§ 19.2-163.7. Counsel in capital cases Shall doesn't mean Shan't unless it means Should

I was speaking to another lawyer about the appointment of counsel for those accused of capital murder and he pointed out to me the statutory requirement that each and every person accused of capital murder is entitled to representation by an attorney from the the Virginia Capital Defenders office. His question was what would happen in cases where there are co-defendants? The capital defenders office would be conflicted out of all but one defendant. What would be done about the statutorily mandated appointment of someone from that office for the other co-defendants? It seemed to him that the statute gave them a right which they would have to be denied.

I was curious about this so I looked up the statute.

In any case in which an indigent defendant is charged with a capital offense, the judge of the circuit court, upon request for the appointment of counsel, shall appoint at least two attorneys from the list or lists established by the Supreme Court and the Indigent Defense Commission or as provided in subsection C of § 19.2-163.8 to represent the defendant at trial and, if the defendant is sentenced to death, on appeal. In all cases where counsel is appointed under this section after July 1, 2004, one of the attorneys appointed SHALL be from a capital defense unit maintained by the Indigent Defense Commission.

So, it seems that it is mandated that every person charged with a capital offense is required to have an attorney from the capital defender office.

However, the word "shall" under Virginia case law doesn't quite mean what you think it means. If it's a jurisdictional statute it's mandatory; if it's procedural it's directory. See Karim v. Commonwealth, 22 Va.App. 767 (1996). What this basically boils down to is that judges aren't required to follow any statutorily required procedure just because the statute states the judge "shall" do it. "[T]he words 'shall' and 'may' are used interchangeably at times and 'shall' is often interpreted to be directory in meaning." Huffman, Warren, & McAleer v. Kite, 198 Va. 196 (1956). This has been a part of interpretation of Virginia procedural statutes for a long time. See Watson v. Coles, 170 Va. 141 (1938)(the requirement that a jury pool "shall" be selected 10 days before trial is merely procedural and therefore failure to comply is not reversible error).

Yes, I know. It doesn't seem to make sense. However, when I look up shall online at Merriam-Webster, it also lists as an archaic definition of shall as "will be able to: can." And everybody knows we lawyers love those archaic definitions.

I don't see anything in that statute which is jurisdictional. Therefore, the "shall" in it is merely directory. With this in mind, let's look at the statute with the actual meaning substituted in.

In any case in which an indigent defendant is charged with a capital offense, the judge of the circuit court, upon request for the appointment of counsel, shall appoint at least two attorneys from the list or lists established by the Supreme Court and the Indigent Defense Commission or as provided in subsection C of § 19.2-163.8 to represent the defendant at trial and, if the defendant is sentenced to death, on appeal. In all cases where counsel is appointed under this section after July 1, 2004, one of the attorneys appointed MAY / WILL BE ABLE TO / CAN be from a capital defense unit maintained by the Indigent Defense Commission.

So, if there is a second defendant, the fact that he can't get representation from the capital defenders office doesn't really deprive him of anything he's entitled to.