INTRODUCTION
For true liberty and equality to flourish, it is essential that democracy allows for the fullest participation of all individuals in governance.
Equality is a concept that, while often discussed, remains difficult to achieve in society and the legal system It embodies the idea of equal rights and social status for all, which could potentially eliminate conflict and diminish the significance of diversity and social identity Consequently, society strives for fairness—defined as treating individuals without favoritism—through various means, whether by chance, circumstance, or determination As John F Kennedy poignantly remarked, few generations have the opportunity to defend freedom during critical times, a responsibility he embraced wholeheartedly.
Gideon v Wainwright established that the Fourteenth Amendment guarantees the right to counsel for the accused, requiring states to provide legal representation to those who cannot afford it This Supreme Court ruling reinforced practices already in place in various jurisdictions, ensuring that all defendants receive legal support, regardless of their financial status While the principle seems straightforward, the implementation of providing legal counsel demands significant resources, including time and funding, which could otherwise be allocated to essential government programs like education, healthcare, and transportation.
I ARISTOTLE, POLITICS bk IV, at 156 (Benjamin Jowett trans., Oxford Press ed., 1908).
2 Equality, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/equality (last visited Mar 25, 2020).
3 Emily Pronin et al., Understanding Misunderstanding: Social Psychological Perspectives, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 636-65 (Thomas Gilovich et al eds., 2002).
4 See Keith Hart, Money Is Always Personal and Impersonal, 23 ANTHROPOLOGY TODAY 12,
Research has highlighted various factors influencing economic mobility, including the purchasing power of credit and the development of human capital Notably, studies such as Shao et al (2012) emphasize the connection between social mobility and economic opportunities, while Zhan (2006) focuses on the unique challenges faced by single mothers, illustrating the importance of assets in enhancing their economic status These findings underscore the multifaceted nature of economic mobility and the critical role of financial resources and education.
5 Fair, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/fair (last visited Mar 25, 2020).
6 John F Kennedy, Inaugural Address of President John F Kennedy (Jan 20, 1961).
8 Ralph E McKinney, Jr & Lawrence P Shao, Indigent Criminal Defense: Qualitative Review on Economic Value, 8 EUR J MGMT 146, 148 (2008).
"societies want to protect legitimate society members', within the respective society's jurisdiction, fundamental property rights concerning criminal prosecution."' 0
This article offers a historical perspective on Public Defender Services in West Virginia, the state agency dedicated to supporting indigent defense programs and upholding Gideon's promise It also presents an insider’s view of the agency's operations, highlighting the challenges, setbacks, and achievements encountered while ensuring constitutionally mandated legal representation for the accused in West Virginia.
This article explores the historical right to counsel prior to the landmark Gideon v Wainwright decision It also analyzes the American Bar Association's guiding principles for indigent defense programs while addressing concerns highlighted in previous research Furthermore, the article delves into the critical role of Public Defenders in ensuring fair legal representation.
Services and its mission of providing legal representation in West Virginia.13
This article examines the financial and economic aspects of public defense programs in West Virginia, highlighting how these factors have led to a mixed approach in the delivery of legal services.
Finally, this Article concludes with suggestions for improving the delivery of legal services."
HISTORICAL OVERVIEW OF THE RIGHT TO COUNSEL
The Constitution includes several protections for people suspected or accused of crimes This table highlights and summarizes relevant amendments.16
16 Because this Article aims to provide an in-depth account of the Public Defender Services, discussion of these amendments will be limited to brief analysis.
4th Amendment Protects against arrests, searches, and seizures of property without probable cause
5th Amendment Primary due process clause, which protects against self-incrimination; Prohibits double jeopardy; Major crimes require indictment
6tAmendment Right to counsel; Right to speed public trial
8th Amendment Forbids excessive bail and fines and cruel and unusual puishment
14th Amendment Due process clause applying federal rights to the states
John Adams, a key framer of the Constitution and future second President of the United States, passionately advocated for legal representation for the accused His defense of the eight British soldiers involved in the Boston Massacre on March 5, 1770, likely offered him valuable insights into the shortcomings of the English legal system, shaping his contributions to the Constitution.
It is equally vital for the state to defend the accused as it is to prosecute them Efforts should be made to verify the innocence of those charged with a crime, just as there is a need to substantiate the allegations against them.
17 Mitch Kachun, From Forgotten Founder to Indispensable Icon: Crispus Attucks, Black
The Boston Massacre heightened tensions between the colonies and the British Crown, making John Adams's defense of the soldiers highly unpopular, particularly as influential figures like Paul Revere fueled anti-British sentiment through works such as "The Bloody Massacre" engraving Additionally, commentators like Hiller B Zobel argue that Adams and Josiah Quincy faced the inherent biases of Boston residents against the King and Parliament, which extended to the soldiers employed by the Crown, jeopardizing their chances of receiving a fair trial.
18 John Phillip Reid, A Lawyer Acquitted: John Adams and the Boston Massacre Trials, 18
Am J LEGAL HiST 189 (1974) There was no shortage of people accusing John Adams of using the trial as a political referendum (e.g., Thomas Hutchinson, cousin of Samuel Adams) Id at 206.
19 Abram E Adelman, In Defense of the Public Defender, 5 J AM INST CRIM L &
20 Id These words preceded Gideon v Wainwright by approximately 49 years Compare id.
(recognizing the need for public defenders in 1914), with Gideon v Wainwright, 372 U.S 335,
342 (1963) Indeed, several published sources (between 1911 and 1922) debated the merits of having programs supporting legal representation for indigents See McKinney & Shao, supra note
Discussions surrounding the administration, funding, and staffing of legal programs highlighted key questions about the government's role and responsibilities A significant point of debate was whether public funds should cover legal representation and if additional services, such as access to investigators, experts, and social services, should be provided These services aim to address the root causes of criminal activity, including resource scarcity, educational deficits, and societal misunderstandings.
The judiciary is responsible for establishing evidence standards in both civil and criminal cases This responsibility highlights the need for utilizing public and taxpayer funds to enhance the organization of legal services, ensuring they meet the minimum acceptable standards as outlined by the U.S Constitution.
In 1915, the California Law Review emphasized the importance of legislative reforms aimed at public funding for indigent criminal defense programs, stating that "a defendant without money has very little chance to maintain his defense." This highlights the critical need for equitable legal representation for those unable to afford it.
In 1916, over 100 Public Defender Offices were established across the United States, marking a significant shift from earlier indigent defense programs that depended on volunteer attorneys and charitable contributions, which offered only minimal support Arthur Warner highlighted the necessity for impartial legal representation in 1926, free from the influences of politics, law enforcement, and investigators This underscored the growing recognition of the importance of adequate legal defense for those unable to afford it.
This echoes the holistic offices that focus on the entire person and not just the immediate need for legal representation.
21 See Jeremiah Smith, Legal Cause in Actions of Tort, 25 HARV L REv 103, 103 (1911)
(citing JAMES B THAYER, PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 1-4, 180,
22 Adelman, supra note 19, at 494; see also Editorial Note, The Public Defender, 3 CAL L.
The author asserts that every individual is entitled to legal representation and emphasizes that public defenders are more efficient and effective compared to volunteer counsel.
