Last January, Richmond, Virginia lawyer and NACDL member Steven D. Benjamin asked an
Henrico County Circuit judge to drop 18 counts of robbery, abduction and murder against his client.
His reason: a conflict of interest created by the way Virginia pays lawyers who defend the poor.
Benjamin's case was far from over, and he had already spent 90.9 hours on it. Because Virginia
would only pay him for 56 of those hours, he argued, and because the case would require many
more hours to resolve, his client was being forced to rely on a lawyer with a clear disincentive to
work hard.
Equivalent of No Representation at All
One third of Virginia's localities have taxpayer-funded public defender offices to provide legal
representation to the poor. The rest rely on private lawyers appointed by the court. Last year,
court-appointed lawyers represented 158,106 defendants. Virginia pays them less than any other
state in the country. As a result, say legal experts, poor people accused of crimes in Virginia get the
worst representation in the country -- often the practical equivalent of no representation at all.
"If we provide an attorney to a poor person, but then don't pay that lawyer enough to thoroughly
represent him, we have effectively taken away the right to counsel even as we pretend to give it,"
says NACDL member Andrew M. Sacks of Norfolk.
Even prosecutors concede the situation is unfair.
"It doesn't give me any satisfaction as a prosecutor and I don't think it serves justice," says
Virginia Beach Commonwealth's Attorney Bob Humphreys.
"What it boils down to is, you get what you pay for. Look who's on a court-appointed list
anywhere. Very few experienced attorneys are on those lists and the reason is, they can't afford to
be on them.
"So you either have very inexperienced attorneys right out of law school for whom any money is
better than no money. Or you have people who are really bad lawyers who can't make a living
except off the court-appointed list," adds Humphreys.
Because the U.S. Supreme Court ruled in Gideon v. Wainwright, 372 U.S. 335 (1963), that those
accused of crimes have a constitutional right to a lawyer, Virginia's system is vulnerable to legal
challenges, experts say. Such challenges, which can invalidate the criminal convictions of those with
badly paid court-appointed lawyers, have been successfully brought in Kansas, Mississippi,
Arkansas, Oklahoma, Florida and Nebraska.
For that reason, increasing the fees paid to court-appointed lawyers is "critical," Virginia
Supreme Court Justice Harry L. Carrico wrote in a letter to then-Governor George F. Allen last
November. Justice Carrico heads the Judicial Council of Virginia, which oversees the state's
judicial system. The Council, along with a special joint legislative committee, the state Committee
on District Courts and the Virginia State Crime Commission, has recommended raising the fees paid
to court-appointed attorneys.
Such recommendations have been ongoing since the mid-1980s, according to Dennis Dohnal, a
Richmond NACDL member who chairs a Virginia bar committee reviewing the bar's code of
professional responsibility.
The fees were raised 15 percent in the 1989/91 state budget, and last year, legislators increased
the fee for serious felonies. That increase, however, is not scheduled to go into effect until July 1,
1998.
Except in capital murder cases, court-appointed lawyers in Virginia are paid a flat fee per
separate charge, regardless of how many hours they invest in any given case.
The maximum fee to represent someone charged with a felony that carries a penalty of less than
20 years in prison, for example, is $265. The fee to represent the same person on 12 counts of the
same felony is also $265.
For felonies with penalties exceeding 20 years -- crimes such as rape and first-degree murder --
the maximum fee is $575 (it will be $845 as of July 1.) [See UPDATE, above] For misdemeanors
tried in circuit court, it is $132. For juvenile and general district court cases, it is $100.
An experienced, privately retained criminal defense lawyer would never dream of working for
so little, according to Andrew Sacks.
"Assuming a single charge without any particularly complicated issues," Sacks charges between
$3500 and $5000 to represent someone facing a felony charge carrying a penalty of less than 20
years in prison. His "ballpark minimum threshold" for a more serious felony (one that carries a
punishment of 20 years or more) is $10,000.
To represent someone on a misdemeanor charge in general district court, Sacks charges between
$1000 and $1500. For misdemeanor appeals in circuit court, he charges between $1500 and $2500.
A bill proposed to the Virginia General Assembly this year would have raised the current fees
paid to court-appointed lawyers by 30 percent. But by the time the legislative session ended March
17, the increase had dwindled to only 15 percent for those representing clients accused of felonies.
In 1999, that number will go up to 20 percent. Despite the changes, Virginia's pay scale will remain
the lowest in the country.
Steven Benjamin's client, Salahundin Webb, confessed to the robbery of a Richmond ice cream
store. The robbery went badly, and Webb's co-defendant allegedly killed the son of a local minister
who worked at the store. When Webb's family heard that a court-appointed lawyer had been
assigned to represent him, they were horrified.
"They insisted that I not get involved because they were going to hire a 'real lawyer,"' remembers
Benjamin. "But they couldn't afford anyone else. They were being quoted fees in excess of $25,000."
Although prosecutors had a strong case against Webb, a psychiatrist had diagnosed him as
psychotic and possibly unfit to stand trial. Also, there was evidence that the police had forced him
to confess. Benjamin was therefore obliged to research and prepare for hearings on both issues.
