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Jeff Cox was convicted of the abduction and murder of an elderly woman in Richmond, Va., in 1990. During the trial, two eyewitnesses fingered the young man from rural Virginia as the murderer. His trial lasted one day, and he was sentenced to life plus 50 years in prison. Ten years later, appellate attorney Steven Benjamin took on Cox’s case. He discovered that one of the eyewitnesses, while testifying against Cox, was facing felony charges filed by the same prosecutor. Another had offered incongruous testimony about the timing of events. Skin collected from the victim’s fingernails, evidence long lost, was never tested for DNA. Cox’s court-appointed trial attorney raised no questions on those subjects, no objections. Benjamin believes it was because he was paid about $285 to handle a case that needed hundreds of hours of work. Virginia is last among the 50 states and the District of Columbia in what it pays criminal defense attorneys for representing people who can’t afford their own counsel. Every year, the defense bar appeals to lawmakers for a raise. This year, they finally got one. In April, the Virginia House and Senate passed legislation raising the amount allotted for court-appointed attorneys from $845 to $1,096 for felonies carrying a sentence of 20 years or more, $305 to $385 for other felonies, and $132 to $147 for misdemeanors. The raises are only about two-thirds of those sought by bill sponsor Del. Jim Almand, who represents parts of Arlington and Fairfax, because of funding limitations put in place by the appropriations committee. The money may be enough to quell the long-standing controversy for a few years. But defense attorneys say the raises are too small to make a difference. “It’s the same thing they’ve been doing for 30 years,” says Benjamin. “When the pressure is unbearable, [lawmakers] provide for a token increase, ensuring our place at the bottom of barrel.” Even after the increase, Virginia still provides the smallest amount of compensation to court-appointed attorneys, keeping Alabama and Tennessee out of last place. Both of those states have caps around $1,000 per felony, but allow the limits to be waived at a judge’s discretion. “Other states have caps, but they have cap waivers when the case requires more work,” says Scott Wallace, director of Defendants and Legal Services Association, a criminal defense-oriented research and education group. Virginia’s pay scale leaves defense lawyers the choice of representing the poor at their own expense or merely escorting them through the system, he says. “To think that you can handle a case where your client could go away for 25 years for a couple thousand dollars is ludicrous,” Wallace says. One of the legislative solutions presented — and rejected — this year was to give trial judges the authority to increase pay for lawyers handling the toughest cases. “The pay scale for a lot of cases isn’t totally out of whack,” says Robert Wagner, a partner at Richmond-based Wagner & Wagner, who worked as outside counsel for the Legislature’s Courts of Justice Committee. “It’s the more serious crimes where more work needs to be done.” One of the problems with the current system is that only attorneys with little or no experience are willing to take on the work, he adds. “In the rural counties, there is not a high concentration of attorneys qualified to handle these cases. A lot of the court-appointed attorneys are right out of law school, and it’s the only way they can make a buck.” Benjamin, of Richmond’s Benjamin & DesPortes, recently took his argument to a different forum. He has filed a habeas corpus with the Virginia Supreme Court on behalf of Cox, claiming the defendant’s trial counsel was ineffective. But last month, Benjamin lost an appeal before the Virginia Court of Appeals on a separate murder case. In Webb v. Commonwealth, the court rejected his argument that the trial attorney’s pay was too low to provide adequate representation. “A lawyer also has an ethical obligation to participate in serving the disadvantaged; thus, representing the disadvantaged for a ‘nominal’ fee cannot, on its face be deemed to create a conflict of interest,” Judge Sam Coleman III wrote for a three-judge panel. Lawmakers from both sides of the aisle agree that court-appointed attorneys are paid too little. “We don’t have a collapse in indigent services, but we do have people refusing to serve as court-appointed counsel,” says Del. Jack Howson Rust Jr., of Fairfax. “If we had that collapse in services, we’d have a significant crisis on our hands.” Del. Donald McEachin, representing parts of Charles City, Henrico County, and the city of Richmond, says, “For years we’ve been trying this, but you have to have a governor committed to it. We haven’t had that under the Gilmore regime to do it to the level that would get us off the bottom.” This year, the Virginia Bar Association and the Virginia Trial Lawyers backed the pay raise. Mark Rubin, a partner at Richmond-based Shuford, Rubin, & Gibney, lobbied for the Virginia Bar Association. He declined to comment for this article. However, Rubin and the bar approached Gilmore early on in the session, according to a person familiar with the negotiations who asked not to be identified, asking that the governor allow for the increase in his budget recommendation. In the end, Gilmore did not include it in his budget. However, the bill passed into law because Gilmore did not veto it. “We knew as a practical matter that it would be vetoed if we asked for much more,” says Del. Tom Moss, who represents part of Norfolk. “Since it wasn’t a lot of money in the overall scheme of things, it went through rather easily.” Moss and others criticize the governor for keeping defense costs down while supporting a $10 million tax cut to attract businesses and another measure to eliminate Virginia’s property tax on cars under $20,000 over a five-year period. “Anything that might impact his car tax is something he won’t support,” said Del. John Tate, who represents parts of Grayson County. However, Sen. Ken Stolle, from Virginia Beach, says the argument shows a lack of understanding of the political process. One of the biggest reasons Stolle says it’s tough to get funding for attorney programs is because of the decreased number of attorneys in both the house and senate. “The issue is whether attorneys can convince nonattorneys the money should be spent on criminal legal services,” he says. “Paying attorneys more rather than building a road in a delegate’s district is a tough sell.”

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