24 Laurence A Benner, The California Public Defender: Its Origins, Evolution and Decline,
In 1914, the County of Los Angeles pioneered the establishment of a Public Defender office, marking a significant development in legal representation for both criminal and select civil cases This initiative is largely credited to Clara Shortridge Foltz, who passionately advocated for an elected public defender system during her speech at the 1893 Chicago World's Fair.
Shortridge Foltz: Pioneer in the Law, 27 HASTINGS L.J 545 (1976) Schwartz presents an overview of the 1870s struggle for Foltz to gain admission to law school and the bar in California See id.
25 McKinney & Shao, supra note 8, at 148; James B Reynolds, The Public Defender, 12 J.
AM INST CRIM L & CRIMINOLOGY 476 (1922); Douglas Snyder, Legal Aid in the United States
(Aug 16, 2003) (unpublished manuscript), http://citation.allacademic.com/meta/p mlaapa-researchcitation/1/0/6/8/3/pageslO6837/plO68
37-1.php [https://perma.cc/E68E-LALC].
26 See Adelman, supra note 19, at 495; Reynolds, supra note 25, at 477; Snyder, supra note
27 Arthur Warner, Paving the Way, 123 NATION 266 (1926) This is in response to a case in
In the case of Commonwealth v Sacco, 151 N.E 839 (Mass 1926), Warner highlights a critical judicial concern, stating that while a single miscarriage of justice can occur, it is unlikely to happen twice This observation pertains to the prosecution methods, the defense attorney's actions, and the resulting verdict Ultimately, Vanzetti was convicted of two distinct crimes, including murder.
Braintree and attempted robbery at Bridgewater Id at 266 Warner offers this answer:
In the U.S legal system, a conflict of interest prohibits prosecutors from serving as defense attorneys, highlighting the necessity for distinct roles within the judicial process To ensure adequate representation in criminal cases, the implementation of taxpayer-funded full-time Public Defenders has become essential Moreover, it is crucial that the legal representation provided to indigent individuals meets a standard of quality that exceeds mere minimum requirements mandated by law.
"We have a wealth-based system of justice For the wealthy, it's gold-plated For the average poor person, it's like being herded to the slaughterhouse." 3 1
AMERICAN BAR ASSOCIATION'S TEN PRINCIPLES
More recently, in February 2002, the American Bar Association ("ABA") approved a set of ten guiding principles (the "Principles"), described
A miscarriage of justice is unlikely to occur twice for the same individual when it involves different charges, takes place in various locations, and occurs at separate times.
In any neighborhood, during times of hysteria, there is often a strong community impulse to eliminate a specific individual or group.
Warner highlights critical issues in the defense's approach, including inadequate advocacy, missed timely objections, and insufficient evidence against the defendant Despite Vanzetti's solid alibi and multiple witness testimonies in his favor, the system ultimately failed to protect him, resulting in his conviction.
28 Mayer C Goldman, The Need for a Public Defender, 128 NATION 131, 131 (1929)
Goldman discusses the case of Charles F Stielow, who was convicted of murder in New York and later pardoned by Governor Whitman Stielow's conviction was based on what Goldman describes as a "third-degree confession," implying that the evidence relied upon was hearsay.
Alfred Schwitofsky was granted a commuted sentence by Governor Whitman due to concerns regarding the judicial process that led to his twenty-year sentence for burglary and felonious assault.
30 Kenneth Scott Schlesinger, Comment, Polk County v Dodson: Liability Under Section
In the context of 42 U.S.C § 1983, the issue of liability for public defenders arises when they fail to provide adequate legal counsel to indigent clients Schlesinger discusses this topic in detail, highlighting various cases that explore the application of this statute to public defenders acting "under color of state law" in violation of constitutional rights Significant cases referenced include Polk County v Dodson and Screws v United States, which illustrate the complexities surrounding the responsibilities of appointed and pro bono counsel in the legal system.
In West Virginia, the statute § 29-21-20 grants general immunity from legal actions related to the representation of indigent clients, as outlined in W VA CODE ANN (West 2020) This immunity may also extend to federal appointments, as established in the case of Mooney v Frazier, 693 S.E.2d 333 (W Va 2010).
For a historical review of significant events impacting indigent legal representation, see John
C Kilwein, Indigent Access to Justice in West Virginia, 20 W VA Pun AFF REP 2, 2-9 (2003).
The editorial titled "Too Poor to Be Defended," published in the Economist on April 11, 1998, highlights critical issues surrounding the defense of individuals who cannot afford legal representation Stephen Bright, the Director of the Southern Center for Human Rights in Atlanta, emphasizes the systemic injustices faced by the impoverished in the legal system The article calls for urgent reforms to ensure that everyone, regardless of their financial status, has access to a fair defense.
The essential criteria for designing a system that delivers effective, efficient, high-quality, ethical, and conflict-free legal representation for criminal defendants lacking the means to afford an attorney are outlined in ten key principles.
1 The public defense function, including the selection, funding, and payment of defense counsel, is independent.
2 Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
3 Clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after clients' arrest, detention, or request for counsel.
4 Defense counsel is provided sufficient time and a confidential space within which to meet with the client.
5 Defense counsel's workload is controlled to permit the rendering of quality representation.
6 Defense counsel's ability, training, and experience match the complexity of the case.
7 The same attorney continuously represents the client until completion of the case.
8 There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.
9 Defense counsel is provided with and required to attend continuing legal education.
10 Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards 3 3
Former Attorney General Eric Holder cited the Principles as "the building blocks of a well-functioning public defender system." 34
32 AM BAR Ass'N, TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM, at intro (2002), https://www.ils.ny.gov/files/ABATen Principles.pdf.
34 Eric Holder, U.S Att'y Gen., Address at Department of Justice National Symposium on
Indigent Defense: Looking Back, Looking Forward, 2000-2010 (Feb 18, 2010), https://www.justice.gov/opa/speech/attomey-general-eric-holder-addresses-department-justice- national-symposium-indigent.
The American Bar Association (ABA) advises jurisdictions to utilize its Principles for the timely assessment of public defense delivery systems and to effectively communicate these needs to policymakers Several states have referenced these Principles in the creation and enforcement of their indigent defense regulations Additionally, the United Nations has recognized the Principles in its declarations concerning the essential human right to access justice.
Previous research highlights a concerning lack of awareness and compliance among practitioners regarding the established Principles A nationwide survey conducted by Professor Caroline S Cooper revealed that only a significant portion of respondents adhered to the first principle, which emphasizes the independence of counsel In fact, less than half of the attorneys surveyed reported "completely" or "mostly" following the remaining nine principles Additionally, the study found that respondents tended to overestimate their adherence compared to actual performance benchmarks.
Professor Cooper emphasizes that the performance of public defense providers is heavily influenced by systemic challenges such as inadequate funding, understaffing, high caseloads, and insufficient management infrastructure He argues that these issues are beyond the control of individual public defenders and calls for a collaborative effort between public defense providers and policymakers at all levels to effectively tackle these systemic shortcomings.
