, and the Public Welfare Foundation. It also won backing for a major study of the criminal defense system – public defender and court-appointed – by The Spangenberg Group from the ABA, the National Association of Criminal Defense Lawyers and the Washington law firm of Covington & Burling.

The 2004 report concluded that the low fees were a major shortcoming of a system that enabled and tolerated substandard representation of criminal defendants.

The report became a cornerstone of the VFTP’s effort to educate the public and policymakers about the weaknesses of the system. The report coincided with exonerations of defendants that DNA tests proved to have been wrongly convicted and with the creation of the Indigent Defense Commission as the lead agency on all matters related to the representation of indigent criminal defendants.

The net effect was to broaden the issue from pay for lawyers to the integrity of the system, Hingeley said.

Along the way, VFTP leaders developed greater sophistication in dealing with the legislative process. They learned that working with the governor’s staff to get projects included in the budget he presented to the General Assembly was extremely important in getting them funded by the legislature. Taking their case to the staff of the Supreme Court of Virginia and to the attorney general’s office during the development of the governor’s budget also became important objectives.

The 2006 budget of Gov. Mark R. Warner reflected those efforts, although proponents of eliminating the fee caps were disappointed at the relatively small scale of the adjustments. It also became clear that the General Assembly was not likely to remove the caps without a good idea of just how much the change would cost, and the data to quantify it were slim at best.

Over the next year, the VFTP and others developed the concept of a waiver of the caps in certain instances, which would produce some information on how much time court-appointed attorneys actually spend on their cases in addition to providing more money when cases required extraordinary time and effort. Harris and Edwards give the Supreme Court, Attorney General Robert F. McDonnell and Gov. Timothy M. Kaine much of the credit for pushing the proposal through the General Assembly.

The VFTP also raised money outside of the funds from the grants to hire lobbyist Aimee Perrin Seibert to help in the effort.
The initial response by court-appointed attorneys to the availability of the waivers was extremely disappointing to proponents of the legislation. 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.

In fact, the attorneys applied for and received less than $2 million in waivers when $8.2 million was available during the last fiscal year. As a result, the legislature reduced that appropriation to $3 million, with $4.2 million set in this year’s budget and $6.2 million for the 2010 fiscal year.

The encouraging development is that more and more attorneys are seeking and getting waivers as their availability becomes better known. More money was dispensed in the final quarter of the last fiscal year than was spent in the rest of the year combined.

Although fees will remain a focus of VFTP efforts, Edwards has other goals in mind, such as money for investigators and private forensic experts. She noted that preliminary research indicates that court-appointed attorneys received only $75,000 for investigators last year when the comparable numbers were $600,000 in West Virginia and $1.3 million in North Carolina.

The organization also has accumulated e-mail addresses for almost all of the roughly 1,500 lawyers on the court-appointed list. That list can be used to provide training and information on fee waiver procedure and make attorneys more aware of such underused programs as the Juvenile Detention Alternatives Initiative, Edwards said. “We want to be proactive,” she said.

Esther Windmueller, a Richmond criminal defense attorney and a former president of the VACDL, noted that all bar groups face inherent limitations in addressing an issue comprehensively because their membership is voluntary.

“It takes an external force to put people on a list outside of bar organizations,” and the VFTP has been that force on criminal justice issues, she said.

“Should that organizational tool be lost, that would be a detriment to the criminal justice system in Virginia,” she said.

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