Arlington won state funding for a new public defender's office in 2004 but now, local officials report the money is not enough. Pay rates are insufficient — according to many on the county board — to attract quality attorneys, a widespread problem throughout the Commonwealth. This translates into a lower standard of representation in court and a miscarriage of justice, advocates say.
"We have to provide adequate representation for people who can't afford it and if we don't do that, we're not measuring up to our constitutional obligations," said County Board member Chris Zimmerman.
State approval for the new office was granted in October but it has yet to open. In the meantime, defendants in Arlington courts are represented by court appointed attorneys, many of whom, according to County Board member Walter Tejada, lack the time, energy and sometimes the ability to argue effectively on their behalf.
"There are some good attorneys defending the indigent now but the vast majority of court appointed attorneys are doing an inadequate job of representing the poor," said Tejada, who was part of the legislative effort to have the office established.
At the heart of this funding crisis is the state's pay rate for public defenders, a wage that is the same in every corner of Virginia and fails, according to Zimmerman, to account for the higher cost of living in urban areas like Arlington.
"Rent in Arlington is going to be higher that in other parts of the state but Richmond doesn't seem to recognize that," he said.
Since 1971, according to the National Association of Criminal Defense Attorneys, Virginia has increased the average amount it pays court-appointed lawyers by $12 per case. The average amount paid in 1971 was $233. It is now $245.
"If you're an attorney and you get $400 for a case in the Arlington Public Defender's Office or you can have a case where you'll get $1,200, it isn't hard to figure out which one you're going to take and where your priorities are going to be," Tejada said. "We have to make the salaries attractive to good attorneys. It is also important that the office reflect the diversity we have in Arlington with attorneys of different backgrounds but those attorneys are so valuable that they are more often recruited by law firms. We have to make our salaries attractive to them."
IN THE COURTROOM, lower wages, Tejada added, mean less time spent on each case and a lower quality of representation for the poor. For example, he said, many court appointed attorneys will forego an examination of the evidence against a defendant and go straight into plea bargaining.
"That evidence needs to be reviewed but we're hearing about cases where the court appointed attorneys aren't even asking for it to be reviewed," he said. "Plea bargaining is common all over the country but there's no question a defendant benefits from an attorney who takes a moment to examine the evidence."
Just when the new public defender's office can open its doors is still up in the air. The office, which will consist of 14 attorneys and two staff members, has yet to sign a lease on office space near Courthouse plaza. Yet the office's need for a new home is not the product of funding problems but, rather, the high cost of real estate in and around the area.
THE FUNDING WOES have triggered a legislative push in Richmond to offer better funding for public defender's throughout Virginia. Del. Adam Ebbin (D-48) plans to present a budget amendment in the coming "short session" of the General Assembly beginning this month to propose just that.
"There are three approaches to this problem," Ebbin said. "We can increase the funding for all public defender's office no matter where they are working in the state. We can ask for a pay differential or we can find some local way to supplement salaries."
A 2004 study conducted on behalf of the American Bar Association ranked Virginia fiftieth of 50 states in the nation when it comes to providing legal defense for the indigent. For years, other communities in the Commonwealth, according to Zimmerman, have suffered the same lack of state funding. The amendment, he added, could gain support from both sides of the aisle when it reaches Richmond.
"Given the fact that there are a whole lot of communities in the state dealing with the same problems, I think we can make the case to Richmond that we do need better funding for public defender's offices, not just in Arlington but all over the state," he said.
THAT SAME 2004 STUDY, compiled by research firm the Spangenberg Group and entitled "A Comprehensive Review of Indigent Defense in Virginia", draws other dire conclusions about the state's system for defending the poor.
"Represented by lawyers who have the most meager of resources, indigent defendants in Virginia are denied the fundamental guarantee of due process, of fairness, in legal proceedings against them," it reads.
It goes on to state that in state courts "substandard practice has become the accepted norm in Virginia's indigent defense system" and described the entire public defense system as "deeply flawed". The report is available on the Internet.
"If one innocent person goes to prison, in my mind that is one too many," said Tejada.
To close the gap in funding and get the office running, Tejada and other members of the board may seek to contribute county funds.
"Because the state is not fulfilling its obligation, we in the county might be smart to consider a temporary supplement," Tejada said.
Since the office has yet to open, Tejada could not say how much county money it might need. But, he added, the longer it takes for the office to open, the higher costs could be.
"We got the approval in October and here we are, in January, and the doors still are not open," he said. "In the long-run, having the office open will lower the county's judicial costs. We'll have fewer people in the jail, for example, so we'll be spending less money to hold them."
The worry Tejada and others on the board have expressed is that the county could find itself paying into the public defender's office indefinitely unless a permanent solution is found.
The short session of the General Assembly begins Jan. 15.