New Indigent Micromanagement Guidelines

You'll recall when the Virginia General Assembly added the Virginia Indigent Defense Commission rather than adequately fund indigent defense that I said it would add a level of bureaucracy which would only exasperate the problems in the system instead of solving them (bureaucracies must justify their existence).

Well, Ladies and Gentlemen, I give you exhibit "A": STANDARDS OF PRACTICE FOR INDIGENT DEFENSE COUNSEL

This is an amazing piece of micromanagement. It's not a set of standards or aspirational ideals or anything else; it is micromanagement of every moment of any attorney who agrees to take court appointed cases. Don't believe me? Well, here's the section on the initial meeting with the client:

Standard 2.2 Initial Interview

(a) Preparation for the Initial Interview:
Prior to conducting the initial interview, where possible, counsel should:
(1) Be familiar with the elements of the offense and the potential punishment, where the charges against the client are already known;
(2) Obtain copies of any reasonably available relevant documents, including copies of any charging documents, pretrial release services agencies' recommendations and reports concerning pretrial release, and law enforcement reports;
(3) Be familiar with the legal criteria for determining pretrial release and the protocol in setting those conditions;
(4) Be familiar with the different types of pretrial release conditions the court may set and whether private or public agencies can act as a monitor during the client's release;
(5) Be familiar with any procedures available for reviewing the trial judgeÂ?s decision regarding bail.

(b) The Interview:
(1) The purpose of the initial interview is both to acquire information from the client concerning pretrial release and also to provide the client with information concerning the case. Counsel should interview the client in an environment that protects the attorney-client privilege. Counsel should remove at this, and at all successive interviews and proceedings, barriers to communication, such as differences in language or literacy.
(2) In appropriate cases, counsel should pursue the appointment of interpretive services to assist with communication.
(3) Information counsel should acquire includes, but is not limited to:
(A) The clientÂ?s ties to the community, including the length of time he or she has lived at the current and former addresses, current contact information, family relationships, immigration status (if applicable), employment record and history, date of birth, and social security number;
(B) The client's physical and mental health, educational and armed services records;
(C) The client's immediate medical needs, including chemical dependency treatment;
(D) The client's past criminal record, if any, including adult criminal convictions and juvenile adjudications and prior record of court appearances or failure to appear in court; counsel should also determine whether the client has any pending charges, whether the client is on probation or parole, and the clientÂ?s past or present performance under supervision;
(E) The ability of the client to meet any financial conditions of release;
(F) The names of individuals or other sources that counsel can contact to verify the clientÂ?s provided information (counsel should consult with the client before contacting these individuals);
(G) And other such information necessary to determine potential exposure under the sentencing guidelines;
(H) Any necessary information waivers or releases that will assist the clientÂ?s defense.
(4) Information counsel should provide to the client includes, but is not limited to:
(A) An explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the counsel;
(B) Warning the client of the dangers related to the search of the clientÂ?s cell and personal belongings while in custody, and that jail officials may monitor telephone calls, mail, and visitations;
(C) An explanation of the procedures that will be followed in setting the conditions of pretrial release and the consequences of violating any condition of bond or protective orders relative to the case;
(D) An explanation of the type of information that a pretrial release agency will request in any interview, and an explanation that the client should not make statements concerning the offense;
(E) The charges and the potential penalties;
(F) A general procedural overview of the anticipated progression of the case;
(G) The names of any other persons who may contact the client on counselÂ?s behalf;
(H) Explaining the importance of maintaining contact with counsel, and notifying counsel of any changes to the client's address.

(c) Supplemental Information:
Whenever possible, counsel should use the initial interview to gather additional information relevant to defense preparation. Such information may include, but is not limited to:
(1) The facts surrounding the charges against the client;
(2) The clientÂ?s version of arrest, with or without warrant, including whether the police searched the client and if they seized anything; whether the police interrogated the client, and, if so, whether the client gave a statement; the clientÂ?s physical and mental status at the time of any statement; whether arresting officers provided any exemplars, and whether officers performed any scientific tests on the clientÂ?s body or bodily fluids;
(3) Any co-defendantÂ?s name and custodial status;
(4) Any evidence of improper police investigative practices or prosecutorial conduct which affects the clientÂ?s rights;
(5) Any possible witnesses who should be located;
(6) Any evidence that should be preserved;
(7) Where appropriate, evidence of the clientÂ?s competence to stand trial and/or mental state at the time of the offense, including the clientÂ?s releases for any records for mental health treatment or testing for mental retardation.

And it's not the only section like that - the whole thing is filled with checklists. Basically, it's a setup. Anyone who has done indigent defense (or any kind of defense for that matter) knows what questions to ask in each particular interview, what papers to file in each case, and what procedure applies in the courts wherein he practices. However, with the advent of this series of checklists it becomes impossible to properly defend your client; you will always be in violation of a number of items on the checklist. Don't warn your seemingly intelligent, frequent-flyer client jail phones are monitored? Violation of 2.2(b)(4)(B). Don't ask your client about his military record? Violation of 2.2(b)(3)(B). Don't ask if your obviously withdrawing client is withdrawing (knowing that he can choose from the jail's wide panoply of treatment for withdrawal including cold turkey, cold turkey, and cold turkey)? Violation of 2.2(b)(3)(C).

