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My NEW Hero: Drew Willey! This NYTimes Article Illustrates Need for Statewide Public Defender System!

Galveston attorney Drew Willey is my new hero:

A criminal defense lawyer in Galveston, Tex., says he was pulled off cases defending poor clients because he spent too much time on them and requested funds to have their charges investigated.

Needless to say, his clients were not the ones complaining. Instead, it was the judge, Jack Ewing, who appoints lawyers for those in his courtroom who cannot afford them.

“You overwork cases,” Judge Ewing told the lawyer, Drew Willey, according to excerpts from a recorded conversation cited in the lawsuit.

I rarely cite the NYTimes.  It is only one or two steps higher than the Washington Post or CNN or MSNBC.  But once in a while there is a solid article there.  And here’s the one for me:

His Clients Weren’t Complaining. But the Judge Said This Lawyer Worked Too Hard.

This group, the Civil Rights Corps has an intriguing case.  One of the allegations is that the judge resented so much Willey’s defense efforts that he refused to appoint him to indigent clients:

But according to the lawsuit, Judge Ewing told Mr. Willey that he spent too much time defending individual clients.

“You are the only attorney” to routinely ask for a paid investigator, the judge said. He also complained that cases resulting in guilty pleas generally should not take more than three hours of work, but Mr. Willey sometimes took longer.

Now I would say first, these are allegations only.  NOT PROVEN.  Not yet!  But check out these disturbing facts from the article:

“Judges have incentives to appoint counsel who file fewer pretrial motions, ask fewer questions during voir dire, raise fewer objections, and present fewer witnesses,” the [2011 RAND] study said.

And, experts say, that gives lawyers reason to push for a fast resolution, skipping thorough investigations or motions that might slow the docket or displease the judge. Some defense lawyers also fear that if they object too strenuously, their clients will be penalized.

I can also say when I started in Prince William County the judges that I appeared in front of were uniform in their zeal to ensure the lawyers were properly representing their clients.  And as you might expect, I had zeal to go to court and try out new arguments and generally try cases.  (I was the first lawyer in about seven generations in my family!)  Now these judges ruled against me very often and there was even an appeal or two (I think I won several reversals in state courts and one or two civil reversals in federal court).  That appellate record is why I went to Richmond and became ultimately the Commonwealth’s first Appellate Defender.

But this is not about me; it is about Drew Willey and the system of justice we have.  Our judicial system reminds of the famous quote attributed to Churchill:  Democracy is the worst system in the world until you consider the alternatives.  But we can make the system here in the US better and more effective.

In Virginia, the court-appointed lawyers (and the public defenders, too to some extent) if they want extra money for investigators and experts they must ask the court for these funds.  And give the Commonwealth notice.  They can object.  But more importantly, the Commonwealth now knows the legal strategies of the defense.

Now, a retained attorney does not have to ask the judge for expert money nor advise the state of his or her strategy.

This is another reason why we need the statewide public defender system:

A 2011 RAND Corporation study [Blogger’s note: cited above in previous quote and I added the cite to the study] of more than 3,000 Philadelphia murder cases found that clients fared better when they were represented by a lawyer from an independent public defender organization than if they had one appointed by a judge: Their conviction rate was 19 percent lower; the chances that they would serve a life sentence were reduced by 62 percent; and their expected sentence length was 24 percent shorter.

“Judges have incentives to appoint counsel who file fewer pretrial motions, ask fewer questions during voir dire, raise fewer objections, and present fewer witnesses,” the study said.

Now we need one more thing:  A fund for both count-appointed and public defenders to access funds necessary (by the way the United States Supreme Court held that the Sixth Amendment DOES provide expert assistance for psychiatric cases if there is a proper need for it and our supreme court has extended this principle to other kinds of experts) and a procedure to protect the public fisc and ensure the Commonwealth’s office does not know the defense strategy – maybe a small office attached to the Attorney General in Richmond.  Maybe that fund to be $500,000.oo the first year.  (In contrast, the fee waiver fund for special cases is about 7.5 million dollars!)

Our legislature has a few – maybe more than a few – that care about this issue.  But not enough.  We have not studied even the feasibility of a statewide APPELLATE defender, let alone the entire system.  But we cannot stop and I will not stop agitating on this issue until every city and county in this Commonwealth has a public defender office.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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