Virginia State Bar

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Criminal Law

A Section of the Virginia State Bar.

THIRTY-FIFTH ANNUAL CRIMINAL LAW SEMINAR 2005

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COMMENTS BY PROFESSOR ROGER D. GROOT

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February 4, 2005

DoubleTree Hotel
Charlottesville, Virginia

CHANDLER and HALASZ, INC.
Registered Professional Reporters
23 P.O. Box 9349
Richmond, Virginia 23227
(804) 730-1222
Reported by: Donna T. Chandler, RPR, RMR, CCR
Certification No. 0313211

PROFESSOR GROOT: Because it's not possible, in my judgment, to speak about that topic in the Commonwealth of Virginia and say anything that sounds very good. In fact, it's almost impossible to say anything good, because you just can't make a silk purse out of a sal's ear. So I hope you will understand that I understand that there are public defenders out there who do absolutely the very best they can with what they have, and that there are appointed counsel who are miserably paid who expend their own resources in time or actual money to provide the best defense they can under the circumstances. I know that, and I'm not, I'm not attacking individuals when I talk about this. I'm talking about systems and institutions. So I don't want to hurt people's feelings. I know I'm going to be talking in many instances about my friends, and I'm not trying to hurt your feelings, because you're caught in a system that is broken. And please understand my remarks in that, in that light.

Now, what I'm not going to do is go into a bunch of detailed data about how much you get for a felony if it's less than 20 years. Most of you know all that stuff. I'm not going to talk about public defenders case loads or work loads or that mysterious, you know, whatever those things mean and whether there's any real impurical data to support one figure or another, because we all know that Virginia is fiftieth out of 50 in its payment for court-appointed counsel. We know that. We've known it for years and years and years. And if you look at the Spangenburg Report and you look in the Appendix A, there are about five pages listing nothing but the prior studies conducted by various agencies; by the General Assembly, by, you know, all kinds of agencies, and they all say the same thing. So these are not secrets. And the detailed information at this point is not even important. We know the public defenders are overloaded with cases. Whether you want to talk about case load or work load or 507 average, it should be 235 felonies, whatever you want to talk about, we know they're overloaded. We know that public defenders on the State scale are paid less than their Commonwealth Attorney counterparts, certain bluster to the contrary notwithstanding.

We know that there are fewer Commonwealth Attorneys -- I mean, fewer public defenders than there are Commonwealth Attorney counterparts, certain bluster to the contrary notwithstanding. And that is, outside from the State salary proposition, it is a matter of local supplements which Commonwealth Attorneys generally receive and public defenders do not receive and, in fact, until recently, have been forbidden from asking for. So there are these fairly gross disparities between the Public Defender offices where they exist and the Commonwealth Attorney's offices in the same jurisdictions. And so those things I think are facts. I think they are well-known. I don't think they are particularly arguable except at the margins, like, should we talk about work load or case load and what do those mean. And I'm not going to go into that kind of detail. I mean, I see it as a fairly simple proposition, and I don't mean to be overly dramatic, but it's 40 years since Gideon against Wainwright. Effective, zealous defense by attorneys for every indigent criminal defendant. What sometimes has been called Gideon's trumpet. Forty years later in Virginia, this is Gideon's trumpet. That's it. It's a party horn.

Now, there are barriers to discussing indigent defense. And as I have gone through this past year working particularly on this issue, two of them come up, and I want to try to knock those two barriers down to the extent I'm able to do it. One is the kind of, I guess, Virginia tradition -- see, I'm a Texan, so I'm not quite as civil as you folks are, not nearly as civil -- that you can't criticize unless you can provide an elegant solution at the same time. When I presented my report -- my report -- my Committee's report to the Virginia Bar Association Board of Governors fell right into that. Oh, we can't send this forward; it doesn't have a complete solution to the problem. Well, that's nonsense. That's nonsense. I mean, my view of what the Virginia -- the Virginia Bar Association is sometimes called the silk stocking bar, a friend of mine calls it the whiskey-drinking bar, and all those things are true. What I wanted, what my vision was, that once those lawyers, none of whom do any criminal work at all, understood the problem, that they would generate sufficient moral outrage to put on their three-piece suits and their pointy-toed shoes and walk down to the General Assembly and say, You people are not doing your job.

