The Cost Of Conflict

A few Southwest Virginia courts are funneling thousands of tax dollars to a small number of private attorneys who serve as prosecutors when a commonwealth’s attorney has a conflict of interest.

Appointing private attorneys as prosecutors is an uncommon practice in courts throughout the state – except in a corner of Southwest Virginia, where in the past two years, private attorneys prosecuting in seven counties on the state’s rural fringe have billed for $236,000.

That amount represents the lion’s share – 62 percent – of what all private attorneys in the state have billed for prosecutorial work during those years.

The disproportionately large costs from a small rural area reveal how geographic isolation and economic pressures are influencing local judicial policy. The costs also raise questions, for some, about whether subsidizing private attorneys is the best way to resolve conflicts of interest in the courts.

Virginia law requires a judge to appoint a substitute prosecutor when a commonwealth’s attorney has a conflict of interest in a case, such as a relative charged with a crime. State-salaried prosecutors cannot charge for serving as a special prosecutor, beyond reimbursement for out-of-pocket expenses.

But if the judge cannot find another state prosecutor to fill in, the court can appoint a private attorney – usually one with experience as a prosecutor – at a $90-an-hour rate set by the Virginia Supreme Court. There is no cap on billable hours.

The payments to private attorneys come out of the Virginia Supreme Court’s Criminal Fund, but they are not listed among the fund’s expenses on a Web site maintained by the state’s Auditor of Public Accounts.

The APA has audited the Supreme Court’s accounts but has not closely examined payments to special prosecutors – a footnote in the high court’s general fund, which stood at $25.7 million in 2008.

Vouchers submitted by private attorneys to the state Supreme Court, obtained and reviewed by the Bristol Herald Courier, reveal a hitherto unknown judicial fault line that sets seven counties apart from the rest of the state in how they handle conflicts of interest in their courts.

That line zigs and zags along the mountainous boundary that separates Washington County from Scott County, tracing the northeastern edge of Russell and Tazewell counties. It falls miles to the west of the region’s main traffic artery, Interstate 81.

To the east of the line, courts in Bristol, Washington and Smyth counties have not appointed a private attorney as special prosecutor in the past two years. When a commonwealth’s attorney has had a conflict, judges have found a substitute state prosecutor. Total cost to the state in the past two years: $3,000.

To the west of the line, in extreme Southwest Virginia, private attorneys serving as prosecutors in Lee, Scott and Wise counties have billed the state $164,000 in the past two years; the state has reimbursed substitute state prosecutors in those courts about $1,000 during that period.

And rounding out the state’s southwestern toe, private attorneys in Buchanan, Dickenson, Tazewell and Russell county courts have billed the state nearly $72,000 in the past two years; the state has reimbursed visiting commonwealth’s attorneys there for $1,500 – mostly in Russell County.

Joel Branscom, commonwealth’s attorney for Botetourt County, northeast of Roanoke, and the president of the Virginia Association of Commonwealth’s Attorneys, expressed concern that Southwest Virginia courts routinely rely on private attorneys to prosecute cases.

When informed of the totals, Branscom bemoaned that private attorney bills could fund additional staff positions in commonwealth’s attorney’s offices that desperately need staff.

“It’s concerning to think that there aren’t prosecutors who would take those cases,” Branscom said by phone. “My question would be, ‘How are we deciding that no commonwealth’s attorney or assistant commonwealth’s attorney in the state of Virginia will take them?’ ”

Prosecutions, large and small

The largest payouts to private attorneys in the past two years have come from cases in Wise County, where special prosecutors have billed $125,000 to the state.

“Wow,” said Wise County Commonwealth’s Attorney Ron Elkins, when informed of the total. “That’s good work if you can get it.”

The largest individual chunk of that total has gone to David Childers, an Abingdon attorney who prosecuted a gambling ring based in the town of Appalachia, in which a former member of the Wise County Sheriff’s Office was involved.

Childers, who was appointed while working as an assistant prosecutor in Wythe County, successfully petitioned to stay on the case when he left the office and opened a private practice. He billed the state $45,000 for his hourly rate, plus meals and mileage, between July 2007 and February 2008.
The case took Childers and his co-counsel, Lee Harrell, most of 2007 to wrest convictions for all 10 defendants, Childers said in an interview. He was still working on the case, securing an asset forfeiture from one of the defendants, when contacted last week by the Herald Courier.

Childers’ fee, like that of most private attorneys, is generally higher than $90 an hour. Asked why he would take on a case at a significant discount, Childers said: “I love doing it. I love prosecuting.”

He would not say why he left his previous job as a prosecutor.