Policy makers face significant challenges in addressing critical issues due to inconsistent quality data and a lack of consensus on relevant metrics for policy formulation As highlighted by Professor Jennifer E Laurin, these obstacles hinder effective decision-making in the policy-making process.
35 AM BAR Ass'N, supra note 32.
36 State v Lee, 879 So.2d 173, 176 n.2 (La Ct App 2004); In re Regulations Governing a Sys for Appointment of Counsel, No 2015-27, 2016 Mich LEXIS 1072, at *4 (Mich June 1,
37 See Norman Lefstein, Time to Update the 'ABA Ten Principles'for the 21st Century,
40 CHAMPION 42, 42 (2016) (citing David Carroll, The United Nations Takes the Ten Principles
International, SixTH AMEND CTR (Jan 11, 2013), https://sixthamendment.org/the-united-nations- takes-the-ten-principles-international/).
38 See Caroline S Cooper, The ABA "Ten Principles of a Public Defense Delivery System
How Close Are We to Being Able to Put Them into Practice?, 78 ALB L REv 1193, 1202 tbl.3
45 See, e.g., Janet Moore & Andrew L.B Davies, Knowing Defense, 14 OHIO ST J CuM L.
345, 348-50 (2017); Jennifer E Laurin, Gideon by the Numbers: The Emergence of Evidence- Based Practice in Indigent Defense, 12 OHIO ST J CRIM L 325, 332-33 (2015).
The provision of defense services is largely shaped by various professional standards, yet much of this guidance lacks a solid evidence-based foundation, relying instead on collective experience and observation Although indigent defense is widely recognized as underfunded, there is a significant absence of objective metrics to accurately assess the costs of these services or to understand the implications of reduced service quality.
Nadine Frederique, Patricia Joseph, and R Christopher C Hild highlight the challenges in making broad conclusions about indigent defense systems due to the unique circumstances and specifics of each study.
Davies, and Elizabeth Brown also identify the patchwork-nature of indigent defense:
THE WEST VIRGINIA INDIGENT DEFENSE SYSTEM
Trials for crimes and misdemeanors must be conducted by a jury of twelve individuals, held publicly and without unreasonable delay in the county where the offense occurred, unless the accused requests a change of venue for valid reasons The accused has the right to be clearly informed of the charges against them, confront witnesses, receive legal counsel, and have adequate time to prepare their defense Additionally, they are entitled to compulsory process to secure witnesses in their favor.
West Virginia is dedicated to the principle of indigent defense, but this commitment requires effective legal representation for those in need To meet its Constitutional obligations, the West Virginia Legislature has assigned the Public Defender Services (PDS) the crucial role of providing indigent defense.
But before PDS was established, an Agency known as the Public Legal Services Council served that function 53
The legislature acknowledges the necessity for the state to offer high-quality legal assistance to indigent individuals unable to afford legal counsel, as mandated by W VA CONST art III, § 14 Before 1981, there were no Public Defender Corporations, and appointed counsel submitted claims to the Supreme Court of Appeals of West Virginia for legal representation.
52 For a historical overview, see Kilwein, supra note 30.
S3 The Public Legal Services Council was a direct result of State ex rel Partain v Oakley, 227
We believe that the Legislature will thoroughly examine the critical need for an updated delivery system for legal counsel for indigent defendants and will make informed decisions to ensure the effective administration of criminal justice in West Virginia.
The court addressed two main issues regarding indigence: the need for clarification of the term and the methods for determining and confirming it Before the Partain case, appointed counsel were compensated with fees of up to $100 for misdemeanor cases and $200 for felony cases.
The justice system must uphold the rights and privileges guaranteed by the U.S Constitution and the West Virginia Constitution, ensuring that all citizens have access to quality legal assistance, which strengthens their trust in the rule of law Currently, the appointed counsel system is inadequate in certain regions, and the legislature is struggling to identify the most effective methods for legal representation To address this, there is a pressing need to investigate alternative delivery methods, such as employing salaried public defenders alongside private panel attorneys Additionally, implementing innovative programs, pilot projects, and maintaining the existing appointed counsel system in various areas will provide valuable insights for future legislative decisions.
The Public Legal Services Council was "reorganized as a result of Chapter 169, Acts, Regular Session, 1989, amended by Chapter 154, Acts;
Regular Session 1990; and Chapter 209, Acts, Regular Session, 1996" as the
Public Defender Services 5 5 The West Virginia Public Defender Services
Established on July 1, 1981, the Public Defender Service (PDS) serves as the state agency responsible for providing legal representation to eligible individuals Its programs focus on assisting indigent persons accused of crimes in State and Municipal Courts, individuals before Mental Hygiene Commissioners, all juveniles in judicial proceedings, and parties involved in abuse and neglect cases, including both parents and children Additionally, PDS covers miscellaneous proceedings such as probation and parole revocation, court contempts, extradition, and other ancillary matters related to eligible cases.
(appeals/habeas corpus, forfeiture, and expungement proceedings) 59
The organization of PDS is discussed below.
5 In 1989, West Virginia enacted legislation that created Public Defender Services W VA.
CODE ANN § 29-21-3 (West 2020) ("There is hereby created an executive agency known as public defender services.").
58 Id § 29-21-2(2) (defining the term "[e]ligible proceeding").
The Organizational Structure and Function ofPDS
PDS operates as an executive agency under the Department of Administration, but its structure differs significantly from a traditional model where legal services are directly provided by staff attorneys to the Executive Director.
The PDS is overseen by an Executive Director, who is appointed by the Governor and must be confirmed by the Senate To qualify for this role, candidates must be recognized as qualified administrators by the Governor and must be a member of the bar of the Supreme Court of Appeals.
The qualifications for the Executive Director, as determined by the governor, are ambiguous and lack specificity While the law mandates that the Executive Director must be a member of the Bar of the Supreme Court of Appeals, it does not clarify whether this membership must be in good standing or which classification is required Additionally, the statute does not explicitly state that the individual must have the ability to practice law Moreover, there is uncertainty regarding whether an "Acting Executive Director" must meet the same qualifications as the permanent Executive Director.
PDS has three distinct units: the Criminal Law Research Center, 6 8 the Accounting and Auditing Division, 6 9 and the Appellate Advocacy Division 7 0
60 Id § 5F-2- 1 (a)(7) (incorporating Public Defender Services as part of the Department of Administration).
61 Id § 29-21-5 At the writing of this paper, there have been four Executive Directors-
Michael Frasher (1981-1989), John "Jack" A Rogers (December 1989-December 2010), Russell
S Cook served as Executive Director from January 2011 to April 2013, during which time he also held the position of Acting Executive Director Following Cook's departure, Cedric Greene, the Deputy Cabinet Secretary of Administration, managed the Agency until Dana F Eddy was appointed in July 2013 Consequently, the Fiscal Year 2014 contracts with Public Defender Corporations were jointly signed by Cedric Greene from the Department of Administration and Ralph E McKinney of PDS.
