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Photo by Isaac Harrell
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Benjamin outside his office. Photo by Isaac Harrell
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Former client Aaron B. Tobey, whose protest of airport security measures drew Benjamin’s interest. Photo courtesy Richmond International Airport.
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Benjamin at the finish line of the 1997 Spartathlon in Greece. Photo courtesy Steve Benjamin
Steve Benjamin stares out from a nondescript chair at his downtown office, a simple suite of a few small rooms at the end of a long corridor on South 12th Street.
It's early May, and the right side of his face is swollen.
One of Richmond's best-known criminal defense attorneys, he has a black eye the size of a doughnut, and his swollen nose bends precariously to the left.
His shaved head makes the injuries stand out even more sharply.
No, it wasn't a client who inflicted the pain.
"Bike," Benjamin says succinctly.
The face seems a perfect metaphor for Benjamin's legal career, a fitful, bruising ride, usually among the lower courts, often representing the down-and-out, the dispossessed, the forgotten, the desperate and, occasionally, the truly scary.
None would ever offer a big payday.
Which may explain why, after 33 years of practicing law, the 57-year-old Benjamin still answers his own telephone, does his own typing and performs his own research.
Forget the Maserati; he drives a Jeep.
Benjamin, who will become president of the National Association of Criminal Defense Lawyers on Aug. 4 in San Francisco, was born at Camp Lejeune, N.C., the Marine Corps base camp where his father, Leonard Benjamin, was a career Marine gunnery sergeant and proud of it.
"They run it, the Corps," Benjamin says of gunnery sergeants.
His father earned a B.A. in history from Union College in Schenectady, N.Y., where he was also captain of the swimming team. Like many men of his generation, he enlisted in the Marines during World War II. He later would fight in Korea.
He let his family know he never wanted to be an officer; he was happiest among the tumult of enlisted men.
Similarly, his son never courted big law firms or yearned for a spot on a corporate legal team, choosing instead to focus on the gritty work of a criminal defense lawyer, where the only expense account is what you have in your pocket that day.
Benjamin's mother, Lillian, taught home economics, and her son says she seemed to be happy every day of her life. She urged Steve and his sister, Barbara, who later became a social worker, to seek their own bliss, to meet life head-on.
Benjamin has tried to follow her counsel.
If not a musical prodigy, Benjamin was close. He began learning the trumpet when he was 4 years old. He also was a mean piano player.
"I liked it, and I was good at it," he says of his music. He was trained in the classics.
He attended Woodbridge High School in Northern Virginia, where he played in bands and ran the 100-yard dash for the school's track team.
"I am still very fast," Benjamin says.
That said, his college scholarship to East Carolina University came not in track but in music. Benjamin was 15 and midway through high school when his father passed away, and the scholarship was a help to his mother, by then a single mom counting every dime.
His father, Benjamin says, never talked about his war experiences or even about his life in the military. Whatever he may have seen or felt, he bore it stoically, and his son has largely modeled himself after that example. After his father's death, he carried on. He endured.
Before his father's transfer to Marine headquarters in Northern Virginia, Benjamin says, the family led an itinerant life among military bases in the South.
His parents were from upstate New York, and they didn't like the racial bigotry that then seemed prevalent in Southern culture, at least the part they often saw.
"My parents taught [us] two lessons," Benjamin says. "The first was that nobody is any better because of where they came from or what they look like than anybody else, and that all people deserve equal treatment and respect.
"The second lesson was that we as individuals have a responsibility to help those unable to help themselves," Benjamin adds. "Fairness, equality and respect — those were the values that were important to my parents."
When he entered East Carolina, Benjamin thought only of music. That didn't last. During his freshman year, because of his aptitude and his academic credentials, Benjamin was placed in an advanced history seminar.
There, he fell under the spell of two influential scholars — Tinsley Yarbrough, a noted constitutional and civil liberties authority, and John East, a strong conservative who later became a Republican U.S. senator from North Carolina and was an early supporter of President Ronald Reagan.
"The subject matter and intellectual stimulation was so great, it captured my attention like nothing else," Benjamin says.
After reading criminal defense attorney F. Lee Bailey's 1972 bestseller, The Defense Never Rests, Benjamin began envisioning a career in law. He immediately dropped music and pursued a major in history, with a minor in political science.
Like many of his generation, the movie To Kill a Mockingbird profoundly informed Benjamin's views on race relations.
But at least as importantly for Benjamin, Gregory Peck's Oscar-winning performance as attorney Atticus Finch provided him with a touchstone, albeit a fictionalized one, by which he could measure himself and every other criminal defense lawyer he would ever meet.
"Finch compromised his own comfort and his family's safety because he recognized a moral obligation to stand up where no one else would," Benjamin says. "He did exactly what my parents taught us to do."
"Criminal defense lawyers are a diverse bunch," Benjamin adds, "but we are all driven by the same thing — a passion for fairness and equal application of the law. They are the reasonable man facing the angry crowd."
Benjamin says he was offered scholarship help and financial aid when he applied to the University of Richmond School of Law, where he graduated in 1979.