“It’s an important job that prosecutors do,” he said. “I feel as though I’m contributing – and this sounds cliché and corny – to the lawfulness and safety of folks in Southwest Virginia.”

It is a well-worn cliché among private attorneys who serve as prosecutors.

“If the court requests me to do something, it’s a duty and an obligation to fulfill,” said Michael Carrico, a Gate City attorney who has guested as a prosecutor in at least two dozen cases in Lee County over the past two years. “And they pay me,” he added.

Carrico, a former commonwealth’s attorney in Scott County, currently serves as the attorney for Gate City and prosecutes cases for the municipality. When a judge has had to appoint a private attorney as special prosecutor in Lee County, the court almost always taps Carrico, state billing records show.

Unlike Childers, Carrico’s cases tend to be small-ticket, misdemeanor affairs, rarely exceeding a day’s work. He spent six hours in and out of court prosecuting a relative of Lee County Commonwealth’s Attorney Shawn Hines in January, securing a guilty plea for driving under the influence. Cost to the state: $540.

Carrico billed for 10 hours when he prosecuted Hines’ sister for a probation violation last August, revoking time from a suspended sentence for petit larceny. Cost to the state: $900.

Carrico’s most work-intensive case in recent years was prosecuting a former Lee County lawman on multiple charges of uttering, grand larceny and firearms charges. The lawman pleaded guilty and was sentenced to 15 years with 4½ to serve, court records show. Cost to the state: $6,400.

Between June 2007 and January 2009, Carrico billed approximately $26,400 to the state for Lee County prosecutions – $3,000 more than what it cost the state to reimburse commonwealth’s attorneys across Virginia for special prosecutions in all of financial year 2008.

Conflict economics

One person unfazed by the costs of retaining private attorneys as prosecutors is a man who signs their vouchers.

“In our area, all of our commonwealth attorneys’ offices are, due to many budget constraints, understaffed and rarely able” to take on a case in a neighboring jurisdiction, said John C. Kilgore, a Scott County Circuit Court judge, who – in the small legal universe of Southwest Virginia – coincided with Carrico while both worked in the Scott County Commonwealth’s Attorney Office.

Asked why Carrico is so often appointed as a prosecutor, Kilgore said he did not know, but that Carrico is one of the few private attorneys in the region with experience as a prosecutor.

Kilgore’s observation about chronic understaffing does not show up in data from the Virginia Compensation Board, which funds positions in a commonwealth’s attorney’s office according to its caseload.

The VCB’s staffing standards for this year show that Scott County ranks 30th among 120 localities in need for additional attorney positions. But the other courts in Kilgore’s circuit fall farther down the list: Wise County, with nine attorneys, is ranked 52nd, but in fact has a larger staff than the VCB recommends; and Lee County, with three attorneys, is ranked 64th.

“It is more often that Wise is able to tell me that they can” field a substitute prosecutor, Kilgore said, when told of the VCB data.

But the data do not tell the full story.

Hines, Lee County’s prosecutor, has struggled to fill positions that have been approved for funding by the VCB.

Hines ascended to top prosecutor position in 2005, when his predecessor, Tammy S. McElyea, was appointed circuit court judge. That left Hines as a one-man department, handling juvenile, misdemeanor and felony cases.

“It was not fun,” Hines wrote in an e-mail to the Herald Courier.

Though the VCB has approved funding for three assistant prosecutors since 2005, “they have remained unfilled for large portions of time,” Hines wrote.
He limped along with one full-time assistant until the end of 2008, when he was able to hire a second. All of his hires have been freshly minted graduates of the Appalachian School of Law in Grundy, Va. And he still has not been able to fill a third approved position.

It is difficult, Hines said, to spare a staff member to prosecute a case in another jurisdiction – especially when the case involves more than a handful of hours.

Kilgore, when faced with a work-intensive prosecution that a local commonwealth’s attorney cannot handle, has shown a willingness to look beyond Southwest Virginia. In 2004, he contacted Branscom, the Botetourt County prosecutor, to investigate and prosecute a case of political corruption that implicated the Gate City mayor.

But there are cases, Kilgore said, in which he will appoint a local private attorney rather than ask a commonwealth’s attorney elsewhere in the state to substitute.

“It doesn’t make a lot of sense to have someone from Wytheville come down for a misdemeanor trial for a couple of hours,” Kilgore said of the 100-mile drive to Gate City.

Yet Kilgore’s judicial counterparts one county over have looked even further afield.

In October, Christopher Russell, the commonwealth’s attorney in Buena Vista, made the 176-mile trek to Abingdon to prosecute the son of Washington County Circuit Court Judge C. Randall Lowe for driving under the influence. Cost to the state: $207.