68 Id §§ 29-21-6(c), 29-21-7 It should be noted that both sections contain similar functions except the latter has greater specificity as to those functions.
The Criminal Law Research Center (CLRC) is dedicated to providing legal research resources, producing publications, and offering affordable continuing legal education Its primary goal is to facilitate knowledge by coordinating efforts in researching, analyzing, and distributing legal materials, both in written form and through training programs.
The CLRC is dedicated to providing affordable legal knowledge to enhance the skills of both employees and non-employees To support ongoing legal education, the CLRC organizes the Annual Public Defender Conference in West Virginia.
The Accounting and Auditing Division oversees financial management for the Public Defender Corporations and other entities funded by the PDS This division is also tasked with preparing the Agency's Annual Report and maintaining accurate records Given the Agency's growth and complexity, this unit has been administratively restructured.
Operations and Public Defender Corporations and Accounting and Voucher
The CLRC is the sole unit within PDS that manages a re-appropriated special revenue account, which is an unexpiring account designed to collect fees for materials and services This account allows the CLRC to utilize these funds effectively in fulfilling its functions The directors of CLRC are Elizabeth.
Zuccari Murphy, John "Jack" A, Rogers, Russell S Cook, and Donald L Stennett.
74 Author McKinney attended the 2010 Annual Public Defender Conference in Charleston,
West Virginia See W VA PUB DEF SERVS., 2010 ANNUAL REPORT 9 (2010), http://www.wvlegislature.gov/legisdocs/reports/agency/P07_FY_2010_1031 pdf [hereinafter
In 2010, conference attendees were unexpectedly met by law enforcement officials on their first day, as a nearby robbery at the United National Bank had just occurred The police presence was a direct response to the unfolding situation, which involved a suspect fleeing the scene and entering the conference area.
Embassy Suite's premise via side kitchen door, then passed through the main conference area where many criminal defense attorneys and various Circuit Court judges and at least one Supreme
During a continental breakfast, court justices were unexpectedly apprehended, highlighting a significant conflict of interest in West Virginia's legal history Over 200 criminal defense attorneys and judges present were potential witnesses to the alleged criminal activity, raising serious ethical concerns under the West Virginia Rules of Professional Conduct.
76 The Annual Report focuses on compliance with the state's statutory reporting requirements.
The Accounting and Auditing Division initially functioned as a single unit, but as the Public Defender Corporations expanded and the number of appointed attorneys and expert service providers grew, Executive Director Jack Rogers restructured the division This led to the separation of responsibilities into two distinct areas: (1) Agency Operations, which includes monitoring Public Defender activities, and (2) enhanced service delivery to better support the legal program, reflecting increased funding appropriations from the Legislature.
Corporations and (2) Accounting & Voucher Processing for Appointed Counsel and service
The Appellate Advocacy Division specializes in legal representation for eligible clients before the Supreme Court of Appeals, with case selection determined by the Executive Director This division primarily appeals criminal convictions to the Supreme Court and occasionally to Circuit Courts, advocates for the enforcement of federal Habeas Corpus rights, and offers litigation support and advice to other legal practitioners, including those in Public Defender Corporations and appointed counsel The decision-making process prioritizes effective operational management while ensuring quality customer service to all parties involved.
Operations within Public Defender Corporations encompass various critical functions, including fiscal management, which involves overseeing accounts payable, procurement in accordance with § 148 CSR Series 1, and managing fixed asset schedules Additionally, human resource management is essential, focusing on maintaining personnel and leave records, aiding in selection processes, and serving as the agency's liaison for personnel matters Effective records and technology management are also vital components Other operational responsibilities include supporting the Indigent Defense Commission, editing the Agency Annual Report, producing necessary research and reports, and assisting with audits and investigations related to appointed counsel claims.
The unit oversees the financial management of 17 Public Defender Corporations across 22 locations, covering 18 out of 31 Judicial Circuits and 29 of 55 counties in West Virginia Its responsibilities include managing contracts, budgeting, and funding for these corporations, addressing global technology challenges, maintaining databases with TimeMatters for statutory reporting, offering training and education to staff and stakeholders, and providing general support and strategic guidance to the corporations.
There have been two Directors of operations: Kellie J Carper and Ralph E McKinney, Jr.
The accounting and voucher processing functions involve managing appropriation and expenditure requests, handling claims from appointed counsel and service providers, and preparing statutory reports in compliance with Appointed Counsel Claims requirements.
Appointed Counsel and Public
Appointed Counsel System
The appointed counsel system consists of attorneys dedicated to providing legal representation to individuals in need, ensuring that all eligible clients receive quality defense without conflicts of interest Despite the presence of a Public Defender Corporation, the demand for private panel attorneys remains essential.
Eligibility for legal representation is determined by assessing income, assets, and individual circumstances, as outlined in 85 Id § 29-21-16 Judges have the discretion to appoint legal counsel even if an individual's financial situation exceeds the guidelines established by PDS Additionally, under the precedent set by Rojas v Wilkes, 455 S.E.2d 575 (W Va 1995), a person may be deemed indigent for legal expenses, excluding legal fees These claims are processed as direct bills, known as "Rojas vouchers."
According to 86 Id § 29-21-9(b), the preferred method for appointing legal representation follows a specific hierarchy: first, a public defender office within the circuit is prioritized, followed by a panel attorney from the same circuit If those options are unavailable, a panel attorney from the broader region may be considered, then a public defender office in an adjoining circuit, followed by a panel attorney from that adjoining circuit, and ultimately, an attorney from any circuit.
The 87 PDS is tasked with establishing and reviewing financial guidelines for determining indigence, which align with the Federal Poverty Level (FPL) set by the U.S Department of Health and Human Services Historically, these guidelines were set at 150% of the FPL based on 1994 standards While there is a case for updating these guidelines to better reflect current economic realities, the challenge of securing additional funding for a larger eligible population has hindered such efforts among political stakeholders Consequently, judges were given the authority to assess indigence on a case-by-case basis, making them the de facto gatekeepers In 2013, PDS updated the guidelines to 125% of the FPL, although this adjustment was 25% lower than the previous standards and had minimal impact on the number of individuals qualifying for legal counsel.
Indigence is established at 856, and appointed counsel are compensated for their time and expenses by the Public Defender Service (PDS) within statutory payment limits To receive compensation, appointed counsel must submit a claim via voucher to the local authority.
The appointed counsel system in the Circuit Court was created to ensure reasonable compensation for attorneys handling indigent cases, rather than serving as a revenue source Established compensation rates, which have remained unchanged for over 25 years, encompass overhead costs associated with legal representation.
88 Id § 29-21-9 COMM'N ON THE FUTURE OF THE W VA JUDICIAL Sys., FINAL REPORT 64
(1998), http://www.courtswv.gov/court-administration/ReportAll.pdf [hereinafter FINAL REPORT].
Within the appointed counsel system, there are over 800 lawyers and service providers Id.
