THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, April 12, 1995 TAG: 9504120408
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JUNE ARNEY AND JOE JACKSON, STAFF WRITERS
DATELINE: NORFOLK LENGTH: Long : 137 lines
A Chesapeake attorney will ask a judge today to declare the state's system for paying court-appointed attorneys unconstitutional, claiming it jeopardizes effective legal representation for poor defendants.
Christopher P. Shema bases his argument on statistics showing that Virginia ranks lowest in the country for the maximum limit, or ``cap,'' that state law allows court-appointed lawyers to be paid.
The issue isn't simply one of a drain on lawyers' pocketbooks, but is also one of the quality of justice meted out to indigent defendants. A recent study by the state Supreme Court said that poor people may not be receiving adequate defenses because lawyers' low pay encourages them to scrimp on ``reasonable and prudent expenses,'' including investigations into defendants' guilt or innocence.
Local attorneys say they recognize the temptation.
``I'd like to believe as professionals that none of us would put our interests above a client's,'' said Fay Spence, who has a full-time salaried position as an attorney and does not rely on the income from her defense practice.
``But it's easy to take a plea bargain, even lean on a client to take a plea bargain, if you've already put in more time than your case is worth.''
Shema concurred, writing in his motion, ``It is impossible for court-appointed attorneys to avoid conflicts of interest with the clients they are entrusted to represent, as they must choose whether to protect their clients or their own economic survival.''
In Juvenile and General District courts, a Virginia lawyer receives a maximum of $100 to defend a case. In Circuit Court, $575 is the maximum paid in non-capital felony cases punishable by 20 years to life, $265 in other felonies. The cap on misdemeanors, punishable by jail time, that are tried in Circuit Court is $132.
Shema has asked Judge John C. Morrison Jr. to dismiss drug charges against two clients or to delay their trials pending restructuring of the state's fee schedule for court-appointed attorneys.
``The state demands that counsel provide representation at a financial loss,'' he wrote. ``This . . . creates a powerful disincentive for zealous representation and . . . creates a conflict of interest which deprives the defendant of effective assistance of counsel, due process and equal protection'' under the law.
In one case, Louis Russell Brown is charged with possession with intent to distribute heroin, punishable by up to 40 years in prison. Shema estimated in court papers that he had spent 26 hours on the case - 11 in court and 15 working out of court.
In the other, Jeffrey Dwayne Charity is charged with possession of cocaine and faces a possible term of life in prison. Shema estimated that he had invested 12 hours in court and 20 hours out of court.
In each case, Shema can be reimbursed a maximum of $575.
Prosecutors in March filed papers asking that Shema be disqualified in those cases based on the conflict of interest he cited in his own motions.
Shema originally filed motions asking for a dismissal or stay of a sodomy charge against an 11-year-old client on the grounds that he - Shema - was being paid a maximum of $100 for his representation in Juvenile Court. But that case will not be heard today. Shema said he could not explain further.
He wrote that he was appointed to represent the youth on Oct. 26, 1994, and has spent two hours in court and three hours out of court on the case. He anticipated needing an additional eight hours in court and five more out of court.
Even though the juvenile case is not being heard, the judge's ruling regarding the two adult cases could have an impact on it, Shema said.
To bolster his case today, Shema will use the 1995 state report, which documents that in the last decade, Virginia's fee structure for paying lawyers who represent indigent defendants has sunk from among the lowest in the nation to the lowest.
``Sooner or later even Atlas shrugs,'' he wrote in court papers. ``A lawyer that zealously and competently represents the indigent accused is absolutely essential to achieve justice and a meaningful search for truth. To deprive that lawyer of adequate compensation for his or her service in the pursuit of justice is to attack liberty and justice for all.''
Faye Spence, the attorney who has the full-time salaried job with Nationwide Insurance, has handled court-appointed cases for the past eight years.
``If I were dependent on my criminal practice income to support myself, I'd be starving,'' she said. This situation allows her the freedom to take on court-appointed cases without concern for the low fees, she said.
Spence cited the case of a woman charged with forgery several years ago. Spence devoted 62 1/2 hours to that case and won an acquittal when a handwriting expert found that the handwriting was not the woman's. Based on a rate of $40 per hour, she would have received $2,500. However, Spence was paid a maximum of $265.
Spence worries that the danger in juvenile cases is even more serious. In those cases, there is an even greater likelihood that an unethical attorney might put in a minimal effort, she said, knowing that juvenile records are not permanent.
Ultimately, Spence said, her greatest fear is that competent attorneys will stop taking cases. ``There are people who are innocent, and the thought of them not getting good representation is scary,'' she said.
The issue of low pay for court-appointed lawyers has been the subject of state study since the early 1970s, documents show. A 1974 study by the state bar first recognized the inadequacy of indigent defense and set up a pilot program for public defenders' offices to try to correct the problem.
Today, 19 public defenders' offices serve 44 localities in the state. Other jurisdictions are served by court-appointed attorneys. State records showed that, in 1993-94, 65 percent of the state's poor defendants were represented by court-appointed attorneys, the rest by public defenders.
Thirteen state-funded studies from 1974 to 1994 showed that Virginia's pay for court-appointed lawyers was among the lowest in the nation. The fee has changed little over the past two decades, despite several attempts by the General Assembly to increase it. From 1973 to 1994, the juvenile cap increased from $75 to $100. During the same period, the cap for the most serious felonies increased from $400 to $575.
At the same time, criminal caseloads increased, placing heavier demands on the indigent defense system. A 1993 report by the American Bar Association showed that arrests across the nation for drugs offenses increased 245 percent between 1985 and 1993, compared to a 19 percent increase for all non-drug cases. In Virginia, arrests for drug-related offenses rose from 12,348 in 1985 to 20,251 in 1993, a 64 percent increase, state police records show.
Although the supreme courts of several states ruled their caps were unconstitutional during the 1980s and 1990s, Virginia's challenges to the system have not fared as well. In October 1986, Alexandria attorney Kenneth E. Labowitz filed a lawsuit in federal court that was similar to Shema's motion.
Labowitz unsuccessfully argued that court-appointed fees were so low that poor defendants were denied their constitutional rights to competent legal counsel. He argued that the Virginia pay scale encouraged a dual system of justice, with one standard for the rich and another for the poor.
``Is the issue dead?'' Labowitz asked after his case was dismissed by a federal judge. ``Not as long as there are poor criminals in Virginia.'' ILLUSTRATION: Staff graphic by John Corbitt
Total paid by state
Maximum amounts that states pay court-appointed lawyers for
non-capital felonies(highest to lowest, including Washington D.C.)
State...Max. amount
For copy of Graphic, see microfilm.
KEYWORDS: ATTORNEY LAWYER FEES LAWSUIT PUBLIC DEFENDER by CNB