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Thursday, February 01, 2007

Prosecution in Appalachia comes at a special price

The bill is approaching $150,000 for a pair of private attorneys from Norton who served as special prosecutors.

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As a massive corruption and election fraud case in Appalachia wrapped up Wednesday, the bill for two special prosecutors was approaching $150,000.

Cleaning up the town's government "was almost a full-time job," Norton attorney Tim McAfee said. McAfee and Greg Stewart, a second private attorney from Norton, were appointed special prosecutors in 2005 after a conflict of interest prevented Wise County Commonwealth's Attorney Chad Dotson from taking the case.

Most special prosecutors in Virginia are full-time commonwealth's attorneys who receive no extra pay for their services. Private attorneys such as McAfee and Stewart submit time sheets, much like court-appointed defense attorneys do, and are compensated by the Virginia Supreme Court at a rate of $90 an hour.

Thus the Appalachia case presents the rare opportunity to put a price tag on a prosecution.

McAfee said the estimated cost -- no more than what a court-appointed defense attorney might receive in a capital murder case -- is justified by the results, which included nearly 1,000 charges against 14 defendants, some of them elected officials or town employees who have since lost their jobs.

Of the $150,000 fee, "I would hope that reasonable-minded people would say that's a cost society needs to bear in order to make this a corrupt-free government," McAfee said.

Yet the case in Appalachia was handled differently from one in neighboring Scott County, where a similar election scandal prompted the local commonwealth's attorney to step aside. In that case, Botetourt County Commonwealth's Attorney Joel Branscom was appointed special prosecutor.

For making repeated trips to far Southwest Virginia and taking time from his regular case load to prosecute the former mayor of Gate City on election fraud charges, Branscom received no extra salary. He said he and an assistant prosecutor were reimbursed about $3,000 for mileage, meals and lodging.

Branscom said he and other full-time prosecutors are willing to accept cases as special prosecutors to preserve the integrity of the system. While not criticizing anything that McAfee or Stewart have done in the Appalachia case, Branscom wondered about the practice of letting special prosecutors bill by the hour.

"I'm not trying to be flippant or critical," he said, "but the concern I'm always going to have when you go to the private bar is what the motivation becomes. ... When does money become the driving factor, instead of justice?"

There's no limit in Virginia on what a private attorney acting as a special prosecutor can charge, unlike for court-appointed defense attorneys, whose pay is the lowest in the nation.

State law mandates that when a local prosecutor has a conflict, the presiding judge should appoint a full-time prosecutor from another jurisdiction who "shall not receive additional compensation for services rendered." But if the judge decides that's not possible or appropriate, the law allows a private attorney to become a special prosecutor.

McAfee and Stewart said the sheer size of the Appalachia case -- a saga of vote stealing and vote buying that one political observer has called the state's biggest election fraud in the past half century -- made it all but impossible for another local prosecutor to take on.

Although most Roanoke-area cases that involve a conflict are handed off to commonwealth's attorneys in nearby localities, McAfee said it's not uncommon in far Southwest Virginia, where prosecutorial staffs are smaller, for judges to make arrangements such as the one in Appalachia.

Neither the Virginia Supreme Court nor the Commonwealth's Attorneys Services Council keeps track of the number of special prosecutors appointed in Virginia, how many of those come from the private bar or how much they get paid, representatives for the two bodies said.

In Appalachia, the $150,000 prosecution price tag is just an estimate by McAfee and Stewart, who have yet to file their final time sheets. McAfee said his share would likely amount to about $100,000. But except for about $36,000 he received last April for the case's investigative phase, he and Stewart have gone without additional pay until the cases are concluded.

"Did it cause a problem?" McAfee said. "I would appreciate a check. That's a long time to wait to get paid."

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