Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, July 1, 1995 TAG: 9507030060
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
DATELINE: LENGTH: Medium
The attorney general's office has a policy of objecting to certain lawyers being appointed to work on death row appeals. It's a policy designed to deny death row inmates top legal counsel, Zerkin says.
A spokesman for Attorney General Jim Gilmore said the office objects when lawyers there believe an attorney is trying to pick death row cases to make money.
"They pick their cases, their client and then go to the judge and say, 'Pick me,''' said spokesman Don Harrison. "There's no escaping it has an awful lot to do with enormous fees."
Because death row appeals can consume hundreds of hours of attorneys' time, the fees paid by taxpayers to court-appointed lawyers can reach five figures, he said.
The practice of opposing certain attorneys is long-standing and has been used only a "handful" of times, Harrison said.
But the General Assembly was sufficiently concerned about the practice during the last session that it passed a law banning the practice as of today.
"Before that [session of the General Assembly], I had never been aware or heard of lawyers [on one side] objecting to the appointment of counsel for the other side," said Del. Clifton "Chip" Woodrum, D-Roanoke, a member of the Courts and Justice Committee. "Lawyers don't interfere with the other side in a case. That, to me, is improper."
Woodrum said he believes it is up to the judge, not the opposing side, to decide whom to appoint.
The legislative committee unanimously approved an amendment, which Woodrum added to a death-penalty bill, that forbids the attorney general from objecting in such cases.
Zerkin and another attorney alleged such a policy in affidavits filed in the case of Dennis Eaton, a Shenandoah County man on death row. Eaton's attorney sought to have Zerkin appointed as co-counsel. Gilmore's office opposed Zerkin's appointment, and Zerkin said the office has objected to him before.
"In my opinion," Zerkin told a Roanoke federal judge in an affidavit, "the attorney general's opposition in this case, as in others, is based on the fact that I am more experienced and more knowledgeable about capital post-conviction litigation than any other private attorney in the commonwealth."
In a phone interview this week, Zerkin said, "In my opinion, the policy existed specifically to keep two types [of attorneys] from being involved - those with substantial experience in that area and others with substantial resources."
Attorney Stephen Northup, a partner in the large Richmond firm Mays & Valentine, said Assistant Attorney General John McLees called him last winter to say that the attorney general's office planned to object to Northup's being appointed in another death row case.
"He stated that he did not want me to think it was anything personal, but that the office had decided to object to the appointment of 'certain firms' in such cases," Northup said in an affidavit filed in federal court.
Northup was reluctant to discuss his affidavit this week, but said he was "surprised and confused" when McLees called him. He said he had never heard of one side objecting to the lawyer appointed on the other side.
Northup said he agreed with Zerkin's opinion that the policy was designed to give the attorney general's office, which employs lawyers who work extensively on death row cases, the upper hand in such cases.
"That was my take on it," he said. "It could possibly be taken another way. Frankly, I was a little mystified. It caught me by surprise."
Zerkin was so angered by the attorney general's argument that Zerkin's travel time from Richmond to Roanoke would cost taxpayers money that he agreed to donate that time.
"Because I take professional offense at the attorney general's willingness to file such spurious papers opposing my appointment for improper reasons, I am prepared ... to exclude my travel time or the cost of travel and accommodations from any claim for compensation, thereby eliminating any concern that my appointment will adversely impact the taxpayers," he wrote in a court brief.
by CNB