Tuesday, September 15, 2015

John Oliver Show on HBO: Public Defenders in America....... What About Public Defenders in Virginia?

September 13, 2015 

The above clip from the John Oliver Show is really worth watching. 

I’ve done some research on Public Defenders in Virginia since first viewing the above. 

In Virginia the appointment of a Public Defender or Court Appointed Lawyer is only permitted in cases in which the accused is facing the possibility of a jail sentence AND is deemed to be indigent. 

Virginia has strict financial guidelines for determining whether someone is eligible to have a Public Defender or Court Appointed Lawyer and those seeking appointed counsel must fill out a financial questionnaire regarding assets, and do so under oath and penalty of perjury. 

Some jurisdictions in Virginia have a Public Defender office and other jurisdictions do not.  Jurisdictions which do not have a Public Defender office have a list of private lawyers who have agreed to be appointed to represent indigent criminal defendants.   

Virginia Public Defender offices are government offices staffed by government employees who are paid by the Commonwealth of Virginia - just like the people working in the Office of the Commonwealth Attorney. Virginia Public Defenders are paid a salary and have the seemingly incomprehensible task of handling essentially every case involving an indigent criminal defendant, regardless of workload.  They simply don't have the option to say they are too busy and can't handle another case.  Instead, they have to take on all the cases that come in and do the best they can to provide the best possible representation.

Private Virginia Court Appointed lawyers are not government employees, but rather lawyers who work in the private sector and have agreed to represent indigent criminal defendants in Virginia for embarrassingly low compensation.  

  1. In Virginia if you have been found guilty OR you take a plea deal of guilt (94%+ of criminal cases in Virginia) the defendant per code (see below), will be billed the cost for the use of the public defender. If you are found not guilty, you do not owe any costs.
  2. In Virginia if you are deaf and indigent and need an interpreter in court, an interpreter will be appointed and it appears per code (see below) the defendant will NOT be billed for the serviced based on a guilty or not guilty outcome.
  3. In Virginia if you do not speak English and are indigent and need an interpreter in court per code (see below), the judge decides if you need an interpreter or not and the cost is paid by the state whether you are found guilty or not guilty. But, in 2015 there was legislation to try and mandate anyone found guilty (including a plea deal) would be required to pay for their English interpreter, that bill failed.
  4. In Virginia per code (see below) if you have been found guilty OR you take a plea deal of guilt the cost of the court recording and transcripts are billed to the defendant.
  5. In Virginia per code (see below) if you if you have been found guilty OR you take a plea deal of guilt the cost of the gathering of medical evidence and any medical tests are billed to the defendant.

§ 19.2-163.           Compensation of court-appointed counsel.
§ 19.2-163.01.     Virginia Indigent Defense Commission established; powers and duties.
§ 19.2-163.01:1.  Supplementing compensation of public defender.
§ 19.2-163.02.     Membership of Indigent Defense Commission; expenses.
§ 19.2-163.03.     Qualifications for court-appointed counsel.
§ 19.2-163.04.     Public Defender offices.
§ 19.2-163.3.       Duties of public defenders.
§ 19.2-163.4.       Inapplicability of §§ 17.1-606 and 19.2-163 where public defender offices established; exception.
§ 19.2-163.4:1.    Repayment of representation costs by convicted persons.
§ 19.2-163.5.       Legal services to public defenders and/or assistant public defenders.
§ 19.2-163.7.       Counsel in capital cases.
§ 19.2-163.8.       List of qualified attorneys.
§ 19.2-164.          Interpreters for non-English-speaking persons (Supreme Court Rule 2:507 derived in part from this section).
§ 19.2-164.1.       Interpreters for the deaf (Supreme Court Rule 2:507 derived in part from this section).
§ 19.2-165.          Recording evidence and incidents of trial in felony cases; cost of recording; cost of transcripts; certified transcript deemed prima facie correct; request for copy of transcript.
§ 19.2-165.1.        Payment of medical fees in certain criminal cases; reimbursement. 

So in the end Virginia passes almost ALL costs onto indigent defendants because they take a plea deal or are found guilt by a judge or jury. 

The 1963 ruling in Gideon v. Wainwright to provide an attorney to anyone who can not afford one means very little in the Commonwealth because that attorney the state is providing will in 94+% of cases will be billed to the indigent defendant, who could afford them before the ruling and now that they are probably sitting in a prison cell, having lost their job and probably their home they REALLY can’t afford them now! Way to go Virginia! 

Mary Devoy