89 Attorneys acting as appointed counsel for indigents have no employment relationship with
PDS Additionally, there is no contractual relationship (i.e., vendor and customer) with PDS.
Individuals such as experts, investigators, and paralegals contracted by the attorney must collaborate with the attorney to ensure they receive direct compensation or alternatively, they can file a claim directly with PDS.
90 W VA CODE ANN § 29-21-13a An attorney's time is compensated at a rate of $60 per hour for out of court time, see id § 29-21-13a(j)(1), and $80 per hour for in court time, see id § 29-21-
13a(j)(2) The attorney's time is considered "fees."
91 Id § 29-21-13a(e) Although examples of expenditures are given within the statute, the amounts may be determined by PDS, the Travel Management Office of the Department of
When dealing with expenses, whether through the Administration, the State Auditor, or another entity, it is essential to consult with PDS to clarify the details of the expense and the necessary documentation required for submission.
PDS processes the majority of claims using a first-in, first-out system, which timestamps each claim upon receipt Claims related to abuse and neglect are prioritized in this process, as outlined in § 29-21-13a(i).
Under 93 Id § 29-21-13a(j)(4), the maximum fee limit is established at $3,000 for non-felony cases, except for felonies that could result in life imprisonment, where the court has discretion The court can also make case-by-case exceptions to the maximum fee limit Furthermore, the expenditure limit is set at $1,500 unless the court approves a higher amount, as stated in Id § 29-21-13a(k).
Each Circuit has its own procedures for handling claims to PDS, with some claims being sent directly by the Circuit Clerk while others require attorneys to submit them This reliance on attorneys can lead to issues such as lost, late, or unsubmitted claims, and the potential for document alterations, which the authors plan to address in future research.
The vouchers submitted to PDS constitute a public record that are subject to FOIA See Darrell V.
McGraw, Jr., The West Virginia Freedom of Information Act, OFFICE OF THE ATT'y GEN (2004).
Completed vouchers for legal fees and expenses submitted by attorneys to Public Legal Services for reimbursement are classified as 'public records' and are accessible to the public under the West Virginia Freedom of Information Act (WV-FOIA) This classification is supported by the agency's audit of these vouchers, affirming their public accessibility as outlined in the Attorney General's opinion.
In the landmark case Jewell v Maynard, 383 S.E.2d 536 (W Va 1989), the West Virginia Supreme Court established that no lawyer can be involuntarily appointed to a case unless the compensation is set at a minimum of $45 per hour for out-of-court services and $65 per hour for in-court services Recent legislative updates have further increased these rates to $60 for out-of-court work and $80 for in-court work, as outlined in W VA CODE ANN § 29-21.
13a(j)(l)2) (West 2020) Nevertheless, these rates are still below the recommendations of the
Public Defender Corporations
"In each judicial circuit of the state; there is hereby created a public defender corporation of the circuit " 9 6
There are currently 17 Public Defender Corporations, of which 9 are classified as non-state agencies These corporations are overseen by a board of directors consisting of at least five members, with the Chair being appointed by the Governor and the other members appointed by the County.
The Indigent Defense Commission, led by Chair John A Rogers, submitted a letter to Hon Robin Davis, Chief Justice of the Supreme Court of Appeals of West Virginia, on May 24, 2010, outlining key issues related to indigent defense in the state.
According to West Virginia Code § 29-21-8(a)(1), the legislature established a Public Defender Corporation in each of the state's 31 judicial circuits, which remain inactive until certain conditions are met Activation requires approval from both the Indigent Defense Commission and the Executive Director of PDS, a report to the legislature from the Indigent Defense Commission regarding the corporation's approval, and consultation with the judge or chief judge, who must provide recommendations for the Commission's consideration.
Prior to the reforms of 2008, the Indigent Defense Commission did not exist and the process of activating a Public Defender Corporation was significantly less challenging.
As a "public body" under section 29B-1-2(3), a Public Defender Corporation is subject to the Freedom of Information Act See Queen v W Va Univ Hosps., Inc., 365 S.E.2d 375 (W Va.
1987) However, there are exceptions to FOIA requests § 29B-1-4; McGraw, supra note 94.
7 Currently, Public Defender Corporations operate within 19 of the state's judicial circuits.
PD Corporation Directory, PUB DEF SERVS., https://pds.wv.gov/Public-Defender- Corporations/pdcorpdirectory/Pages/default.aspx.
The term "non-state agency" refers to an independent organization that aids a state agency in fulfilling its mission, often referred to as a "quasi-governmental organization." Regardless of the terminology used, these entities serve as structured organizational tools designed to achieve state objectives and missions effectively.
The term "non-state agency" refers to organizations not directly affiliated with the State's Legislature, Judiciary, or Executive branches, including county or municipal governments and select non-profit entities that aid in delivering government services In contrast, "quasi-governmental" organizations represent a blend of public and private sectors, where the government not only provides resources but also plays a leadership role For instance, Public Defender Corporations feature governing boards with politically appointed members Consequently, while all quasi-governmental organizations qualify as non-state agencies, not all non-state agencies are classified as quasi-governmental.
Public Defender Corporations, regardless of their designation, are recognized as component units of the Public Defender System (PDS) and must be included in the State's Consolidated Annual Financial Report (CAFR) This essential financial document plays a vital role in assessing the State's financial health, influencing decisions related to bond ratings and interest rates based on the audited information it contains The Financial Accounting and Reporting Section is responsible for compiling the CAFR.
(FARS) of the Department of Administration.
Commission and the local County Bar Association (or by Circuit Court if no
The County Bar Association operates with an equal number of members and is tasked with establishing macro-policies and operational strategies while adhering to nonprofit statutes The Board holds ultimate responsibility for personnel matters, although it does not represent individual cases Furthermore, the appointment of board members is directly linked to the number of counties served by the Public Defender Corporations.
101 Id § 29-21-15(c) The code specifically notes that the board "shall not interfere with any attorney's professional responsibilities to clients."
102 Id § 29-21-15(d) In practice, each Public Defender Corporation files with the Internal
The Revenue Service operates as a non-profit organization under I.R.C § 501(c)(3), while the IRS recognizes Public Defender Corporations as § 509(a)(1) entities, indicating they primarily receive funding from a governing body, specifically West Virginia However, the process of filing with the IRS has proven challenging due to the requirement to submit the Articles of Incorporation.
Incorporation and State Charter As noted earlier, West Virginia Code section 29-21-8 incorporates
Public Defender Corporations by statute Even with submitting copies of the statue, letters, and explanations, the concept of the quasi-government entity was still new to the I.R.S.
103 Id § 29-21-15(c)(1)-(3) In addition to hiring and firing authority, the board also has responsibility for "fixing of professional and clerical salaries." Contrary to popular belief, the
Executive Director of PDS has limited authority concerning the individual salaries of employees of Public Defender Corporations.
According to McKinney, who served as the Director of Operations for PDS, the Executive Director's most significant authority lies in financial control and the ability to engage with Public Defender Corporations This influence is further exemplified by the consistent practice of including budgets and salary schedules in contracts under the Executive Director's leadership.