But the response was, Oh, God, we can't criticize; we don't have a complete elegant solution. Well, there is no complete elegant solution. The answer is pure and simple money, and I don't have the authority to draft a tax bill. I wouldn't know how to draft one, if I did have the authority, but that's another question. There is this fairly constant theme that gets played out in various fora, that there's really no constituency for criminal defendants, no political constituency for criminal defendants. Well, let me say, and I understand in many ways this is preaching to the choir, that every lawyer ought to be the constituent in question because we all have an obligation to support the Constitution of the United States, and in particular the effective assistance of counsel clause of the Sixth Amendment.

Whether you're a judge, a prosecutor, you do aviation law, personal injury, I don't care what you do, you're a lawyer. This is the constituency, not just the lawyers in this room, but those lawyers that you might occasionally have lunch with, or go to Bar Association meetings with, or whatever that don't do this kind of work, that don't know what's going on in the General District Courts and the Circuit Courts and don't even read the criminal opinions that come out of the Appellate Courts. Every lawyer ought to be concerned about this. Every lawyer ought to be outraged.

And that's the constituency that should be going to the General Assembly and every place else they need to go and saying this is wrong. So until we get past that, oh, well, there's no constituency for criminal defendants, all that's a way of saying we're not going to do anything ourselves. It's not really my problem. Now, I, therefore, think that all of us who have law licenses are complicit in the continuation of this system. And I'll take my licks, and I'll take my licks up front. My colleagues are academic lawyers. And their primary concern seems to me to be what one ex-Supreme Court clerk has most recently e-mailed some other ex-Supreme Court clerk about the state of Justice So-and-So's digestion, or what one of my colleagues calls political science. You know, on my faculty, even among those of us who teach criminal law, if you mention the term baby DUI or simple possession, they don't have any idea what that means. And even more, they don't want to know. So to the extent I represent the academic lawyers, I'll take my licks right now. Okay.

Let me talk about the courts. And when I say "courts," I mean courts in the broadest sense. I mean, not only the appellate courts and the trial courts, but I mean the rules of court, the opinions, the culture of the courts, and the way courts act. And I think the courts are absolutely complicit in maintaining the current system. And I know there are judges who on certain days of the week to ease the burden on the public defenders will have special days when they appoint counsel from the list for indigent defendants. I know there are judges who will announce in advance in certain cases that there will be no jail time so they don't have to appoint counsel to ease the burden. Of course, that just raises the problem of what happens to that defendant when his later conviction becomes a second conviction and he gets an enhanced sentence. But judges continue to appoint under-qualified, unqualified, incompetent and overloaded lawyers. Those are not all -- that's not an overlapping category. And you know you do that. We have the narrowest rules of discovery in the country. Now, an underpaid lawyer who cannot devote time to a case, could do a better job with more discovery than he can do with no discovery. And part of the system of providing inadequate defense is to underpay counsel who cannot spend time on cases and then deny them discovery. Those two things go hand in hand.

Those are inseparable in making the system as bad as it is. And that's easy to change without adding a financial burden. In general, the courts, both trial and appellate, refuse to enforce Brady against Maryland. Underpaid counsel who do not get that exculpatory evidence to which they are constitutionally entitled, necessarily is going to give you a bad system. The system we have of appointment of experts and investigators rather than authorization for the employment of experts and investigators, and then requiring ex parte hearings -- I mean, refusing to provide ex parte hearings has got to go. Every -- well, almost every civilized jurisdiction has -- permits ex parte hearings.