Webb was convicted by a judge on January 6. He faces multiple life terms. Benjamin estimates
that he spent roughly 150 hours on the case. Under current provisions, he cannot be paid more than
$2520 -- $16.80 an hour.
No lawyer, critics say, can afford to provide effective representation at such rates and stay open
for business. As a result, court-appointed lawyers are forced to choose between their livelihoods
and their indigent clients.
"This is not about me," says Benjamin, "This is not about what court-appointed attorneys are paid. This is about the unfairness of forcing
a poor defendant to be represented by an unpaid attorney."
Money Makes a Difference
Many criminal defense lawyers refuse to take any court-appointed cases. Others must devote most
of their time to their private clients and must budget the time they can afford to devote to indigent
defendants. Some represent their clients as zealously as possible, no matter how much they do or
do not get paid.
For the most part, money makes a difference.
"You can go to court any day in any city and watch for 10 minutes and you'll have a pretty good
idea who the court-appointed attorneys are," says NACDL member David P. Baugh, a Richmond
criminal defense lawyer and former federal prosecutor.
Baugh adds, "Get there about 15 minutes early and see who's meeting their client for the first time
in the hallway outside the courtroom. Look for an absence of motions, an absence of preparation,
a lack of familiarity with the facts. Not every attorney who's like that is court-appointed. But you'll
get a pretty good idea."
Steven Benjamin is not the first Virginia lawyer to challenge this state of affairs. In a case in
1995, Chesapeake attorney Christopher P. Shema asked Norfolk Circuit Court Judge John C.
Morrison Jr. to dismiss drug charges against two clients because "the state demands that counsel
provide representation at a financial loss.
"This . . . creates a powerful disincentive for zealous representation and . . . a conflict of interest
which deprives the defendant of effective assistance of counsel, 'due process and equal protection'
under the law," Shema told the judge.
But the challenge went nowhere. Judge Morrison agreed that Virginia's fees were
"reprehensibly and shamefully low," but dismissed the motion anyway. Only the legislature, he
decided, could do something about it.
Steven Benjamin's motion in the Webb case suffered a similar fate. Undeterred, he made the same
motion on behalf of another indigent defendant scheduled for trial in late January, accused
murderer Roy A. Beverly. As a result of that motion, Henrico Circuit Judge Lee A. Harris removed
Benjamin from Beverly's case five days before his trial was set to begin. But Beverly begged to keep
Benjamin as his lawyer.
"I don't think that it's in my best interest for Mr. Benjamin to step down," he told the judge.
"Mr. Benjamin has been like a brother to me during my whole case and Mr. Benjamin is the one
who has confidence in my case. And to me, Mr. Benjamin is defending me to the best of his ability
and I'm satisfied with Mr. Benjamin and I would like to keep Mr. Benjamin for the trial of my case."
Judge Harris relented.
At Beverly's trial the following week, Benjamin called a witness who linked the murder to
Beverly's wife. After dramatic testimony, prosecutors dismissed all charges against Beverly and
charged his wife instead.
To find the witness who exonerated Beverly, Benjamin says, he had to hire a private investigator
at his own expense, with no assurance of reimbursement from the court. He also had to pay a court
reporter $400 to transcribe a hearing -- an expense the court initially refused to cover.
"If we had not personally incurred these expenses, there is a very real chance that Beverly would
be serving a life sentence," says Benjamin.
He adds, "We were able to incur these costs and we were willing to. But we weren't required
to. And my point is, it's unfair to require defendants to take the chance that the lawyer will be able
to do the minimum necessary to get them a fair trial or to get to the truth."
Not Everyone Agrees
Another Henrico County judge, James E. Kulp, was apparently outraged by Benjamin's first motion
when he read about it in the Richmond newspaper January 11. At a docket hearing the following
day, Judge Kulp announced that any court-appointed lawyer who felt similarly conflicted would be
removed from his or her case and taken off the list from which judges select such lawyers.
One by one, as Benjamin watched, Judge Kulp asked every lawyer the same question: "Do you
feel you have a conflict of interest because of the court-appointed compensation?"
"And of course, they all said no," Benjamin remembers.
"First of all, they had just been threatened with removal from the list. And second, they certainly
weren't expecting the question. And third, they were not being asked in the context of a
constitutional objection that we would all share," says Benjamin.
David Baugh did speak up.
"I said, 'Excuse me, your honor, but isn't it the duty of an attorney to raise a constitutional issue
on behalf of his client?'"
"And the judge said, 'That issue has been raised, it's on appeal and no one else can raise it."'
After that, said Baugh, "it was very uncomfortable in the room. There was a lot of tension. It was
a cross between anger, fear and shock. I'm embarrassed I didn't say more. And I'm embarrassed
that more people didn't say more. It was an obvious manifestation of disdain for indigents' rights."
The next week, Judge Kulp removed Steven Benjamin from two court-appointed cases. January
20, Benjamin took his name off the list of lawyers willing to represent the poor in Henrico County.
[Click Here] for for excerpts
from NACDL's written testimony to the Virginia General Assembly.