Russell is no stranger in Southwest Virginia courts. He took on a Smyth County DUI case in May 2008 against former Wythe County General District Court Judge M. Keith Blankenship. Cost to the state: $150.

And Russell made multiple trips to Abingdon between April and June 2007 to prosecute Lowe’s former secretary , who was accused of embezzling tax dollars from the judge. Cost to the state: $343.

In all, the dollar total of Russell’s three prosecutions comes out to less than a private attorney could bill for eight hour’s work as a special prosecutor.

Asked why he thought the 28th Circuit courts did not retain private attorneys as prosecutors, Kilgore said: “I would just assume that commonwealth’s attorney offices are more frequently able to be designated in that particular circuit.”

A question of policy

The practice of local courts appointing private attorneys to prosecute cases dates back to the early 1990s, when it was applied by Tazewell Circuit Court Judge Donald Mullins, who left the bench in 2001.

“His attitude was, each commonwealth attorney’s office handles a tremendous amount of cases,” Tazewell prosecutor Dennis Lee recalled in an interview. “Ours is among the highest caseload in Virginia. So he started the practice of appointing local attorneys.”

With eight attorneys including Lee, Tazewell ranks ninth among Virginia’s neediest commonwealth’s attorney’s offices for additional positions, according to VCB data. Its caseload, according to the VCB formula, suggests it should have three more assistants.
In the past two years, private attorney-prosecutors in Tazewell courts have billed the state slightly more than $32,000.

Teresa M. Chafin, chief judge of the 29th Circuit, has asked commonwealth’s attorneys in her circuit to check with their counterparts in the region to see if they can fill in, Lee said. Chafin did not respond to several messages left with her secretary seeking comment.

“If we cannot find anyone, we’ve been asked to contact locally around here,” Lee said, referring to private attorneys.

Asked if his office looks for substitute prosecutors further afield, he said, “Not as a rule.”

In the 30th Circuit and District courts, both Hines and Elkins, the Wise County prosecutor, said they simply inform the judge of their conflict and let the judge choose a substitute.

In the 28th Circuit and District courts, commonwealth’s attorneys regularly call one another and trade places when one has a conflict, said Bristol prosecutor Jerry Wolfe.

Wolfe, when recusing himself from a case, informs the presiding judge what other prosecutor is available to substitute. Asked if this is stepping too far into a case when he has a conflict, Wolfe laughed.

“I don’t see that as being an appearance of impropriety,” he said. “If they think that commonwealth’s attorneys are that easily influenced, I think they’re probably a little misguided.”

Branscom, of the Virginia Association of Commonwealth’s Attorneys, is skeptical that paying private attorneys is a better way to handle conflicts than calling on prosecutors around the state.

He first looked askance at the practice when he heard that the bill for two special prosecutors on a vote-rigging case in Appalachia – predating Childers’ case – approached $150,000. Branscom prosecuted a somewhat similar case in Gate City, which spanned three years, included three jury trials and “hundreds and hundreds” of hours of work. His bill to the state: about $3,800, he said.

“I asked the Virginia State Police to do most of the footwork,” he said. “I could have gone down and done all 200-some interviews. That would have taken some time and would have been perfectly legitimate – it just wouldn’t have been efficient.”

Implicit in this is his critique of the private attorney-prosecutor system: “If I’m making more money by doing [field interviews] than by sitting in my office, I might be doing it that way,” he said.

Most of the special prosecutor vouchers obtained by the Herald Courier did not come with time sheets that itemized expenses, and it was not possible to determine whether local attorneys are abusing the system.

Edward Macon, a senior Virginia Supreme Court official asked to comment on the payments to private attorneys in the region, e-mailed: “I am not familiar with particular circumstances in those circuits/districts.”

When informed of how much of the total cost came from a few Southwest Virginia courts, Walt Kucharski, Virginia’s auditor of public accounts, said: “Good lord.”

“Why it’s higher in particular jurisdictions is not something we’ve looked at,” Kucharski said by phone.

His office screens invoices from the Supreme Court’s general fund at random, looking for reasonableness of the expenses.

The APA does not have a standard rubric to measure what is reasonable. To determine that, Kucharski said, “I ask an attorney.”

Asked to elaborate, the auditor said, “whoever the Supreme Court suggests we talk to.”

Branscom, while he did not outright accuse any private attorneys of running up their bills for personal profit, believes relying on them to prosecute cases is a misuse of funds. He rejected the notion, expressed by several local judges and prosecutors, that a commonwealth’s attorney would not be willing to take on a case a hundred miles away.

“Prosecutors like to get out and see different parts of the state,” he said. “Our association would help in that process. I know a lot of people that I can refer somebody to if they were having trouble finding a special prosecutor.”

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