5/09/2006
Ineffective Assistance of Court Appointed Counsel?
"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."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
"I am curious to see if anyone reading this thinks that the defendant has a valid argument or one that a court will buy."
(1) the statutory cap on attorneys' fees contained in Code sec. 19.2-163 is unconstitutional,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.
(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.
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.
Ken Lammers . . . Permalink . . . 5 comments 5 Comments:
Martin Magnusson said on May 09, 2006
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 on May 10, 2006
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.
said on May 14, 2006
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!
said on January 07, 2009
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 on January 07, 2009
What prejudice? If anything, this was a plea to allow me to have enough money to avoid any unintentional prejudice to any case.
Post a Comment
Chapters 1 - 13
- LAWS
- Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
- Aggravated Malicious Wounding
- The Moped Exception
- Rape by Lie: 1 ~ 2 ~ 3
- No Intent Needed
- Arresting in a House
- Common Law Trespass
- Certificate of Analysis Introduction
- Probable Cause: Car Passengers
- Obstruction of Justice Limited
- Stealing Electronic Items
- Stolen Value: Price Tags
- Stolen Value: No Price Tags
- Stolen Value: Electronic Items
- No Weekend Jail on Felonies
- Obstruction of Justice Limited
- No Trifurcation
- No More Beer at the Barbeque
- Respondeat Superior
- DUI & Reckless Driving
- Can You Steal From the Dead?
- Outlawry Outlawed
- Felony 2d Degree Murder
- Banishment
- Computer Fraud
- Insta-Deputy
- PROCEDURE
- Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
- Invoking Right to Attorney in Virginia
- Who Prosecutes Misdemeanors?
- Expungement
- Surrebuttal
- Virginia's Reasonable Doubt
- Reasonable Doubt II
- Instruction: Right to Arm
- Virginia Castle Doctrine1 ~ 2 ~ 3 ~
- Dismissed with Prejudice
- SENTENCING
- I. Limitations on Right of Judge to Alter a Sentence
- II. Limitations on Right of Judge to Alter a Sentence
- III. Limitations on Right of Judge to Alter a Sentence
- Probation & Suspended Time
- Advisement in Virginia
- Jury v. Judge (sentencing roles)
- Limits on Evidence Presentable to a Jury
- Jury Sentencing Possibilities
- &CETERA
- Witnesses & Writ of Actual Innocence
- Domestic Battery & Firearm Possession
- Domestic Battery & Testimony I
- Domestic Battery & Testimony II
- Domestic Battery & Testimony III
- Domestic Battery & Testimony IV
- Shall Doesn't Mean Shall
- Just Following Orders
- Lycurgus Not Welcome in Virginia
- Jones:Trespass = Search
- Shatzer:4th Amendment Expiration Date
- Gant: Limiting Car Searches
- Montejo: No more 6th Amendment Protections
- Padilla & the Prosecutor
- Ventris: Allowing Unconstitutional Questioning
- Carroll Doctrine
- Best Way to Choose a Judge
- What's a Prosecutor?
- Defense Attorney Purpose
- Plea Agreement Actualities
- The Big 4: Why I can't Go To Jail: 1 ~ 2
- Liquor Use Laws
- How to Fix Va.'s Court of Appeals
- Punishment Scale
- Punishment Scale Explained
- Punishment: There but for the Grace of God
- Heavy Sentences (1)
- Heavy Sentences (2)
- Probation
- Change Felonies to Misdemeanors
- Do Justice?
- Kentucky v. Virginia
- Must Prosecutors Disprove Affirmative Defenses?
- Drug Schedules & Punishment
- Defendants & Situational Sincerity
- 1) Immorality in Pleading Not Guilty
- 2) Immorality of Pleading Not Guilty
- Posner v. Hart & Strict Liability
- More Posner & Strict Liability
- Pre-Stare Decisis
- Let Juries Find People Innocent
- Tell Jury Elements Pretrial
- Falsity of Malum Prohibitum (1)
- Falsity of Malum Prohibitum (2)
- Falsity of Malum Prohibitum (3)
- Brady
- Writ of Spite & Hatred
- Various Riot Acts
- Tazers
- Finding of Innocent
- No Appellate Oral Arguments
- CrimJustice Purpose
- Pro Se Defendants
- Misdirecting the Police
- Stress Seekers?
- Plea Agreement
- Faking Probable Cause I
- Faking Probable Cause II
- Faking Probable Cause III
- Faking Probable Cause IV
- Legalese: Name Changes
- How Could We Best Select a Judge
- RICO & Bin Laden
- Requirement of Defense Attorneys
- Should Lawyers Make Clients Confess?
