29 December 2015

Indigent Defense In Virginia - Pay

I haven't done indigent defense work in over nine years now, so I can't claim to be the most up to date expert on the nuances anymore. Thus, when a colleague asked me some questions about the manner in which court appointed counsel are paid I had to give an answer qualified by "but I haven't looked at that statutes in at least ten years."  After that discussion, I decided to look and see what the current state of the law is and it has changed significantly since I moved over to prosecution.

To begin with, there are certain (1) requirements. An attorney (a) has to turn in a detailed accounting of his time in the case (b) within 30 days of the completion of the case. After that the attorney is paid as follows:
Court Basic Pay Per Charge 1st Waiver 2nd Waiver
District Adult $120 + $120 Unlimited
District Juvenile (Misdemeanor Analogue) $120 + $120 Unlimited
District Juvenile (Felony Analogue) $120 + $650 Unlimited
Circuit Felony Death Penalty "An amount deemed reasonable by the court" N/A N/A
Circuit Felony more than 20 Years $1235 + $850 Unlimited
Circuit Felony less than 20 Years $445 + $155 Unlimited
Circuit Misdemeanor $158 + $0 Unlimited

Basic Pay Per Charge:

District Courts: In the district courts, (2) it seems clear that (a) the defense attorney is to be fully paid for the first charge. Back when I was practicing, the defense attorney didn't even have to account for his time to get paid for that first charge. However, in 2007 the General Assembly took out the "without a requirement for accounting of time devoted thereto" language and added the "detailed accounting" language, so (b) the defense attorney must now account for his time even on that first count. (3) For charges beyond the first the defense attorney must show that he spent more time in order to get paid. 

FIRST WAIVER: For all cases involving an adult or any case involving a minor in which an adult could be punished with 20 years or less, the trial judge can pay up to another $120.  For a case involving a minor in which an adult could be punished by more than 20 years, the trial judge can pay up to another $650.

Circuit Court: There is (4) no provision for any minimal payment in Circuit Court. However, it is clear that (5) if a charge is reduced to something that would pay less the defense attorney is still entitled to pay under the original pay scale.

 FIRST WAIVER:  For all cases in which the defendant could be punished by more than 20 years, the trial judge can pay up to another $850.  For all cases in which the defendant could be punished by 20 years or less, the trial judge can pay up to another $155. No first waiver on misdemeanors in circuit court.


The second waiver is unlimited. However, it has to get cleared first by the trial judge and then cleared by the chief judge of either the district or circuit.

Reasonable Expenses: There is a paragraph which is often badly misconstrued by courts in paying indigent defenders. It is the paragraph which allows defense attorneys compensation for expenses. I'll quote it here so you can read it yourself:
The circuit or district court shall direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case. Counsel appointed by the court to represent an indigent charged with repeated violations of the same section of the Code of Virginia, with each of such violations arising out of the same incident, occurrence, or transaction, shall be compensated in an amount not to exceed the fee prescribed for the defense of a single charge, if such offenses are tried as part of the same judicial proceeding. The trial judge shall consider any guidelines established by the Supreme Court but shall have the sole discretion to fix the amount of compensation to be paid counsel appointed by the court to defend a felony charge that may be punishable by death.
Basically, this paragraph allows payment for expenses and limits payments in cases wherein the same type of charge is charged multiple times (limited to the amount that would be the fee for one charge).

However, this paragraph has been badly misconstrued by various judges who have used it to limit fees which are charged by indigent counsel. That's a poor reading of the statute. This subsection's purpose is clearly laid out in the opening sentence: "payment of such reasonable expenses." Nothing in the rest of the paragraph indicates a movement away from that purpose. In fact the word "compensate" has a shaded meaning. It could mean being paid for time lost defending the case, but that is a strained reading. Instead, a more regular reading of that language would be that the defense attorney is to be paid back for outlays she has put forth out of her own pocket.

IF THE DEFENDANT DOES NOT SHOW FOR COURT:  If (6) the defendant has (a) a capias (bench warrant) or (b) show cause summons issued, and (7) the defense attorney has appeared in court at least once, then (8) the defense attorney can get paid after the defendant has been missing for a year.

All this and more can be found in Va. Code 19.2-163.

