09 May 2006

Ineffective Assistance of Court Appointed Counsel?

Tom Spencer, in reference to this post, raises the following question:
"Indigent defendant is accused of a serious felony that is less than murder. Moreover, the case looks sufficiently complicated that any jury trial will take more than three days. Prosecutor makes an offer for a plea bargain that clearly requires thought. Court appointed council advises accepting the offer, but defendant insists on some time to consider the offer. While supposedly considering the offer defendant writes a letter to the judge complaining that since court appointed council's compensation for the trial will clearly be inadequate, council has a conflict that keeps the defendant from trusting council's advice. Therefore, he has been denied effective assistance of council and the judge should do something."

"I am curious to see if anyone reading this thinks that the defendant has a valid argument or one that a court will buy."
Will the court buy this argument? Not the Virginia courts. Per Webb v. Commonwealth there has to be a demonstration of actual prejudice. In that case an appointed indigent defender had worked 30 hours ($2,700 worth of work) more than the maximum number of hours he was going to get paid for when he filed a pretrial motion for dismissal because
(1) the statutory cap on attorneys' fees contained in Code sec. 19.2-163 is unconstitutional,

(2) the compensation allowable under Code sec 19.2-163 is inadequate and operated to deny Webb his right to conflict-free and effective assistance of counsel, and

(3) the statutory compensation scheme causes a conflict of interest because it creates a financial disincentive for a lawyer to effectively represent his or her client.
The appellate court rejects all those arguments. Basically, its reasoning is that there must be proof of ineffective assistance and the attorney in this case was not at all ineffective. He may have put thousands upon thousands of dollars of free work into the case but he didn't abandon his client. You just have to read the case to get the full impact. BTW - The extremely capable defense attorney in that case has joined the ranks of attorneys who refuse to take court appointments.

Does the defendant have a valid argument? The claim that he cannot trust the defense attorney's advice is not valid. It assumes bad faith and unethical behavior on the part of the defense attorney. I spend much of my time interacting with people who make their living doing indigent defense and we talk about our trials. I've never heard, and do not suspect, that any of them tell their clients to plead guilty because of the loss they will incur if the client chooses to go to trial.

However, there is a stronger argument which the defendant could put forward. This argument would be that the defendant feels that he cannot exercise his right to plead not guilty because he believes the low caps will require his attorney to have too great a caseload to be able to give his case adequate attention. Furthermore, the defendant feels even more strongly that he cannot exercise his right to a jury trial because the caseload the caps require the attorney to carry will not allow him devote time adequate to prep and try a multi-day trial.

This is a more valid concern. Fees for a felony in Virginia cap at $428 for a felony which maxes at less than 20 years and $1,186 if the punishment maxes at between 21 years and life (if there is a preliminary hearing the attorney will also get $112 for that); the hourly rate paid is $90 per hour. Let's assume Mr. Smith is charged with felon in possession of a firearm (mandatory 5 years) and kept at the regional jail. Defendant proclaims his innocence and is going to fight the charge to the bitter end and take a jury trial. This means the defense attorney's fees will be capped at $540 (assuming a preliminary hearing). This is 6 hours of work. Assuming that the regional jail is a hour from the lawyer's office (which they all seem to be) two trips to the jail, each with a hour visit (not atypical if prepping for a jury trial), complete the hours for which the defense attorney is getting paid. Anything beyond that - witness interviews, visiting the scene, discovery, meeting with the prosecutor, other jail visits, legal research, filing motions, arguing motions, the trial itself, etc. - is work done without pay.

Meanwhile, the defense attorney's bills continue to come in. He's got to pay rent, phones, secretary, and everything else (not to mention his personal bills). His creditors aren't going to waive their fees because he's required to work without pay. So the court appointed attorney has to take other cases while he is defending Mr. Smith. He continues to churn business. He may not have to make up for every hour he spends on Mr. Smith's case but he does have to make up enough to keep his office open (note that I am not even talking about trying to make a profit). To be fair, it's not entirely about the defense attorney's existence. If his office goes down the drain he's not going to be able to represent anyone so he has to keep churning in order to give anyone representation.

Of course, the problem here is in measuring how much give is caused by the low indigent fee caps. If Mr. Smith is visited 4 times by his attorney while awaiting trial, has he been shorted a 5th or 6th visit? Did the defense attorney do too much triage when deciding what issues to argue in pretrial motions? Did the defense attorney spend 3 hours prepping for the jury trial when he might have spent 6? Or, perhaps did the defense attorney give Mr. Smith's case the full attention it deserves and shift the burden of Mr. Smith's case by spending less time on a myriad of other, "minor" cases because those cases had clients in lesser jeopardy than Mr. Smith?

Of course, every attorney must make decisions as to how much time to spend on each case. No one has the luxury of only having one case to which they can devote all of their time. This makes it almost impossible to determine if actual error exists in a particular case. However, it does point to a system wide error and Mr. Smith has a valid concern when he raises it.


Martin Magnusson said...

It's amazing how adding some figures to the argument really drives the point home! Spending six hours defending a client who is looking at five years of imprisonment seems far below what the "bare minimum" should be...

ACS said...

That is horrendous. Thank goodness public defender offices are growing in VA, but even that is no panacea. It is not even close to effective when clients have to be triaged to such an extent that no work is done on many so that one can be effective on a few.

Any judges who turn a blind eye to this should be ashamed of themselves, the lives of the innocent convicted are on their hands, not ours. All indigent defense attorneys can do is try our best, don't work too hard and burn out, and speak truth to power about the inequalities whenever we can. I often feel bad about overseeing railroad pleas and my own ineffectiveness, but then I think that if we weren't there trying, who would be there to stand with my clients? Nobody. I get plenty of thanks, that and a trial victory now and then (or a reasonable prosecutor dropping a case that never should have been brought) is what sustains me.

Anonymous said...

The unfortunate thing is that the more experienced attorney can best handle 4.7 hours on a felony charge. The new guy will naturally spend the most time. The resulting hourly wage will discourage talented folks from staying to learn. The experienced folks can earn more as retained counsel or move on to domestic relations!

It is a travesty. I question why I continue to work some days. I do try to explain to clients up front that I will NOT be at the jail often, I can do more from my office than sitting holding hands. If they know that up front I think it helps them from feeling ignored.

I used to take collect calls to save the time and gas money. It was helpful. Unfortunately, a few frequent callers ran the bill up to $300 a month and took up most of my assistant's time being nice chatting about their miserable situations. If I could find a way for low cost, limited calls I'd do it. Like an 800 # with clients passcodes so you could take the calls you need, or a three minute limit on each call preset would be great!

Anonymous said...

I think you`ve become jaded and perhaps it`s time you should find another line of work. Remember that there are some people who are being tried for crimes that they are not guilty of but need representation. That`s where you come in. It`s your duty as a lawyer to step up and help those people out without prejudice.

Ken Lammers said...

What prejudice? If anything, this was a plea to allow me to have enough money to avoid any unintentional prejudice to any case.