After arrest, after bail, someone charged with a class 5 felony has some questions to answer, said Jon Gould, professor of justice administration at George Mason University. “Do you want someone who’s really going to do a good job? Or do you want someone who’s just going to get up and represent you?”
Charged with carrying two ounces of marijuana, or computer fraud, or selling black market cigarettes, and facing 10 years in jail, a criminal defendant can expect to pay $10,000 for a good attorney — not even the top private defender. That’s 20 or 30 hours of work by the attorney at $125 an hour, Gould said, plus a private investigator or a translator, if necessary.
“Clearly, the more effort an attorney puts in, the more chance of acquittal, or reduction of sentence,” said Gould. But even $10,000 doesn’t guarantee that a defendant facing the maximum sentence will be able to bargain his way down.
Those numbers leave Assembly representatives, local officials and even prosecuting attorneys asking: Is it fair to only pay $400 to attorneys representing the poorest defendants? And does such a system compromise justice?
Arlington representatives Del. Adam Ebbin (D-49) and state Sen. Mary Margaret Whipple (D-31) introduced bills during this year’s General Assembly session to address that economic disparity. Ebbin and Whipple were looking for more than increased payments — they hoped to establish an office of the public defender, budgeting up to $3 million a year to pay for full-time defense attorneys for Arlington’s poorest defendants.
Those bills stalled during the Assembly’s first two months, delayed until 2005. So surprise greeted the news that the General Assembly had approved $1.6 million to establish an office of the public defender in Arlington, money available as of July 1.
<b>OVER THE NEXT</b> six months, local officials say, the move to establish that office will bring a new government office to Arlington. That office that could employ some 15 attorneys and handle over 1,500 criminal cases each year, representing the poorest defendants in Arlington — those who cannot afford to pay for an attorney when their freedom, or their lives, are on the line.
Criminal cases in Fairfax and Alexandria are already handled by public defenders’ offices, and a capital defender’s office handles death penalty cases around the state.
That action came as a surprise to the people most affected by the bill. “Somebody said, ‘Hey, did you hear that the public defender passed?’” said Commonwealth’s Attorney Richard Trodden (D). “I said, ‘Whoa!’ I thought it was gone for another year.”
The court-appointed attorneys who would, in many cases, be replaced by public defenders were also caught off-guard by the sudden approval for the office, and are waiting to see what role they will play in future Arlington court rooms.
That uncertainty is shared across the county, said County Board member Walter Tejada (D), who vowed to push for the office in a Jan. 1 speech setting out his priorities for 2004. “We’re still finding out the details,” said Tejada.
<b>THOSE DETAILS INCLUDE</b> who will serve as Arlington’s public defender; when the office will open; how much funding for the office will come from the county; how many attorneys will staff the office; and how many cases each attorney will handle next year.
Members of the Virginia Public Defender Commission will name Arlington’s new public defender later this year, a decision that will also set the timetable for the office to open.
“We have four new offices to open,” said Richard Goemann, executive director of the Commission. “I expect Arlington will be near the front of the line.” He hoped that the office would be able to open in the early fall, while Tejada was hoping to push for a late summer opening.
<b>IN ADDITION</b> to the $1.6 million budgeted by the state, a public defender’s office will likely need about the same amount of county funds, said Trodden. “It is my hope that the locality will see fit to make sure it is funded approximately the same as my office,” which had budgeted expenditures of $3.1 million in 2004-05.
The Arlington Commonwealth’s Attorney office is staffed by about 39 people, including 16 assistant attorneys, he said, so “12 would not be out of line” for a public defender’s office. Goemann agreed: “The general guideline is that there should be 75 percent of the lawyers from a Commonwealth’s Attorney’s office in public defender’s office.”
A public defender is intended to address the biggest concerns with court-appointed attorneys, high caseloads and low cash, and a neglected public defender could face the same problems, and it’s crucial not to see a public defender’s office as a safe haven for cash-strapped defendants, said Trodden. “The worst of all possible worlds would be to have institutionalized a bad system.”
That’s the key caveat whenever dealing with the attorneys representing low-income defendants, said Kim Smith, co-chair of the Arlington Civic Federation’s public services committee. Last fall, Smith wrote a background paper for a Civic Federation resolution supporting a public defender’s office. “If we’re going to do it, then we’re going to do it right,” she said. “I don’t want an overworked attorney who can’t pay the attention to a case that it deserves.”
<b>PUBLIC DEFENDERS</b> would handle all defendants facing criminal charges who cannot afford to hire their own attorneys. Currently in Arlington, those defendants are represented by a pool of about 30 attorneys, appointed by the courts and paid on a case-by-case basis.
In 2002, those attorneys were responsible for some portion of the 1,599 juvenile cases; 528 misdemeanors; 86 felonies; 1,550 criminal indictments; 1,069 sentencing hearings and 206 appeals that came through Arlington Circuit Courts. In 1999, 2,492 private attorneys were appointed to handle cases in state criminal and juvenile courts.
State regulations limit the amount that the state will pay court-appointed attorneys for each charge a defendant faces. For felonies that could lead to a death sentence, an attorney cannot earn more than $1,095; for other felonies, a court-appointed attorney cannot earn more than $395, and for juvenile and misdemeanor charges, the attorney can only earn $112.
Certainly, some cases do not need an attorney committing time to the courtroom, said Trodden: a good prosecutor or defense attorney can read the cards, and will agree to a plea bargain when evidence is overwhelming for or against the defendant.
<b>BUT EVEN THOSE</b> cases require a commitment from a defense attorney, said Trodden. “A good defense attorney is not going to roll over until he sees” what evidence the prosecutor has.
In those cases, Trodden and Tejada, and in cases that go to trial, a public defender has a significant advantage over a court-appointed attorney: a public defender’s office, funded to the tune of over $3 million a year.
That office could afford to employ private investigators and translators that would reach beyond the capped budgets of court-appointed attorneys. “They will have investigators who can go to the scene of a crime, they will be able to pursue discovery,” said Tejada. “Defense attorneys always have access to discovery, but in some cases, court appointed attorneys may lack the time, and there may be an overwhelming amount of evidence for them to review.”
Those are burdens that Virginia’s payment caps make impossible to meet, said Goemann.
“Virginia’s system of paying court-appointed attorneys discourages them from doing all the work that’s necessary to properly prepare for cases,” he said.
But a public defender’s office should not be license to bash court-appointed attorneys, said Trodden, most of whom work hard for low pay to defend their clients. Even with a public defender’s office, Trodden said, “there’s still a market for court-appointed attorneys,” especially in cases with multiple defendants, including many gang-related criminal prosecutions.
<b>MEMBERS OF</b> the state Senate’s Courts and Justice committee had set aside Ebbin's and Whipple's bills, delaying their decision until a state-wide Indigent Defense Commission could complete a review of the 21 public defenders’ offices in the state and the court-appointed systems in place in all other jurisdictions.
Ebbin pushed for Assembly approval of an Arlington public defender before that report. “This is one of the few cases where I thought the House position should prevail,” said Ebbin. “I was happy that it did.”
The Indigent Defense Commission could still have an impact on the defense of poor defendants in Arlington: the commission’s recommendations could be put in place by the Assembly next year, raising the payment limits for court-appointed attorneys and affecting public defenders’ offices around the state.
“The goal, I think we can all agree, is to provide a fair, and the best possible, defense for indigent defendants in general,” said Ebbin. “The system is in drastic need of improvement.”