And let me give you some examples of how those two things play out. I will give you two examples from two of my cases. In a capital -- I had an acquittal in a capital case of a defendant who I personally believe absolutely was, in fact, innocent. Because we were able to generate an alibi, and we generated that alibi because it was a capital case and the judge did appoint an investigator for us. I will bet you a red blanket and a silver dollar that if that had not been a capital case, that it had been charged as a first-degree case, we would have been denied that investigator, we would not have had the alibi, and that man would be spending life in prison today. Now, thank God for two things; that he was a capital case, and that the judge appointed the investigator. We would not have gotten that investigator in a first-degree case. And my guy would have been convicted. I'll give you another story. Actually, it's a two-part story. I had a case in far southwest Virginia, capital case, moved for a psychiatrist, to which I think there is no doubt we were absolutely entitled under Ake against Oklahoma. The Commonwealth would not waive the open court hearing. I had to drive four hours each way.

My co-counsel had to drive two hours each way. Two deputies had to drive two hours each way to tote the defendant to court and back. I had to spend the night. All at the expense of the Commonwealth. So the Commonwealth Attorney could stand up and object to the fact that this psychiatrist was from out of state. That was the magnificent issue. Now, that probably cost the Commonwealth in the range of $5,000 so that the Commonwealth could grandstand in a case in which my out-of-state psychiatrist was a heck of a lot closer to the courthouse than even one in Roanoke, where probably the next closest psychiatrist of even remotely the same qualification was, and probably not even there. Now, that's foolishness. That's utter foolishness.

Number One, the Commonwealth ought to have nothing to say about my experts, because all that means is that the Commonwealth gets free discovery of the defense theory of the case, which is supposed to be work product to begin with.

And, Number Two, who appointed the Commonwealth the keeper of the fisk. The judge certainly has that responsibility, but why the Commonwealth? And in that same case, I did -- was able to get the Commonwealth to agree that my co-counsel and I could meet ex parte with the judge to discuss our fee. We went in to do that. The judge said absolutely not.

Called the Commonwealth Attorney to come down and sit in on the discussion of our fee. Now, I really don't see how that's the Commonwealth's business. We've got to have ex parte applications for experts; we've got to have a reasonable standard for the provision of experts; and we've got to have better discovery, and we've got to have better enforcement of Brady. Because all of those things are tied directly together with the insufficient compensation and/or the too big case load, depending on whether you're talking about court-appointed or public defenders.

I raised the question of this Commonwealth Attorney participation in the fee conference with a member of the -- one of the administrative persons at the Judicial Inquiry and Review Committee. He told me the judge was absolutely right; that's exactly what the judge should have done, which surprised me. I thought I was going to get a different answer.

What have the Bar Associations done?

Whether we are talking about this organization, which I will not attack now since I will not attack the hand that has just immediately fed me, or the Virginia Bar Association, or the many other bar associations local, the specialty bars in terms of practice, specialty bars like Old Dominion Bar; what have the Bar Associations done? Pretty much nothing. I mean, I know in the VBA, the Criminal Law Section from time to time sends a very polite letter somewhere and gets a very polite response like this one from the Supreme Court. This is 2001 to the Virginia State Bar President: Thank you for your thoughtful letter regarding compensation of court-appointed attorneys. I appreciate the recommendations and I will ensure that they are considered by the Court in their continuing evaluation of this issue.

Read, kissed off. And, of course, the VBA being the VBA, of course, and being Virginia and being very civil, accepted that and said, Oh, we are going to get serious consideration this time. Yeah, yeah, yeah.

What's the defense bar doing or has it done?

You know, there are a couple of people that can take a lot of credit for standing up for them. Steve Benjamin, obviously. Most of you know the history of Steve Benjamin in this fight, and I commend him for it. Judge Dohnal, until he muzzled himself by moving to high office, was pretty outspoken, and I commend him for that. But most of the rest of us haven't done anything. You know, the Public Defender Commission -- we've now changed, but historically the Public Defender Commission, which was admittedly somewhat in a statutory straitjacket, was also extraordinarily timid. I mean, refusal to even permit its local PD's to seek local supplements is an example of that timidity. When Steve Benjamin stood up in the Webb case in Henrico County and tried to fight the system, where was the rest of the Henrico Bar? Cowering before the wrath of the Court. And then there are the players in the system, the folks that are milking the system. Can a lawyer who maintains a practice which probably has some cases in addition to these adequately serve 234 felonies and 311 misdemeanors in a fiscal year?