Jack Rogers and Director of Operations Kellie Carper have raised concerns about potential cuts in state appropriations, which could significantly diminish the legal services offered by Public Defender Corporations Such funding reductions would likely lead to a decrease in qualified professional staff, ultimately affecting the organization's ability to provide essential services.
Public Defender Corporations must prioritize strategic long-term planning over merely focusing on their annual budgets Many offices lacked a clear understanding of personnel decisions, prompting PDS to implement internal compensation studies, standardize non-state benefits, and enhance effective personnel practices.
The last Public Defender Corporation was established in Fiscal Year 2001, marking a significant development in public defense services Notably, the period between 1986 and 1990 saw the largest increase in new offices, with five Public Defender Corporations being activated during those years.
Figure 1: PDS Growth by Fiscal Year
With respect to personnel, the complement of employees of Public Defender Corporations range from Public Defenders,' 06 Assistant Public Defenders,' 0 7 investigators, social workers, paralegals, sentencing advocates,
104 W VA PUB DEF SERVS., ANNUAL REPORT: FISCAL YEAR 2012-2013, at 13 (2013), https://pds.wv.gov/Documents/201`3%20ANNUAL%20REPORT.pdf [hereinafter McKINNEY, ANNUAL REPORT].
The Public Defender Corporation for the 4th Judicial Circuit has appointed a board of directors and chosen a Chief Defender; however, it remains unlisted in this context as it is still in the process of formation.
According to the West Virginia Code Ann § 29-21-2(5) (2020), a "public defender" is defined as a full-time staff attorney employed by a public defender corporation This role not only involves providing direct legal representation to eligible clients but also includes administrative responsibilities for managing the operations of the public defender corporation.
According to 107 Id § 29-21-2(6), a staff attorney is responsible for providing direct representation to eligible clients, with their salary and employment status determined by the board of directors of the public defender corporation.
860 accountants, bookkeepers, administrators, office managers, and secretaries os
These positions are considered employees of the Public Defender Corporations and not of Public Defender Services nor West Virginia.1 09 Furthermore, West
Virginia Code section 29-21-17 specifically forbids full-time attorneys employed by Public Defender Corporations to engage in the practice of law for personal financial gain."10
Public Defender Corporations are funded through Legislative general appropriations to PDS and subsequently through grants to Public Defender
Corporations."' Grants to Public Defender Corporations are disbursedl 2 after the approval of a funding application and proposed budget.
In the next section, discussion focuses on funding these indigent defense programs.
Financing Indigent Defense Programs
Funding for indigent defense programs in West Virginia primarily comes from Legislative Appropriations sourced from General Revenues Historical data shows that while appropriations have generally increased, there have been notable reductions during fiscal years 2000-2003, as well as periods of static budgets from 1995-1997 and 2008-2011 Additionally, executive orders that cut expenditures from these legislative appropriations are not reflected in the appropriation history.
Each year, PDS must fund both the court-appointed counsel and Public Defender Corporations from funds allocated by the State Legislature.' 1 4
In 2013, the Public Defender Services (PDS) in West Virginia received total allocations of $49,748,279.31, which included a significant supplemental appropriation of $11,500,000 on March 28, 2013 This funding was influenced by the Jewell v Maynard case in 1990, which led to increased rates and a subsequent need for additional funding, often sourced from special revenue, predominantly lottery funds Notably, the largest supplemental appropriation to the Agency was $21,000,000, as outlined in H.B 114 and S.B 1015 during the 79th Legislative Session in 2009 Furthermore, in 2010, appropriations of $11,000,000 were made from the State Excess Lottery Revenue Fund through H.B 118 and S.B 1018.
The competition for funding between appointed counsel and Public Defender Corporations has intensified, leading to the 2010 Legislature's decision to approve a budget bill with separate line-item appropriations Despite this measure, the necessity for supplemental funding for appointed counsel remains a pressing concern, a situation that has been addressed in previous years, notably since 1995.
Typically, questions arise concerning which system (appointed counsel or Public
Defender Corporations) is more efficient in using funding."' Figure 3 compares the appointed counsels' cost per claiml 1 6 against the Public Defender
Corporations' cost per closed case."
From 1993 to 2011, the Public Defender Corporation system proved to be more cost-effective than the appointed counsel system in providing legal representation for indigent individuals In 1993, the average cost per closed case for Public Defender Corporations was $190.25, highlighting the financial advantages of this system.
$396.25 for appointed counsel In 2011, the average costs were $299.32 and
$769.49 respectfully This represents a per-case increase of $108.88 for Public
Defender cases and $373.24 for appointed counsel Another way to consider this is that the gap between appointed counsel and Public Defender Corporations was
$205.81 per case in 1993, but grew to $470.17 by 2011, with Public Defender
Corporation attorneys remaining more cost effective 8 The increase is despite the fact that appointed counsel rates did not change between 1990 and 2011
115 This further meant that each system had to justify its existence which meant that sometimes negative information was provided by stakeholders to increase their claims in a particular system.
The 116 PDS aims to assess the cost per claim by identifying unique claims within the ACCTS electronic database, where all claims are recorded, monitored, and validated for payment However, this process often falls short as related claims may not be flagged due to issues like misspellings, misinformation, and erroneous charges Additionally, staff may not consistently perform duplicate searches against system information due to limitations and inefficiencies, particularly the time required for such searches Consequently, appointed counsel claims are likely reported at a higher rate, leading to a skewed analysis that favors a lower cost per claim.
In the annual reports by the Public Defender Corporation (PDS), the cost per claim is analyzed using three methods: open, represented, and closed cases While the total cost remains consistent across these methods, the focus shifts based on the case count The open cases method considers only new cases initiated within the fiscal year, whereas the represented cases method includes all cases with reported time during that year, encompassing opened, closed, and ongoing cases The closed cases method, however, solely addresses cases that reached a final disposition within the reporting year The authors advocate for comparing appointed counsel claims with closed cases from the Public Defender Corporation, as this approach yields more comparable characteristics for analysis and assumptions.
In 2013, statistical reporting on Public Defender Corporations highlighted case closures and the elimination of administrative time, as noted in McKinney's Annual Report A six-year comparison from FY 2008 to FY 2013 was provided to showcase the distinctions between appointed counsel and Public Defender Corporations, revealing significant differences in their operations and effectiveness.
Defender Corporations spend more time (approximately 40% more (16% appointed counsel and
Public Defender Corporations demonstrate a 27% higher presence in court compared to appointed counsel This efficiency stems from their ability to streamline legal processes, allowing them to spend less time on out-of-court activities and more time effectively advocating for their clients in court.
These figures, unadjusted for inflation, serve as an initial analysis of a system's financial effectiveness, highlighting the need to consider additional variables such as the processing of vouchers by PDS and the judiciary, as well as the associated audit costs.
