Chesterfield judges will stop appointing cases to public defenders amid 'lack of attorneys'

CHESTERFIELD COUNTY, Va. -- The Chesterfield Public Defender's Office will not be appointed any new cases by circuit court judges until further notice, according to an order issued Chief Judge David Johnson.

The order came after the judges were notified by the Chief Public Defender that a "current and historically persistent lack of qualified and suitable attorneys assigned to that office render it unable to provide adequate representation for indigent defendants charged with jailable offenses."

The public defender's office requested that it not be appointed to represent any new clients until at least October 2024.

“It’s a bit of a head scratcher," Maria Jankowski, executive director of the Virginia Indigent Defense Commission, said about the judge's order. "Issuing an order is pretty unusual. We've had public defenders in Virginia for over 50 years, and I'm not aware of any court feeling the need to enter an order."

CBS 6 legal analyst Todd Stone, a criminal defense attorney and former prosecutor, seemed to agree.

“I don't know that I can recall a court order making this sort of a determination before," Stone said.

Judge Johnson's order stated that “inconsistency in the appointment of public defender or private court-appointed counsel… creates at least the undesirable appearance of a two-tiered system of indigent defense services."

He said judges also found over time that "uncertainty" in the appointment of private counsel to represent indigent defendants "significantly erodes the list of counsel available and willing to serve as court-appointed private counsel."

Stone said his takeaway from the order is that the judges would like to see consistency across all courtrooms regarding how defendants receive legal representation.

"In one courtroom, a judge might appoint the public defender's office. In another courtroom, they might appoint private counsel," Stone said. "Justice suffers when there is an unequal treatment of defendants in the justice system, and it's really important that the perception be there and that there's a fairness across the board with everybody, and I think that's what this order is trying to drive home.”

The Chesterfield Public Defender's Office was established by the state in 2021, serving people accused of crimes who cannot afford to hire a private attorney.

But Jankowski said the office's creation was not meant to replace private counsel who take court-appointed cases.

“I think there's a misunderstanding in Chesterfield that somehow the public defender's office supplants the private bar. That is not the case, and it is not the best practice. The best practice and where you see jurisdictions thriving is when you have a well-funded public defender, and the private bar is adequately and properly compensated," Jankowski said.

She added that's why the Virginia Indigent Defense Commission (VIDC) successfully advocated for fee cap increases for court-appointed attorneys, which will allow them to get paid for a bigger portion of the time they spend defending clients. The change will take effect in January.

Another change in the law, which took effect this month, can exempt public defenders from being appointed cases if the office determines its active caseload is too overwhelming.

Last year, CBS 6 spoke with Chesterfield's Chief Public Defender My'chael Jefferson-Reese when she first requested a pause in cases in General District Court, which was granted by the chief judge.

“We do great work here, but we don’t want to take more cases than we’re able to represent effectively," Jefferson-Reese said.

WATCH: Chesterfield public defenders in need of relief amid caseload, staffing woes

At the time, she cited staffing shortages, which Jankowski said remains a challenge.

While the state provides a starting salary of $73,000 for public defenders, the county does not supplement pay like it does with prosecutors.

“Chesterfield is a real outlier as a big metropolitan office that doesn't have salary supplements," Jankowski said.

Jankowski said every jurisdiction in Northern Virginia supplements public defender pay, along with most of the Hampton Roads area.

She said Chesterfield's neighbor also offers pay parity, creating hiring competition.

“Richmond very generously supports the public defender's office, and so you can go across the river and make a lot more money in the Richmond Public Defender's Office. I'd be a fool not to think that that doesn't make a difference," Jankowski said.

According to Chesterfield's most recent budget, the county gives the Commonwealth Attorney's Office $6.6 million for personnel and nothing to the public defender's office.

This year's budget showed the county funded a new prosecutor position for $111,000 and a legal secretary for $73,000. The county noted these positions were created due to a need for more attorneys to handle current caseloads and previous underfunding of support staff.

Chesterfield Commonwealth's Attorney Erin Barr said her office's minimum salary was $76,000, and while 41 positions are allotted to her office, current caseload data calls for 52 attorneys.

CBS 6 asked Chesterfield Board of Supervisors Chair Jim Holland whether the board would consider supplementing salaries for public defenders, and he did not respond.

Stone believes historically, there's been a societal misconception that public defenders negatively affect justice. He called that "backwards."

“The fact is that when you don't fund public defenders well enough, then justice suffers. Innocent people might go to jail that don't belong in jail. People might go for longer than they should be going," Stone said.

Judge Johnson's order will remain in effect until all judges unanimously decide to amend it or until a judge modifies the appointment of cases assigned to that specific judge.

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