In fiscal 2004, one lawyer was paid by the Supreme Court for 234 felonies and 311 other, which is almost all misdemeanors in juvenile cases. Another was paid for 298 felonies and 533 other. And my personal favorite, and, in fact, a former student of mine, was appointed in 1,168 other, that is close to -- let's throw out the 68 as, you know, things other than juvenile or misdemeanor, 1100 misdemeanors. Now, at $112 a pop, you know, that adds up. That's $130,000 or $131,000. But could he adequately represent 1168 misdemeanants and/or juveniles? No.

And, yet, this is -- I happen to know where he practices. It's in a rural area. You're not going to convince me that judges didn't know this. I mean, there aren't that many lawyers and there aren't that many judges. They knew how many times he was being appointed. And it's those players in the system -- I've been through part of this before and had judges say, well, there are lawyers that make a good living doing this. Yeah. Providing good service. No. So part of the defense bar's problem is the players, the folks that are playing the system.

I won't say too much about the Commonwealth Attorneys except to say you folks ought to be as interested in the Sixth Amendment as we are, because bad defense leads to unjust convictions, either unjust because of actual innocence or unjust in the sense of the level of offense. You know, whether the malicious wounding really ought to be an unlawful wounding, or whether the first-degree murder really ought to be a second-degree murder or maybe a voluntary manslaughter. Those are equal injustices.

And if you care about the quality of justice and you care about the Sixth Amendment, the Commonwealth Attorneys ought to be saying something, too.

Now, that's where we have been and where we are today pretty much in my view. I will refer very briefly to capital defense, which is very different, because I want to make a different point from some data.

Capital defense folks, court-appointed capital defense folks, are paid reasonably well as the national standard goes. It's typically now $125 an hour. We still have grossly inadequate experts and investigators and all those associated things. Judges still tend to take the view that, well, since you're being paid so much, you can do it, which is penny wise and pound foolish.

I mean, lawyer as investigator means the investigator is being paid too much for the service and doing a poor job. Investigators are better investigators than lawyers are, and they only cost $50 an hour, at least in my area. So you get two-and-a-half hours of investigator time for every hour of lawyer time, so why do you want to make the lawyers do the investigation? Makes absolutely no sense to me, but it happens in case after case after case. And I got some guys right here from my area who will shake their heads -- you, too, Tony, shake your heads yes. Total control over my audience. But we do pay the attorneys, themselves, pretty well.

Now, I want to make clear what my data set is here. This is fiscal year 2004, attorneys or firms who receive more than a hundred thousand dollars from the Virginia Supreme Court in court-appointed fees. That's the data set. $6,347,919 for 9,995 felony defendants; roughly $63 million -- $6,300,000 for 10,000 felony defendants. And this is only a, you know, counting up the folks who got over a hundred thousand dollars. Of that money, $1,968,155 went for 53 capital defendants. Or to say it another way, 31 percent of that money went to one-half of one percent of the defendants.

Now, in a system that is as bad as ours and as cash strapped as ours, and is spreading so much injustice across the vast range of criminal cases, is it worth spending 31 percent of the available money to try to kill two or three people a year? I mean, that is such a huge drain on an inadequate system that in my mind it makes absolutely no sense at all. And that's, I hope, external to my general abolitionist tendencies. And I used to think it's a total misallocation of resources. Well, there are glimmers of hope. Well, always, one supposes, because some things have happened. The Craig -- the Virginia Indigent Defense Commission was created to replace the old Public Defender Commission, and with much broader authority and much better statutory authority. And I'm going to summarize those -- they are actually more detailed than this, but I'm going to summarize them.

That they have a duty to provide training both for public defenders and court-appointed attorneys. There's actual training for those who are going to be appointed to represent indigent defendants.

To create standards of practice and standards of conduct for those who represent indigent defendants.

