NEWS- Poor? Don't get arrested in Fluvanna

Sandy Weaver's out-of-work, 45-year-old son can't get a court-appointed attorney in Fluvanna because he lives with his mom.
PHOTO BY WILL WALKER

"You have the right to remain silent." Everyone who's ever watched Cops knows the first line of the Miranda warning and its follow-on that stems from another Supreme Court Case, Gideon v. Wainwright: "If you cannot afford a lawyer, one will be provided for you at government expense."

But that's the dicey part if you happen to be an indigent defendant in Fluvanna's General District Court, a court that interprets the Supreme Court's Gideon ruling and the Code of Virginia unlike other courts– even the Fluvanna Circuit Court in the same building.

Michael Davis, 45, found that out when he appeared in court seeking counsel for four charges he'd incurred June 23, including a Class 6 felony for unauthorized use of a vehicle, as well as willful destruction of property and driving with a suspended license.

Davis has a long history of drug and alcohol abuse, and because of an injury in the '90s, he doesn't work, says his mother, Sandy Weaver. At a July 2 bond hearing, Davis said he had no money and needed an attorney. 

But, according to his mother, the General District Court clerk denied Davis an attorney because he lives with his parents, and his mother has a job and his father has retirement income. 

Sandy Weaver was aghast that the court thought she should be responsible for her 45-year-old indigent son. "The clerk said they consider the income of all members of the household," says Weaver. "That's not right."

Davis is in jail and his mother has not bailed him out. "I have spent so much money on him," she says of her son's long history of legal woes in the past, including six years in prison. Still, because he's looking at jail time again, she wants him to have legal counsel.

"I'm not allowed to talk to the press," says Fluvanna General District Court clerk Robin Lynne Elliott, who refused to elaborate about how eligibility for a court-appointed attorney is determined.

"The only thing I can do is tell you to talk to the judge," she says. Roger Morton, the presiding judge for Fluvanna General District Court, requested the Hook's questions in writing and then referred the paper to the Code of Virginia and the Procedures and Guidelines Manual for the Office of the Executive Secretary of the Supreme Court of Virginia. "I do not feel it would be appropriate for me to comment further," writes Morton. 

General District courts cannot conduct felony trials; those cases go to Circuit Court. In Fluvanna, the Circuit Court judge decides who gets a court-appointed lawyer and frequently appoints counsel to defendants who were denied a lawyer in the lower court, says Bouson E. Peterson Jr., the Circuit Court clerk. 

"I've never seen a judge in my court take the interpretation that the parents' income is counted as household income for an adult child for purposes of a court-appointed attorney," says Peterson. "My judge doesn't even ask what is the income of parents."

And it's not just indigent adults living with their parents who are denied counsel in Fluvanna General District Court. "I've heard of cases where roommates not even kin are taken into account for household income," says Peterson.

Commonwealth's Attorney Jeff Haislip confirms that non-related roommates can keep a defendant from qualifying for legal counsel in the Fluvanna lower court. "There appears to be a difference in the way the two courts interpret the same form," says Haislip. "That concerns me."

The form is one generated by the Supreme Court of Virginia to determine eligibility for indigent defense service, and underneath a box for "number of people in the household" is a parenthetical note: "'Household' means all persons related or unrelated who live together as an economic unit."

So does that mean roommates or parents count toward the household income of adult defendants? 

"I don't have a definitive answer," says Virginia Supreme Court spokesperson Katya Herndon. She refers to statute 19.2-159 in the Code of Virginia. "The statute would be open to the judge's determination of whether the individual is eligible," she explains.

The statute specifies that spouses' incomes may be considered for household income– but makes no mention that parents and roommates' income could be a factor in eligibility for court-appointed counsel.

Jim Hingeley, Charlottesville's public defender, suggests the Fluvanna court may be "misconstruing" the guidelines in counting parents and roommates. "I think that's wrong," he says. "That doesn't make sense to me. Suppose you live with a millionaire. That doesn't make you a millionaire." 

"Anytime it affects someone's liberty, I'd rather err on the side of a court-appointed attorney," says Commonwealth's Attorney Haislip. "Even as a prosecutor, I don't want to try someone who should have had counsel. It makes the court system run smoother and fairer. I don't get any satisfaction out of beating a pro se defendant who should have had counsel."

Meanwhile, Michael Davis has another court date August 20– without a lawyer.

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