Assembly Nixes Defenders

Assembly Nixes Defenders

Bills to establish public defender’s office in Arlington are delayed until 2005.

It could happen sometime in the next 12 months, said Walter Tejada. A poor defendant, maybe someone who doesn’t speak much English, could be charged with assault.

Without much money, he could end up with one of Arlington’s overworked court-appointed attorneys, and that defendant, who was an innocent bystander when a fight broke out, could end up pleading guilty and spending time in jail.

“The overwhelming evidence we have is that the quality of representation has not been as good as it should be,” said County Board member Tejada. “Low-income residents continue to lack quality representation.”

That has been the driving force behind a push to establish an Arlington office of the public defender, like the Commonwealth’s Attorney’s office funded by the state. Tejada has led the drive at the county level, supporting legislation introduced during this year’s General Assembly session by Arlington legislators Del. Adam Ebbin (D-49) and state Sen. Mary Margaret Whipple (D-31).

Other Northern Virginia jurisdictions, including Alexandria and Fairfax County, already have public defenders’ offices, and about half of Virginia jurisdictions are served by public defenders.

But with the Assembly coming to a delayed end yesterday, that legislation is on ice, delayed until next year. Tejada pointed to hypothetical low-income defendants who are ill-served by court-appointed attorneys as the reason why the Assembly shouldn’t be willing to wait to establish a public defender’s office.

<b>IT MAY NOT</b> be such a catastrophe, said Kim Smith, who last month presented a Civic Federation resolution supporting a public defender’s office to the County Board.

“It’s disappointing that we don’t have authorization” to open a public defender’s office now, she said. “But I don’t want to see us spend a million dollars for an imperfect system.”

Other Virginia jurisdictions with public defender’s offices should be examples to learn from, she said, not to emulate: most have to use a mix of public defenders and court-appointed attorneys, and in some cases defendants are still assigned overworked, underpaid attorneys.

“When we did the Civic Federation resolution, we had conditions above and beyond what appears to be the norm,” said Smith. “We asked that the better systens in the country be implemented here,” with conditions restricting how much training a lawyer must have before becoming a public defender, and what caseloads one lawyer can carry, among others.

<B>ACCORDING TO</b> a 2001 study by the Spangenberg Group, a Massachusetts-based legal think tank, court-appointed attorneys in Virginia received $90 an hour for in-court and out-of-court work. A maximum payment of $1,235 is available for work on cases with a penalty of 20 years or more in jail, or about 14 hours of work. Maximum payment for work on other felony charges is $445, or almost five hours of work, including court time.

Due to funding cuts at the state level, in the last three years maximum fees have effectively been scaled down to $1,096 and $395, respectively. Those maximum fees are also intended to fund any private investigators hired by the defense, or a translator for any out-of-court discussions with the defendant.

By comparison, public defenders elsewhere in Northern Virginia receive entry-level salaries of $39,839, with the appointed public defender (the head of the office,) receiving an annual salary of $112,145.

According to an October report by the state court system, in 2002, the state paid $76.2 million for representation for low-income defendants. Payments to court-appointed attorneys that year rose from $43.7 million to $57.8 million — a 32 percent increase in payments — to represent 227,058 defendants, up 17 percent from the 193,352 represented by court-appointed attorneys in 2001. The average defense fee in 2002 was $176. In the same span, costs to fund Virginia public defenders’ offices stayed steady at $18.6 million.

<b>“THERE’S A SAYING:</b> ‘Justice delayed is justice denied,’” said Tejada. “We’re all after doing justice to justice.” That means for another year, low-income defendants from Arlington and Falls Church must depend on court-appointed attorneys.

Over the last three years, Tejada said, those attorneys have been increasingly overtaxed, with a 45 percent increase in caseloads since 2001. “Many private attorneys do not have the resources,” Tejada said. “They do not have investigators to go to the scene, they may not have a bilingual staff, and that is enormously, critically important.”

<b>IN RICHMOND, JUSTICE</b> is the concern that prompted the delay for four proposed public defender’s offices, said Ebbin. His bill to establish an Arlington public defender passed the House by a wide margin.

But Ebbin’s bill, like Whipple’s, was held on the table in the Senate Finance Committee until the 2005 Assembly session. In the meantime, the committee will establish an indigent public defense commission to consider the quality of legal representation for poor defendants across the state, a commission suggested by Virginia Beach state Sen. Kenneth Stolle (R-8), a Finance committee member and chair of the Senate’s Courts and Justice committee.

The indigent public defense commission would start meeting in July, and could report its findings to the Finance Committee next January, in time to consider Ebbin and Whipple’s bills.

Smith said that report could mean an easier time for a public defender bill next session: it will let lawmakers know what problems low-income defendants face around the state, and how to fix those problems.

In fact, given the support his bill received in the House, Ebbin said he expected success in the next Assembly. “So it’s not over,” he said. “I’m committed to pushing ahead, until we have an office created.”

Like Ebbin, Tejada said he hoped to see the public defender’s bills pass next year. “But if we’re going to do less harm, that would be the second choice,” he said.