Public defenders say rules changes could mean more costs, work

By Jessica M. Karmasek | Jul 26, 2010

CHARLESTON -- Public defenders in West Virginia say proposed revised rules to the appellate process could result in increased costs and could mean a heavier workload.

John Rogers, executive director of the state's Public Defender Services, wrote in comments filed last Monday that the costs added by the revised rules are a "serious burden."

The proposed rules provide for a decision by the Supreme Court on the merits of every appeal.

He noted the state's court system currently faces an estimated $11 million deficit -- more if the state's Legislature fails to act to reduce its Other Post-Employment Benefits liability.

Rogers said the revised rules appear to require that transcripts and the record, along with supporting documents, all be included in an appendix.

"Although electronic filing may at some time in the future reduce costs, the cost of evaluation of the record and gathering of relevant documents will still exist," Rogers wrote in comments filed earlier this month.

"Pagination and indexing alone, assuming court reporters and Circuit Court Clerks do not paginate and index (at least for the entire appendix), will involve significant staff time."

The actual printing and binding of the required copies also will add costs, he said.

Local printers, he wrote, do not have experience in production of such documents, forcing them to be done in Richmond, Va. According to estimates provided to him, the final printing and binding would cost, on average, about $400 per appendix.

Rogers also took issue with staffing.

"With respect to additional staff, the assumptions made contemplate regional appellate defenders who would routinely spend time in several counties... reviewing court files, gathering documents, ensuring proper pagination and indexing and supervising minimal support staff," he wrote.

In an attached summary, the public defender group shows a cumulative cost of nearly $1.2 million resulting from the revised rules.

The Fayette County Public Defender's Office, in the state's 12th Judicial Circuit, also took issue with the revised rules. The workload would be especially burdensome, they said.

The office has four attorneys in a two judge and four magistrate circuit. They have three yearly terms of court.

Each attorney, the office wrote, averages four trials per year. Each attorney also is assigned an average of 12 indictments per term of court. Additionally, each attorney in the office handles preliminary hearings on new felony charges, misdemeanor hearings, juvenile delinquency and status offense petitions, and abuse and neglect cases. The office also handles city court matters and defends respondents in mental hygiene hearings.

"A majority of our concerns are not only concerns as to our ability to comply with the new rules, but also that absent some adjustments to the rules the impossibility that appellate counsel could comply or would be willing to accept appellate work from our Circuit," it wrote.

Because of the office's case load on a trial level, appellate counsel often is sought on behalf of their clients.

The public defender's office also points to the cost of the new rules.

"An indigent criminal defendant has the right to counsel and at no charge, the transcripts necessary to perfect an appeal," it wrote. "To require appellate counsel to make all the copies, properly bound, for the Court does not appear to be consistent with these rights."

The office asked that the rules be modified to have the court arrange for the copying and binding of the record for those indigents appealing a criminal conviction.

Public defenders in Logan County, the state's 7th Judicial Circuit, had similar concerns.

Don McDaniel and Dwayne Adkins, in comments filed earlier this month, wrote to express their "strong concern and frank disapprobation" for the revised rules.

The two have practiced law a combined total of more than 50 years, they said.

The new rules, they wrote, would create even more work for smaller offices and firms.

"Whereas currently the practice of law in most small West Virginia firms is taxing and even fatiguing; the new rules which will require a great deal of organizational work and compilation of information should cause the average small office to never file an appeal if at all possible," the defenders wrote.

They said the new rules will cause "a tremendous chilling effect" on this area of the law, and that most solo practitioners or small offices "will eschew the endeavor of even attempting an appeal to the West Virginia Supreme Court."

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