0 AC EPDC Figure 3: Comparison of AC/PD Cost per Claim/Closed Case
The Legislative Auditor's Office in West Virginia conducts periodic reviews of government agencies and fund recipients to ensure public funds are used in accordance with legislative mandates These reviews help ensure compliance and identify opportunities for program improvement A 1999 report highlighted two key issues for enhancing indigent defense programs: the necessity for maximum utilization of Public Defender Corporations to manage costs and the need for better monitoring of compliance, improvement requirements, and the quality of legal services.
The Legislative Auditor estimates that expanding Public Defender Services by activating additional Public Defender Corporations could save between $2,205,706 and $7,468,789 As highlighted in Figure 3, the costs associated with appointed counsel significantly surpass these figures, indicating that the reported differences are minimal and do not fully capture the disparity between the systems Additionally, the quality of legal representation should also be considered when evaluating the true value of these services, with the difference in costs estimated to be around $250.
119 ANTONIO JONES, OFFICE OF LEGISLATIVE AUDITOR, PRELIMINARY PERFORMANCE REVIEW OF
PUBLIC DEFENDER SERVICES 1 (1999), https://pds.wv.gov/about/Reports/Documents/1 999%20PDS%20Performance%2OEvaluation.pdf.
The concept of savings is misleading, as I prioritize cost avoidance, meaning no funds are actually freed up for use Additionally, the reported "savings" only reflect direct costs and fail to account for other expenses, such as the processing of vouchers by the Public Defender's Service and the judiciary, as well as the time required to secure legal representation from private panels.
[Vol 122864 of Public Defender Corporations.121 Moreover, the need for supplemental appropriations and funding is necessary to cover the services already rendered by appointed counsel.1 2 2
The second point emphasizes the importance of monitoring, compliance, and quality within the appointed counsel system It highlights the fiduciary responsibility of Public Defender Services (PDS) to minimize abuses and ensure that legal representation meets established standards This responsibility includes implementing metrics to maintain quality, adhering to statutory appointment methods, and conducting comparisons between public defenders to ensure effectiveness.
Defender Corporations and appointed counsel.1 27
In 2004, the Legislative Auditor recommended that "[t]he Legislature Should Consider Enhancing Its Public Defense Repayment System to Help
Reduce the Financial Burden to the State in Providing Legal Representation for the Indigent and to Remove Inequities in Its Current Repayment System." 2 8
The Legislative Auditor has suggested that the Legislature introduce a public defender application fee, which could potentially generate around $5 million from indigent clients to be reinvested in their legal defense However, the idea of requiring additional fees for legal representation raises concerns about access to justice for those in need.
121 Id at 24 ("[I]t is more expensive to provide legal representation to indigent clients using appointed counsels as opposed to using state employed public defenders.").
The ongoing reliance on the Legislature for supplemental funding stems from a strategic decision to avoid substantial increases in initial appropriations to manage costs effectively As a result, the restructuring efforts have introduced additional strategies that successfully encouraged and facilitated the approval of Legislative appropriations.
124 Id The OLA noted that the circuit judges review and sign appointed counsel claims with the burden of PDS "to require and monitor compliance" within program specifications Id at 32.
The Restructuring of2008-2010
TENSIONS ARISING IN A MIXED SYSTEM: GIDEON'S (UN)BROKEN PROMISE?
Prior to Gideon's case, advocates for the right to legal counsel had already made significant progress in establishing effective legal systems across states like California and New York Gideon's case highlighted numerous past injustices and brought the issue of indigent defense to the forefront While the right to counsel mandates the provision of legal representation, challenges remain, particularly regarding the quality of that representation, which is difficult to measure quantitatively Without the ability to make comparisons, it becomes challenging to justify the existence of these legal systems.
The evolution of indigent criminal defense programs reflects societal shifts, particularly during oppressive government regimes where such programs are often absent As dissatisfaction with political and social conditions grows, societies begin to prioritize property rights and individual advancement, paving the way for a free market economy This transition ignites crucial discussions about the protection and public funding of fundamental rights, emphasizing the importance of legal defense for those in need.
16 Nicola Sacco, Bartolomeo Vanzetti (Warner, supra note 27, at 266), Charles F Stielow, and
Alfred Schwitofsky (Goldman, supra note 28, at 131-132).
Leaders of governing bodies, according to author McKinney, seek to evaluate program performance in relation to mission objectives and resource allocation, which is essential given the fiduciary responsibility tied to taxpayer funding This necessitates a system of checks and balances to ensure resources are effectively directed towards societal needs, as indigent defense competes with critical programs like highways, education, and healthcare Consequently, administrators of indigent defense programs face challenges in measuring various complexities, often relying on per capita figures as the primary metric However, employing GDP-PPP as a broader macro comparison, along with a more comprehensive analysis of smaller segments, is essential for a thorough evaluation.
Judicial Circuits) of West Virginia Unfortunately, this methodology is beyond the scope of this paper.
166 Ralph E McKinney, Jr., A Global Perspective on Funding the Right to Counsel: An
Overview of Criminal Defense Programmes 30 (June 21, 2012).
167 This extends to due process rights including liberty and freedom from unlawful imprisonment and, in some instances, death.
The West Virginia Law Review highlights the evolution of indigent defense programs, which initially relied on volunteers and gradually transitioned to private and contracted attorneys As costs rose, these programs adapted to find cost-effective solutions, leading to the employment of salaried attorneys who specialize in criminal law In West Virginia, a blended approach that combines salaried and private attorneys creates a comprehensive defense system that improves the overall quality of legal representation for defendants.
In certain instances, societal systems may regress, become deregulated, or even vanish altogether As a result, societies might realign their values to prioritize investments in essential programs like education, healthcare, crime prevention, and infrastructure Specifically regarding indigent defense, various limitations—such as eligibility criteria, funding constraints, and the quality of legal representation—are implemented to discourage its utilization.
Local officials control funding for the indigent defense system, often opting to allocate only minimal resources due to an unfunded mandate from the federal Constitution This leads to a system where many defendants feel pressured to plead guilty, as plea bargaining practices allow prosecutors to overcharge without facing penalties, further reinforcing the notion that only the bare minimum is needed for those presumed guilty.
One observer, David E Patton, notes that procedural differences in the Federal criminal system since 1963 have eroded many of the Gideon-era
Cost avoidance, as articulated by author McKinney, is a more effective concept than cost savings, as it emphasizes minimizing expenses through efficient program delivery without compromising the quality of legal services Unlike cost savings, which suggests that leftover resources can be reallocated, cost avoidance focuses on utilizing the least amount of resources to achieve maximum benefits, while acknowledging the opportunity costs involved It is important to note that, in this context, one cannot unilaterally cancel an individual's Constitutional Rights, distinguishing it from basic procurement and contract law.
According to author McKinney, the appointed counsel and Public Defender Corporation systems in West Virginia enhance the effectiveness of the indigent defense program For meaningful changes in organizational structure and procedures to take place, these systems must collaborate similarly to the United States Senate and House of Representatives.
874 assumptions-the emphasis now is less on trial advocacy and more on plea bargaining 1 7 5 In Patton's words,
Daily injustices in the legal system are overwhelming, presenting individuals with absurd choices: they can either plead guilty at their first appearance to secure immediate release or contest their guilt and face months of incarceration while awaiting trial Options are limited, as one must choose between posting bail or hiring a lawyer, but not both Furthermore, defendants are often pressured to accept plea deals or risk their fate among the many clients of an overburdened public defender.