14 December 2015

Where Can I Carry My Firearm

Virginia, is one of those States which believes that there's not just a right to bear arms, but an obligation (at least where I live).  However, there are places and times when a person is forbidden to carry. Generally, these would fall into two areas of prohibition: private and statutory prohibitions.

The first is fairly straight forward. If a private citizen or organization specifically denies you the right to carry a firearm on its property you cannot carry a firearm on their property. The private citizen or organization would have an obligation to notify you that you cannot carry a firearm on its property, but as a non-governmental entity it has the right to restrict entry. If the private entity posts a "No Firearms Allowed" sign then it has effectively put up a no trespassing sign per Virginia Code 18.2-119. A person who walks into a store or residence past that sign knows she is specifically denied permission to be on the premises with a firearm. Then it simply becomes a matter of status. If her status is that of someone with a firearm she is in a location she is forbidden to be in. Therefore, she is trespassing.

And, before anyone starts screaming 2d Amendment at me in the comments, remember this is an interaction between a citizen and a private entity. The 2d Amendment only applies in dealings between a citizen and the government.

Statutorily, the General Assembly has passed several laws in Virginia which restrict where firearms can be carried. As these impinge on a right guaranteed in the Bill of Rights these should be subject to a strict scrutiny standard. However, the US Supreme Court has flinched away from explicitly stating that this is the standard. In fact, it has created some sort of weird, hybrid standard where citizens are entitled to own and use firearms (1) "in common use" at a set period of time, but only if the citizen does not fall into a certain (2) status (e.g. felon or mentally ill) or possess them in a (3) sensitive place (e.g. schools or government buildings). See District of Columbia v. Heller, 554 U.S. 570 (2008). I'm not going to address the first two parts of this test today; instead, I am going to mostly look at those places the Virginia General Assembly has declared by statute to be "sensitive."

A quick survey reveals the following statutes:


18.2-283.1 - It is a class 1 misdemeanor (up to 12 months) for anyone except law enforcement (and the local treasurer?) to carry a firearm in the courthouse. - This makes sense in that there is a lot of emotional conflict in a courthouse and (perhaps most importantly) there is a constant possibility of an armed attempt to free an incarcerated inmate from a known location at a known time.


18.2-308.1 - It is a class 1 misdemeanor (up to 12 months) to carry a firearm onto school grounds, a school bus, or a place where an extracurricular event is occurring. It is a felony with 5 mandatory years in prison if someone takes a firearm into a school building with intent to use it. - Hard to argue that a school isn't a sensitive place from which firearms should not be excluded.

Place of Worship:

18.2-283 - It is a class 4 misdemeanor ($250 fine) to carry a firearm "without good and sufficient reason" into a place of worship while a religious meeting is taking place. - Hmmm. Yes, this is a sensitive place, but also a private place. It seems to me that this should be something that should be decided by whomever makes decisions for a particular place of worship and handled under the trespass rules as laid out above.


18.2-308(J3) - It is a class 2 misdemeanor (up to 6 months) to carry a concealed weapon in a place that serves alcohol if you drink any. - This is actually a mix of location and activity. It does not seem to fit the "sensitive place" restriction particularly well and perhaps is more of a status restriction (person drinking alcohol). It also does not forbid a person openly carrying from having a firearm in a place that serves alcohol.

Airport Terminal

18.2-287.01 - It is a class 1 misdemeanor (up to 12 months) to carry anything which expels a projectile in an airport terminal. - This is obviously both a public and sensitive space.

Certain Cities:

18.2-287.4 - It is a class 1 misdemeanor in public areas in the (a) cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, and Virginia Beach and in the counties of Arlington, Fairfax, Henrico, Loudoun, and Prince William to carry a (b) rifle or (c) pistol with a magazine of more than 20 rounds and a (d) shotgun which holds more than 7 rounds of its longest round. - This is a mix of the sensitive place element and the common use element. It's hard to argue that all the public areas excluded are sensitive places, so this is really more of a declaration that these firearms cannot be carried because they are not in common use. The problem with that logic is that the firearms are not forbidden everywhere.

These are all the location related bans I found. It is not an exhaustive list of limits on firearm possession and I suspect there may be some more location restrictions squirreled away in parts of the Code outside of Title 18.2 (Virginia's criminal law).