To create caseload standards for public defenders. And to report to the General Assembly annually on the, quote, state of indigent defense, close quote, and Virginia's ranking among the 50 states for court-appointed fees. So if we get training -- although, I have got to say this about the training. Of course, once the training standards go into effect, if the fees don't go up, what we have done, especially for --because Bob Shephard is going to tell me I have to talk about the juvenile guys. Okay, Bob. There's extra training if you want to do juveniles as well.

So you have got to leave your practice for the requisite number of hours to go to the CLE and pay for the CLE, and if juvenile, you have got to go even longer, in order to get your inadequate fee when you eventually get appointed. So you're spending more and losing more to earn the same, which wasn't anything to begin with. But if we get the training, if we get standards of practice and standard of conduct, if we get caseload standards for public defenders, and if the report to the General Assembly annually actually has any effect, then we will have moved somewhat.

Now, you know, reporting the ranking among the 50 states for court-appointed fees to the General Assembly is going to be interesting because they know what it is. So presumably Richard Gorman is going to go down there next year and say, Hey, we're still fiftieth, and everybody is going to say, Damn. Now, there's a surprise. Right? So unless that causes something to happen, it's going to be a very interesting exercise, but that's all it's going to be is an exercise.

We have created as part now of the Virginia Indigent Defense Commission the Capital Defender Units, which, if it all works out, ought to have some impact on the quality of capital defense. I will have to say I think that has been a, a system to start up of which has been somewhat difficult. Some of the offices have had and continue to have difficulty staffing themselves, not only with attorneys but with the auxillary personnel, the mitigation investigators especially, because there simply aren't enough. And so those that are out there are so busy and can frankly make substantially more, especially doing federal cases, than they can on the salary that the state is willing to pay mitigation investigators within the Capital Defender Units. So that's an experiment of uncertain future, I think, but it is a glimmer of hope.

The incumbent Chief Justice seems to be really interested in the training aspect of this, and as near as I can tell, to the fee aspect of it as well. You know, I'm not privy to much that happens within the Supreme Court, so I hope I don't misread that. I don't think I do.

The two major bar associations have actually done some things. This organization had its Indigent Defense Task Force, which produced a report, which is very credible. A lot of good people worked on it, worked hard. It's out there. Will it have an effect? We'll see.

Probably the more important thing that this bar association did, or this Bar actually, was Legal Ethics Opinion 1798, August 3rd, '04. I don't know how many of you read it or know about it, and I'm not quite sure what its genesis was. It's quite clear to me its genesis had a political motive. It is -- the question is, Are Commonwealth's Attorneys held to the same ethical requirements as other attorneys? And these inquiries were clearly submitted by Commonwealth's Attorneys, or a Commonwealth's Attorney, I don't know which. And it basically sets out two hypotheticals in which an overworked Assistant Commonwealth's Attorney can't do a good job of representing Commonwealth's interests. And, of course, the Legal Ethics Opinion says that that's an ethical violation to have more cases than you can effectively handle. Now, I suspect this was all done in aid of either trying to get more assistants in some Commonwealth Attorney's office, or trying to get more money out of the General Assembly for some reason associated with Commonwealth Attorney's offices, but I don't know who asked the question.

The interesting thing to me is that Footnote 2 of Legal Ethics Opinion 1798 says, "Although this opinion addresses work loads for prosecutors, excessive case loads for public defenders and court-appointed counsel raise the same ethical problems if each client's case cannot be attended to with reasonable diligence and competence." Okay.

Think back to those figures I gave you for the folks I identified as the folks that play the system. The attorney with 1168 misdemeanors and juvenile cases in fiscal 2004 attend to each one with the requisite amount of diligence and care. I doubt it. I doubt it a lot. And it raises a whole variety of questions. Everything from -- those were all misdemeanors so there is probably not going to be a significant post-conviction activity. It was a flat out constitutional violation, a flat out Strickland violation.

What is the position of the judges who knowingly appointed him that many times? Knowing that that would force him or put him in the position of being in violation of the ethics rule, and, of course, his own ethical difficulties.