The convergence of administrative delays, overwhelming caseloads, and insufficient resources has led to a system marked by inefficiency and coercion, ultimately resulting in the denial of constitutional rights Both Patterson and Schlesinger highlight these issues within the Federal and State systems, respectively.
The state's role in the public defender system is crucial in defining state action, as it governs the selection and appointment of public defenders and establishes criteria for indigency This involvement significantly impacts the volume of cases handled by public defenders, highlighting the state's substantial influence over their caseloads.
The State regulates the time public defenders can allocate to individual cases, which directly impacts the quality of representation for indigent clients Consequently, the actions of public defenders are considered state action, as the State actively participates in the representation and supports the public defender's efforts with its authority and resources.
According to these accounts, Patton and Schlesinger articulate that both the Federal and State systems have fallen short in achieving Gideon's promise.
"Other professions and industries-from engineering to aviation, medicine, and.
's David E Patton, Federal Public Defense in an Age ofInquisition, 122 YALE L.J 2578, 2581
1' John Pollock & Michael S Greco, It's Not Triage If the Patient Bleeds Out, 161 U PA L.
Simply increasing resources and developing more programs for indigent defense funding will not effectively address the underlying issues Instead, resources should be utilized efficiently to provide meaningful contributions to each case It is important to recognize that not every case requires an expert witness or investigator, as these can sometimes be counterproductive, especially in instances of same-crime recidivism Additionally, there are cases where legal representation may not be necessary at all.
51 In West Virginia, only eligible proceedings (e.g., jailable offenses) are provided counsel in certain instances.
78 Schlesinger, supra note30, at 1300 This is part of Schlesinger's analysis between Burton v.
Wilmington Parking Authority, 365 U.S 715 (1961), and Polk County v Dodson, 454 U.S 312
(1981) Although this was done some 33 years ago, his statement describes the current West
The Virginia Public Defender System (PDS) establishes eligibility criteria for determining indigence within its indigent program Additionally, PDS sets operational guidelines for Public Defender Corporations, detailing the required staffing levels and types of positions needed to effectively serve the community.
The legal profession lags behind car manufacturing in developing systems that ensure reliable outcomes without relying on individual professional characteristics.
CONCLUDING REMARKS
In West Virginia, the legal representation system mirrors Philadelphia's, featuring Public Defender Corporations as the primary choice for appointments, while appointed counsel addresses conflicts of interest and areas without active Public Defender Corporations Ongoing debates about which system offers superior representation and cost savings for the state often suffer from insufficient methodological rigor and weak evidence Although discussions on indigent legal representation are valuable, they frequently overlook the fundamental rights of the accused.
Constitution, and society is not.
With any publicly funded program, concerns arise over scarce resources.
Scarce resources necessitate careful allocation, as funding one program often results in another being underfunded This scarcity requires us to act in a fiduciary manner that prioritizes the interests of the public rather than catering to special interest groups Ultimately, we must take decisive action to ensure responsible resource management.
There is a simple solution to the funding crisis that seems to occur each year during the West Virginia Legislative session-"how much supplemental
188 Emily Rose, Note, Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-
Defense Systems, 113 MICH L REv 279, 290 (2014) Rose suggests that the Sixth Amendment right to speedy trial is a better basis for challenging underfunding in indigent defense Id at 279.
Moreover, the speedy trial can reduce caseloads for attorneys providing indigent defense services and create a greater need for prosecutors to resolve cases Id at 314 Richard Klein, The Eleventh
Commandment: Thou Shalt Not Be Compelled to Render the Ineffective Assistance of Counsel,
In the article published in the Indiana Law Journal, Klein advocates for the greater assertion of Sixth Amendment rights rather than relying on claims of ineffective assistance of counsel He emphasizes that the issue lies not with individual attorneys but with the systemic flaws that require reform.
89 DO THE RIGHT THING (Universal Pictures 1989).
In West Virginia, the Public Defender Services (PDS) faces challenges in assessing its funding needs due to a decentralized system where judicial circuits appoint legal counsel This structure allows appointed counsel to operate independently, often resulting in minimal motivation to regularly communicate their financial requirements to PDS Consequently, PDS can only rely on annual reports from appointed counsel regarding their accrued receivables, complicating the anticipation of claims and overall funding needs.
Public Defender Corporations submit annual operational plans outlining personnel compensation and expected expenditures, along with monthly reports on spending and resource needs, without the need for voucher processing by PDS or the court These corporations can adopt a team approach to defend the accused and are free from concerns about political retaliation when advocating in court Additionally, the existence of a Public Defender Corporation in a community strengthens the societal commitment to upholding constitutional rights.
A Public Defender system offers superior legal representation, more efficient resource utilization, and easier management compared to an appointed counsel system The authors also suggest that an appointed counsel system can effectively complement a Public Defender system.
190 Each year around June, PDS issues a request for appointed counsel to report their Accrued Liability to the Agency The response to this request is not great.
Salaried Public Defenders, numbering 191, do not receive compensation for extra hours worked, resulting in a lack of financial incentive to inaccurately report their hours In my observation, attorneys within Public Defenders Corporations tend to underreport their hours, as their main priority is providing effective defense for indigent clients rather than balancing their efforts between client representation and filing claims against the State.
192 See PATRICIA PURITZ & ROBIN WALKER STERLING, NAT'L Juv DEF CTR., WEST VIRGINIA:
AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN JUVENILE
DELINQUENCY COURT 5 (2010), https://njdc.info/wp- content/uploads/2013/1 1/WestVirginia Assessment-FINAL.pdf ("In each county visited, there was a clear emphasis on the importance of civility, inside and outside the courtroom, that in practice seemed to translate into less diligent legal advocacy by defense attorneys In some of the counties that operate on a contract system, other courtroom actors have the power to appoint attorneys to cases; defense counsel in those counties expressed an unwritten rule that they should be careful not to cultivate a reputation as 'too adversarial or too aggressive,' and that often providing even minimal or basic legal assistance, such as filing motions or taking cases to trial, was considered adversarial or aggressive.").
A key aspect of protecting constitutional rights is the establishment of a stable Public Defender Corporation, which relies on several critical components Ensuring long-term employment helps retain skilled personnel, enhancing efficiency in case processing Owning property transforms the organization into a community stakeholder, fostering a vested interest in clients' cases Additionally, valuing employees as individuals is vital for building strong relationships within local communities In contrast, immoral or amoral management practices can undermine the system, leading to conflicts and inefficiencies.
878 enhances its value by managing conflict of interest cases, overflow cases, and providing general assistance to the program While organizations may occasionally require temporary support and choose to outsource certain functions, it is essential to remember that outsourcing all operations is not necessary The fundamental principle remains "justice for all."
194 METALLICA, AndJusticeforAll, on AND JUSTICE FOR ALL (Elektra Records 1988).