[Posted March 5, 2010] A guy can’t even take a vacation these days without the sky falling: The Indigent Defense Commission has today notified the Appellate Defender’s Office that it will defund that office because of the state’s economic problems. The move will be effective June 9. In preparation for the closure, the Commission will immediately stop referring cases to Jane Chittom and her capable staff, and will make plans to refer her existing caseload back to the public defenders’ offices whence they came.

This is stunning news to me, despite the dire warnings out of Richmond that all state agencies will share the burden of funding cuts. It means that appeals for indigent defendants will now be handled at the local level (the individual public defenders who represented the defendants at trial).

Why is this noteworthy? The PD’s handle many appeals right now; what’s so bad about making them handle those that would otherwise go to the AD’s office?

Let me count the ways.

1. Public defenders aren’t exactly oozing free time. They’re extraordinarily busy with their trial dockets, to the point that they often have precious little time and resources to devote to proceedings in circuit and general district courts. Now, instead of their having insufficient time to handle their trial dockets, they’ll have insufficient time to handle their trial and appellate dockets.

2. Sometimes the PD’s office simply can’t represent a given appellant. Two examples come immediately to mind. First, the PD often is called upon to represent co-defendants, and if there is any possibility of a conflict there, one of those has to be referred out. On appeal, the AD generally absorbs that “extra” defendant. Second, it is by no means unusual for a convicted defendant, ever eager to find someone to blame for his ill fortune in the trial court, to file a Bar complaint against the PD who handled the trial. In that event, the AD can represent the appellant without a conflict. If the office is closed, the state will have to appoint private counsel for both types of appeals.

3. Let’s not mince words here. I have tremendous respect for trial lawyers, but when it comes right down to it, who is likely to do a more effective job a handling an appeal – someone who does nothing but appeals, five days a week, or someone who mostly handles trials, and takes a case up on occasion because the client demands it? The State Bar won’t let us use the S-word, but is there any doubt that the AD’s specialize in appellate advocacy? Is it any surprise that they will do a better job than their trial-court brethren in meeting deadlines, complying with briefing schedules, and making a truly appellate argument?

4. Lest you think that the appellants and the PD’s will absorb all the effect of this move, consider the appellate jurists. They now get master-level briefing and argument from Jane’s office, in those cases the AD handles. They will now see a different level of advocacy in those cases, and they’ll have the ultimate duty of sifting through the record and the arguments to make an informed decision. It’s quite foreseeable to me that this will cost those jurists extra time that they don’t have, either.

I am not trying to berate public defenders here; as I noted above, I greatly respect what they do, and I understand the pressures of their caseloads. I also recognize that handling appeals is something of a side line for them, and they simply aren’t going to be as effective as the guys who do it every day.

My understanding is that the IDC will meet next week. Perhaps there’s time yet to turn this short-sighted decision around. We owe all of our citizens the right to a fair trial; a Florida guy named Gideon made sure of that back in the 60’s. If we are to provide indigent Virginians with due process of law, including the right to effective assistance of counsel on appeal, we shouldn’t do so by overburdening the PD’s with extra work and by letting the established appellate specialists go. This decision will help to define where we are as a society.