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.

"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.



I wonder if it would work different if he were simply renting a room in a boarding house?

For example if the parents had a lease agreement that they rented out the space their adult son lives in- which specified a rental amount (100 or 200 a month) and then that he is x-number of months behind in rental payment, and/or which he has been allowed to repay in exchange for completing various tasks. Also that as a part of the agreement he has use of the kitchen but must provide his own food.

There is definitely something wrong in Fluvanna.

Not sure if anyone really pursued this however here is the link for the FINANCIAL STATEMENT – ELIGIBILITY DETERMINATION FOR INDIGENT DEFENSE SERVICES Form DC 333

Having had seen the form used in the Fluvanna Court system personally I know that this is not the form used, nor is there ANY direction or information given to to the defendent when completing this form. Any questions about completing their version of the form has been deemed as 'failure to complete the documents completely' and people denied a court appointed attorney as a result of it. The Circuit Court Clerk is about as helpful to those needing assistance with this matter of the court as she was with this paper.

Addendum/correcttion........"The Circuit Court Clerk is about as helpful to those needing assistance with this matter of the court as she was with this paper." I meant the "District Court Clerk: Robin Lynne Elliott." Having seen the actual directions to complete the form and definition of what income to be included, one has to wonder where the Fluvanna District Court derives their definitions and what their purpose is.

My son, Michael Davis, was given a court-appointed attorney prior to this story in the Hook hitting the stands. However, it was, indeed, after the Hook interviewed Mr. Haislip, Commonwealth Attorney and the clerk and judge of the General District Court declined to be interviewed.

My son actually received a fax at the Central Virginial Regional Jail with the attorney's information listed.

I sincerely thank the Hook and the community for their support.


Sandy Weaver

Mrs. Weaver,

Please get in touch with me.
Thank you