Ronald J. Bacigal, a professor of criminal law and criminal procedure at UR's law school, remembers Benjamin as a good student, but, he says, "I didn't have the foresight to say he was going to be the kind of attorney he is."
Over the years, Bacigal has followed the career of his former student, a frequent lecturer in his classes who sometimes teaches as an adjunct at UR's law school, and he's come to some definite conclusions. "He takes on a lot of cases other people won't. I'm not sure what motivates him, but I admire him. He has a broader social conscience … . He's after what's good for the commonwealth and what's good for criminal law."
One of the great callings of Benjamin's professional life has been indigent defense, an often-thankless job carried largely by Virginia's public-defender system and court-appointed attorneys who stand on the bottom rung of the legal fee schedule.
"For years I was a court-appointed attorney, loving the work but barely able to pay the rent living on the flat rates that Virginia paid," Benjamin says.
One of the first inequities that he attacked in Virginia's indigent defense system was a practice that essentially precluded indigent defendants from the services of forensic experts who might aid their defense.
Benjamin says he and his law partner, Betty Layne DesPortes, worked at achieving the reform for 14 years. "We obtained a Virginia Supreme Court ruling that people who couldn't afford forensic assistance could obtain it at state expense."
He also attacked the fee structure that was being used to pay court-appointed attorneys. Benjamin says he had suffered under that system, and it was an injustice both to indigent clients and to the lawyers who were handling their cases.
Indeed, in 2004, an American Bar Association study found that Virginia's statutory cap on fees for court-appointed lawyers was the lowest in the country. This, the study said, acted as a disincentive for court-appointed lawyers to provide meaningful and effective representation.
Dave Johnson, executive director of Virginia's Indigent Defense Commission, says Benjamin has been "a driving force" in the effort to raise the fee cap for court-appointed attorneys.
Johnson notes that as president of the National Association of Criminal Defense Lawyers, Benjamin potentially will have opportunities to focus on issues that are dear to him on a national scale. "I think Steve senses that as president, he can really do something to raise the bar with indigent defense."
Benjamin says training for those who represent indigent defendants would be one of his priorities, especially using science to defend clients. In Virginia, he already has signaled what he might do.
Benjamin was instrumental — along with Leroy Rountree Hassell Sr., then the chief justice of the Virginia Supreme Court — in creating the annual Indigent Criminal Defense Seminar, which in May celebrated its eighth year.
The free seminar is open to Virginia lawyers — generally, court-appointed counsel or public defenders — who represent Virginia's indigent populations. It brings together experts from across the country to provide continuing education for a portion of the legal community that often does not get a lot of attention.
Benjamin also sits on the Virginia Indigent Defense Commission, which since 2004 has certified all attorneys looking to represent indigent clients in cases that carry a potential penalty of either incarceration or death.
Benjamin no longer accepts court-appointed cases himself, but he often takes on cases that don't pay a lot of money because of their implications for the criminal justice system or for civil liberties.
He is especially ardent about the Fourth Amendment, which protects citizens against illegal search and seizure, whether it be from uniformed officers or from a drone circling overhead.
One recent example was the case of Aaron B. Tobey, a University of Cincinnati student who stripped to his underwear at Richmond International Airport in December 2010 to protest what he believed were overly intrusive airport security measures and was charged with disorderly conduct.
Benjamin says Tobey was simply exercising his Fourth Amendment rights.
The case was not prosecuted, at the request of former Henrico Commonwealth's Attorney Wade Kiser, who said he did not believe the student's behavior rose to the level of disorderly conduct.
Kiser, who is now in private practice, was a classmate of Benjamin's in law school, and he says Benjamin has always been a gentleman in court: "Steve is always prepared; he is extremely thorough."
Michael Herring, the City of Richmond's commonwealth's attorney, has known Benjamin for more than 20 years, and he reiterates Kiser's high opinion.
"When people hire Steve, or when he elects to represent someone, we assume there will be a fight," Herring says. "Sometimes we fight over foreseeable issues, and sometimes he will be creative and identify issues that are not foreseeable, but which are viable."
Herring observes that Benjamin is a lawyer who will rarely share his thoughts on his client's prospects of winning or losing a case. "He's tenacious."
If indigent defense is one of Benjamin's passions, then the other is DNA testing as a tool for freeing individuals who have been wrongly convicted.
A member of the Virginia Forensic Science Board, he has helped spearhead the testing of samples of evidence, primarily semen and blood, in state case files from 1973 to 1988.
The existence of the files became known in 2001 when the Innocence Project — a national, nonprofit project to exonerate wrongfully convicted people — was looking for evidence to test in the case of Hanover's Marvin Anderson, who was convicted of a brutal rape in 1982.
The Virginia Department of Forensic Science found the samples when it was searching for biological evidence in Anderson's case. He was later exonerated, along with two others.
By then it was 2005, and Gov. Mark Warner ordered the testing of 31 randomly chosen files. Subsequently, two more men were exonerated. Warner then ordered the testing of all the old files in which convictions had resulted.
