HD60 - Capital Representation of Indigent Defendants

Executive Summary:
In 1998, the Virginia General Assembly passed House Joint Resolution 190 directing the Virginia State Crime Commission as lead agency in conjunction with the Office of the Executive Secretary of the Supreme Court, the Virginia State Bar, the Virginia Bar Association and the Public Defender Commission to study the capital representation system for indigent defendants in the Commonwealth. Specifically, HJR 190 requested that the Crime Commission evaluate:

• The quality of Capital representation of indigent defendants in Virginia;

• The standards for qualification of counsel promulgated pursuant to Code of Virginia § 18.2-163.8; and

• The feasibility of requiring the public defender offices to defend all indigent capital murder defendants who request representation throughout the Commonwealth.


Generally, the Crime Commission found that:

• The overall state of the system for representation of indigent capital defendants is good. Also, the pool from which court appointed counsel is drawn is now large enough that the standards for qualification as court appointed counsel can be enhanced without causing the system for indigent capital representation to suffer form a lack of available attorneys.

• The Public Defender Commission does not currently evaluate attorneys on the basis of whether they have demonstrated "proficiency and commitment to quality representation" as required by the standards promulgated pursuant to Code of Virginia § 19.2-163.8(E).

• The existing public defender system would not bee able to absorb the workload that would be created by requiring it to represent all indigent capital defendants in Virginia. The cost of developing a statewide capital representation unit for indigents would require an initial expenditure of $1,448,180.

• The creation of a single unit for representation of indigent capital defendants would likely result in ethical conflicts in situations in which one crime resulted in multiple indigent capital defendants.

• Further, a traveling cadre of public defenders would be unfamiliar with local environments, which would mean that local counsel would also be needed.

• Finally, an inconsistency between the number of people charged with capital crimes and the number of people indicted on capital offenses exists in Virginia. This inconsistency is a Capital crime, and that charge is later reduced or amended. This situation results in court appointed counsel being paid that capital defense rate for the duration of a trial in which the defendant is not charged with a capital crime.


Based on these findings, the Crime Commission recommends:

• The Virginia State Bar, in conjunction with the Public Defender Commission revise the standards for qualification as court appointed counsel with the purpose of enhancing the caliber of attorneys available for appointment in capital cases.

• The public Defender Commission, in conjunction with the Virginia State Bar explore and implement means of ensuring that all attorneys who are available for appointment to capital cases are competent to represent capital defendants. (However, these means should not require local bar associations to act as peer review groups for court appointed attorneys.) The Virginia State Bar and the Public Defender Commission should make it known to judges that, at present, judges provide the only subjective review of attorneys who are listed as available for appointment in capital cases.

• The Commonwealth not establish a statewide capital defense unit that would be charged with the representation of all indigent capital defendants.

• That § 19.2-71, Code of Virginia be amended to prohibit police officers from filing capital charges without first obtaining authorization from the attorney for the Commonwealth.

• The Virginia Sentencing Commission, Virginia's Commonwealth Attorney Offices, and the Supreme Court of Virginia Revise their record keeping requirements to foster consistency in reporting information on capital crimes.