But I think that ethics opinion is critically important. I think it's critically important. I think the folks who submitted the question didn't anticipate the footnote, but it, nonetheless, is there. So there's a glimmer of hope.

The press continues to hammer at us.

There was, of course, a huge spate of editorials statewide from really unexpected sources, I thought. I mean, it was virtually every newspaper in the, every daily newspaper in the Commonwealth had an editorial or series of editorials excoriating the indigent defense system.

As of January 31st, the Roanoke Times, "Stingy Court Appointment Fees Limit Access to Justice." Same day, the Virginia Pilot, "Shore Up Defense for Poor in Court." It's still at the forefront of the consciousness of the press, and maybe they will keep our feet to the fire.

In the General Assembly we had House Bill 1596 introduced by frankly one of the very conservative members of the General Assembly, which would have increased the statutory cap on court-appointed fees by 50 percent. That would have raised for those 20-year-to-life felonies, would have raised it from 1235 to 1583 -- 1853. So it would be all the way up to $1850. And, you know, that bill probably faces tough sailing. In fact, somebody told me today they thought it had already been killed.

So that's a glimmer, at least at the policy level. At the policy level, that's a glimmer of hope that somebody has recognized that somebody -- a conservative member of the General Assembly. And I think he would be happy for me to label him that way -- has recognized the problem at least. Although, the remedy is so miniscule, you know, that one can argue it's not even worthwhile.

But because it would -- if the cap becomes 1853, or whatever the figure would be, you would actually at the $90-an-hour nominal rate that the Supreme Court sets, you actually get about 20 hours of lawyer time as opposed to 12.3 hours if you were charged with first-degree murder. So, I mean, that's better.

But let me also suggest to you that I see on the horizon portents of doom. Assuming the statutory cap was raised by 50 percent, we don't pay the statutory cap now. We pay a portion of the statutory cap because the Supreme Court is authorized by statute to reduce the statutory cap to match the appropriation. So the statutory cap is 1235, we pay 1096 for those 20-to-life felonies, unless the appropriation is there. And so long as the Supreme Court's authority to reduce the cap to match the appropriation, we're going to have a statutory cap of 1853 and an actual payment of 1096. So raising the statutory cap in 19.2-163 has absolutely zero effect on the system.

Now, I still say as a statement of policy it may have some importance, but as a statement of what kind of money anybody is actually going to get, it means absolutely nothing. Let me refer also to what I think is a worse portent of doom, Senate Bill No. 1165, which would change the statutory mandate of the Virginia Indigent Defense Commission, only a year old, to remove its authority to set caseload limits for public defenders and to make an annual report about the case loads to the General Assembly, the Crime Commission, and so forth. This introduced by a legislator member of the Virginia Indigent Defense Commission. In other words, the one single most important piece of statutory authority given to the public defender -- I mean, the Virginia Indigent Defender Commission last year is going to be stripped away by a member of the Commission, itself. Which is to say, we don't want change. We don't want anybody to do anything that's going to upset the apple cart.

So with those sad things in mind, my conclusions, the system is terrible; it is a party horn and not Gideon's trumpet. We've had an interesting year in which the two major bar associations have actually looked at this issue, and at least in the case of the Virginia Bar Association, delivered what in its terms is a blistering condemnation, and in realistic terms is kind of tut-tut, but it is after all the Virginia Bar Association, and we'd have to be extraordinarily kind.

Nonetheless, they did something. This Bar has done something. We've had some legislative activity, minor though it is. We've had some press activity. So it's been an interesting year. But when I look at things like Senate Bill 1165, my prediction, business as usual. And it pains me to say that to you. I thought we were actually going to go somewhere. I'm about convinced we're not, and that is my view of the state of indigent defense in Virginia.

Thank you for having me.

 

REPORTER'S CERTIFICATE

I certify the foregoing is a true and correct transcription of an audiotape.

_________________________________________

Donna T. Chandler, RPR, RMR, CCR

Shorthand Reporter



Updated: Monday, October 1, 2007 4:45 PM