Everyone who practices indigent criminal defense will have to develop and give out much, much more detailed versions of the two CYA letters I have on the right hand column. And they probably will still spend the entire time they are defending indigents in violation of large numbers of sub-sections of this document. No one with any common sense will even glance at this document as they defend misdemeanants.

Why was this document propagated? To understand that you have to understand an undercurrent in Virginia criminal defense circles. There are a number of lawyers in Virginia who think that Virginia criminal defense attorneys should stop taking indigent cases because they pay so little; basically, they want Virginia defense attorneys to go on strike. True believers who have been preaching this for years, they have not been able to get other attorneys to follow their lead. They believe that ratcheting things up like this will make it impossible for people to continue to represent the indigent at rates which will allow them to keep their doors open.

Standard 1.3 General Duties of Defense Counsel
(a) Before agreeing to act as counsel or accepting court appointment, counsel has an obligation to make sure that counsel has sufficient time, resources, knowledge, and experience to offer quality representation to a defendant in a particular matter. If counsel later discovers that counsel cannot provide quality representation, counsel should move to withdraw.

At the very least they will now be able to list the gazillion specified requirements which court appointed attorneys are not fulfilling. This, of course, will finally force the General Assembly to realize the error of its ways and pay appropriate rates. Yeah, right, and I've got some bottom land for sale to anyone who believes it'll work.¹

We've already seen one thing the Virginia Indigent Defense Commission did start to fail. The commission set out initial standards which everyone must fulfill to start doing indigent defense including (for felonies) prior representation of four felony cases from the general district court all the way through the appellate process and thereafter the attendance at 6 hours of criminal law CLE's every two years. If you've practiced anywhere outside of a metro area you've seen judges finesse or ignore these rules because to do otherwise would mean they didn't have enough lawyers for the defendants. Now we get to see an unaccomplishable set of checklists set in place which will have to be ignored and will lead to all sorts of fun with clients who will be able to file 100 page habeases listing all the subsections defense counsel didn't fulfill.

Wonderful. Just wonderful. Great job guys.




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¹ Mind you, there are serious problems with the fee caps which need to be fixed. In particular, felonies with mandatory time and any case which goes to a jury needs to have a higher cap. Adopting a system like the feds would probably be a good answer for these things - capping pay for all charges at $2,500 (with upward exceptions per judge's discretion) and requiring the attorney to justify his time via a time sheet.

And then there's the yelling . . .

As a new lawyer at the Wise County Commonwealth Attorney's office I got my choices of where I wanted my office to be. I could set up shop in the stairwell, the hallway, a supply cabinet or the room across from the courtroom which used to be the smoking room. While the stairwell was tempting (it is, hands down, the quietest place I've found in the courthouse), I chose the office across from the circuit courtroom.

Actually, it isn't bad at all. It hasn't been the smoking room for a while and the court's maintenance people have done a pretty bang-up job of getting rid of the odors (replaced the carpet and painted everything over). So that's not been an issue. And I personalized the office. In fact, I thought I'd done a pretty good job of it until the lady who came to the office just before me (as the general district court prosecutor) was given an office which was in terrible shape and in very short order transformed it into something which looks like she had a professional decorator come in and make it over. I'm just not capable of that level of decorativeness.

Anyway, I've settled in and I'm happy with my office. I've only got two real complaints. First, my back wall is on the other side from the ladies' room and on the odd occasion I can hear toilets flushing (although not usually and I'm not sure what weird law of sound conductivity is responsible for that). The second and most annoying is the fact that my room is next to the room defense attorneys meet their clients in and the wall between ain't exactly thick.

Most of the time that plays out as me hearing things that sound like the adults in the old Charlie Brown cartoons: "Mmwaa mmwawawa" "Wawa" "Mwawawa". However, every so often someone insists on talking loudly and I can hear everything as clear as a bell. Obviously, this is a problem. At first, I would leave my office, but that is impractical - I have to be in my office to do all the paperwork pre and post trial. So, I started making sure I had music and podcasts on my computer or my Creative Zen player and usually have something playing in the background; if I don't have it going it's only a couple clicks away when I hear someone in the next room. I also starting spreading the word to defense attorneys so they'd know to keep their voices down.

However, not everyone seems to have gotten the word. I was sitting in my office a while back and had the music on when suddenly I hear a defense attorney in the room next door yell " . . . 72 years! You're facing 72 years! WHAT PART OF 72 YEARS DON'T YOU UNDERSTAND!?! You need to take the 6 months . . ." At this point I reached the speakers and cranked the sound up so I couldn't hear any more of the conversation - and immediately fell down, ROFL. It's good to know that I'm not the only person who's had that conversation (although, thankfully, I don't have to have them anymore).