- Crummy Hired Defense Attorneys
- Noble Defense?
FEB03
Jury
Jury
JUN03
A Week in the Life
A Week in the Life
JUL03
A Week in the Life
OCT03
A Week in the Life
DEC03
A Week in the Life
JAN04
5 Events
A Needed Sign
A Week in the Life
Trial Desperation
A Week in the Life
A Week in the Life
Quick Panic
FEB04
Supress Motion
A Week in the Life
A Week in the Life
MAR04
A Week in the Life
Closing Argument
APR04
A Week in the Life
A Week in the Life
A Week in the Life
A Week in the Life
MAY04
A Week in the Life
A Week in the Life
A Week in the Life
JUN04
Chocolate Chip Marijuana
A Week in the Life
High School Critique
JUL04
A Week in the Life
Cripple v. Cop
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
I'm a Narc
AUG04
Frustrating Day
Damn Yankee Defense
A Week in the Life
SEP04
Angry Relative
01 Long Week
OCT04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
-----
01 Long Week
02 Long Week
03 Long Week
NOV04
Client Families
DEC04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
06 Long Week
Surprise at Prelim
Confronted
JAN05
A Sentencing Hearing
Sales Lady Visits
FEB05
Purse Search Brief
Violent Insane Client
MAR05
Affidavit of Truthfulness
Juvenile Detention Visit
Moments in the Life
Fail to Visit
APR05
Trial of the Century
MAY05
Transcript: Court Argument I Won
A Day in Court
Moments in the Life
Angry Jury Day
Angry Jury 02
JUN05
Eureka Sentencing Moment
My Own PI
Innovative Jail Phone Call
A Moment in Court
A Moment in Court
JUL05
Huh?
Raccoon Attack
AUG05
Picking on a Prosecutor Intern
Moments in the Life
SEP05
Victory by Speedy Trial
OCT05
Kicking Myself
A Day in the Life
Insane Client & 15 Deputies
Torture by Judge
A Federal Habeas
NOV05
Invisolawyer
Petition Freak Out
Moments in the Life
Moments in the Life
State Habeas
DEC05
Moments in the Life
JAN06
Jury Trial Fizzle
FEB06
A Bench Trial
Bittersweet "Victories"
A Prosecutor Tries to do Right
MAR06
What Just Happened?
Va. Worse than Conn.
Illness as a Defense Attorney
Failed Prison Visit
APR06
Heard in a Courthouse
Appellate Court Argument 01
Va. Court of Appeals
MAY06
Heard in Court
JUN06
Bad Press
Entire History of a Trial
Bad Press 02
JUL06
I Must be too Good
AUG06
Announce Becoming Prosecutor
The Last Life in a Week
Monday
Tuesday
Wednesday
Thursday
Friday
~~~~~~~~~~~~~~~
CYA Letter: Felony Client
CYA Letter: Appeal
Conversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents
JAN07
The New Office
FEB07
Different Court Diferent Behavior
Competency
MAR07
Cats
Ma'am I'm the Prosecutor
JUN07
I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
OCT07
Jury
FEB08
CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange
Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
Southern District of Fla.
Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court
Virginia Blogs
SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato
Worthwhile
Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage
Vlogs
TWIT Live
Spill.com
Tekzilla
Archive
February 2003
March 2003
April 2003
May 2003
June 2003
July 2003
August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
October 2006
November 2006
December 2006
January 2007
February 2007
March 2007
April 2007
May 2007
June 2007
July 2007
August 2007
September 2007
October 2007
November 2007
December 2007
January 2008
February 2008
March 2008
April 2008
May 2008
June 2008
July 2008
August 2008
September 2008
October 2008
November 2008
December 2008
January 2009
February 2009
March 2009
April 2009
May 2009
June 2009
July 2009
August 2009
September 2009
October 2009
November 2009
December 2009
January 2010
February 2010
March 2010
April 2010
May 2010
June 2010
July 2010
August 2010
September 2010
October 2010
November 2010
December 2010
January 2011
February 2011
March 2011
April 2011
May 2011
June 2011
July 2011
August 2011
September 2011
October 2011
November 2011
December 2011
January 2012
February 2012
March 2012
April 2012
May 2012
June 2012
July 2012
August 2012
September 2012
October 2012
November 2012
December 2012
January 2013
February 2013
March 2013
April 2013
May 2013