Vindication

I shoulda never posted an entry - now I keep getting drawn back in. I swear blogging is as addictive as crack.

Anyway, Monday I had a jury trial. During jury selection my first three peremptory strikes were pretty easy. Two had been previously represented by the defense attorney and one was just an absolute disaster who looked like she might actually appear on the docket as a defendant herself any day now. But I really didn't have any solid reason to pick anyone for the fourth strike. So I sit there and look over the jury pool. There's something about juror number 18 which bugs me. I can't figure it out and I dang sure couldn't verbalize why but I don't feel like he'll be a good juror. Still, I like to have solid reasons for striking someone so I look around at the other jurors and try to find someone, anyone whom I believe I have some reason to strike. I can't find anyone so I semi-reluctantly strike juror 18.

On Wednesday I'm in court again and the judge and I are discussing the case. Suddenly the deputy pipes up: "Judge, I think we're going to have to excuse a member of the jury pool from future service. I saw him getting arrested yesterday by the State Police." Which juror was it? Number 18.

Discovering Your Place in the World

We all have business cards here at the office so that officers and members of the public can take them when they wander into our reception area and decide they need to be able to contact one of us. Periodically someone has to get into the boxes where they are stored and replenish the supply which is set out in the lobby. A couple days back I was looking for something in the supply cabinet when I made a disturbing discovery. Apparently my cards are in the least demand since they are on the bottom of the stack of boxes:



Gonna have to work on my popularity a bit.

Judge Chad

Well, I didn't know where else to put this, so I thought I'd reopen CrimLaw for this announcement.

Chad Dotson has now officially been made a general district court judge by the General Assembly. Chad, the author of the highly popular Commonwealth Conservative was offered the position in December and in early January interviewed for the job. He will begin in early February and, because he cannot hear any cases which began while he was Commonwealth Attorney, he will have to spend a few months sitting in other counties, but eventually it is believed he will sit in Wise County.

Chad's an excellent choice and will serve in the position well. He's a graduate of both UVa and Georgetown Law who chose to go back to Southwest Virginia to be near family and in fairly quick order became the Commonwealth Attorney. While serving as Commonwealth Attorney his blog raised him to the status of a pretty big dog in Republican circles and his political future looked promising. Yet, when given a choice which would allow him to concentrate on being with his family while his children grow up and providing them a stable environment he took that option. It was a great choice for Chad.

On the other hand, IMHO, it was a stupid choice for the RPV. Instead of grooming a young member of the party to move forward and take an important role in the party they have removed him from the political scene. It was obvious that Chad could have been (and was becoming) a big voice locally and Commonwealth-wide among certain sectors. It was not hard to conceive him as a solid candidate for AG (maybe not this coming election but probably the one after it). All I can do is look at the choice and wonder what the party elders were thinking.

Anyway, to quash a few rumors - there was no long standing agreement to make Chad a judge. There were longstanding rumors in the courthouse that it was going to happen, but if Chad had a standing agreement he was pretty dang good at masking it with a frustrated look as I watched him explain for the umpteenth time to yet another person who asked that he didn't know anything about any offer. The blog went down because he was getting ready to start his next election campaign. For reasons I cannot disclose (I do, after all, work in the Wise Commonwealth's office) I believe that he was preparing for his next campaign and was looking to his future. However, the offer to become a judge trumped that.

Of course, there was that wonderful hit piece in the Richmond TD shortly before Chad's interview which basically said that Chad was only getting this opportunity because he did yeoman's work for the RPV in his blog. Why would a young Commonwealth Attorney get offered the district court judgeship if that wasn't the reason? How about because he was the best candidate? And who does the author think becomes a district court judge? It isn't the fourth term Commonwealth who is so ensconced in his position that he has become a local icon and will never, ever be voted out of office. It isn't a whole lot of capable private practitioners who are earning far too much money (even in pitiful, old, dirt-poor Southwest Virginia - always love that unbiased outside perspective). First and second term Commonwealths are par for the course; they are not great exceptions. Besides which, I don't think the blog brought Chad to the attention of the local RPV hierarchy which recommended him for the job. They already knew that Chad was capable and worthy of this.

Chad's heir apparent is Ron Elkins who has been his Chief Deputy and drug-enforcement guy since he's been here. Ron's a good guy who does an excellent job; he'll make an estimable Commonwealth. Congrats to him as well (Hi Ron!). The only thing is, I feel sorry for him now that all Chad's paperwork will end up piled on his desk. I guess that with great power comes great responsibility (and loads of paperwork).

Oh, and I guess the office will have to hire a new attorney as well. If you're a better attorney than I am (and judging from the womping I took yesterday in a jury trial that shouldn't be too hard) you ought to check into it. Preference to graduates from Yale, Harvard, Chicago, Stanford, Melbourne, or Auckland who are willing to self move to the SW Va. area and sign a ten year exclusive contract. I'm sure Ron will consider others as well, but I might as well start out by seeing if we can mine some sort of wunderkind out of the legal herd.