Benjamin says he and others campaigned to try to persuade the Department of Forensic Science to notify felons whose biological evidence had been found in the old files, so the felons could request the evidence if they chose to.
"We met surprising resistance," Benjamin says, "and we ultimately asked the General Assembly to order the department to make the notifications.
"When that proved to be insufficient, we met with the chief justice [of the Virginia Supreme Court] and statewide bar leaders who agreed they would provide pro bono legal assistance in making the notification.
"When we met resistance with that idea, again we returned to the General Assembly and asked them to order the Department of Forensic Science to accept the pro bono assistance of Virginia's lawyers."
Earlier this year, DNA evidence from the old files cleared Bennett Barbour of the 1978 rape of a William & Mary student in Williamsburg who had mistakenly identified him as her assailant, while implicating another man who is now set to be tried in August.
Barbour, who had been released on parole in 1983, learned of the life-changing event only when a volunteer lawyer reached him by telephone, after law-enforcement authorities had tried unsuccessfully to contact him by mail at former addresses.
"The evidence we have and no one else has might be the key that wrongfully convicted people have been looking for," Benjamin says.
His years of criminal defense work, as well as his efforts to help indigent clients acquire competent representation and his use of DNA evidence to free those wrongly convicted, have only increased his passion for the law, Benjamin says.
But those experiences also have crushed many of the beliefs he held as a young man.
"The core of values that I learned growing up that kept me safe from fear, they are not true," Benjamin says.
"It is not true that innocence is any guarantee of freedom in this country. … The law promotes finality over innocence, finality over mistakes."
Betty Layne DesPortes has been Steve Benjamin's law partner for nearly 20 years, following her graduation from the University of Virginia School of Law.
She also holds a master's degree in forensic science and has been Benjamin's right hand — they have never tried a jury trial apart. Benjamin says that DesPortes has been the one who has driven their interest in DNA and its use in criminal trials, as well as in establishing the innocence of those who have been wrongly convicted.
Benjamin calls her his best friend.
He was defending a man accused of robbing a McDonald's when DesPortes, on referral from a U.S. attorney, came to see him about a job.
The next day, a juror got sick, DesPortes says, and she went investigating. She and Benjamin found out that another man had been frequently posing as Benjamin's client — he even tried to get a driver's license under the client's name — and that he had been the one who told police that Benjamin's client had robbed the McDonald's. The case didn't hold up.
"I was hooked," DesPortes says. "But Steve said he couldn't afford to hire me."
She then told him that she could work for a lot less than he could ever imagine. They've been together ever since.
One of their most interesting trials, she says, involved a client accused of killing his mistress. The client maintained his innocence, but police didn't believe his story.
DesPortes says she and Benjamin suspected someone else, but there was no evidence to go on — until they learned during the trial that a cigarette had been found at the murder scene.
"We tried to get DNA testing on it," DesPortes says. When the results were in, she says, there was a gasp in the courtoom. Even a veteran bailiff expressed shock. "We tied the cigarette to the wife. That was the Perry Mason moment, and that's when prosecutors realized they were prosecuting the wrong person."
DesPortes and Benjamin are opposites in a lot of ways that make them a good match professionally.
DesPortes likes to do research and write briefs, while Benjamin likes to argue cases.
"I'm up at the crack of dawn; he works late at night," she adds, suggesting that the partners' disparate work schedules mean that their tiny firm has about the same hours as an all-night pharmacy.
DesPortes also seems to function as a cheerful foil to Benjamin's serious side. "He's not bombastic or given to grand oratory in court," she says. "He's also not warm and fuzzy, but he's reasonable. He's giving you the law and the facts of the case."
Though he enjoys arguing cases and talking to juries, wants to be the leader in any group, and likes to be the one who talks to the press — Benjamin is a legal analyst for NBC 12 in Richmond — there is another side to Benjamin's personality.
"He is beyond introverted," DesPortes says. "He is extremely private, extremely."
Benjamin will say only that he prefers to keep his private life private, always has and always will. Following his mother's death in 1993, and the untimely passing of his sister from cancer in 2006, the lifelong bachelor has no immediate family, but he says he still hopes he'll meet the right person some day.
A competitive athlete for whom the adjective "competitive" is probably an understatement, Benjamin is described by friends and colleagues as scarily intense.
At 5 feet 8 inches tall and 165 pounds, he says he still a long way to go to be the kind of competitor he aspires to be.
"I exercise every day," Benjamin says. "I work here, I go home and ride either with my friends or my [biking] team or myself for several hours, then go to the gym.
"I enjoy hard recreation," he continues. "I enjoy being competitive. Hard exercise is an outlet for me."
On the day he crashed and got his black eye, he was in a group sprint over the last 200 meters of an hourlong race on the track at Richmond International Raceway.
Before taking up competitive cycling, Benjamin was a hard-core extreme marathoner. He has run 24 hours straight without sleep. He has run 100 miles, 150 miles — in the boiling temperatures of Death Valley and in the High Sierras at elevations of 10,000 feet and up.
"You are dealing with a very unique person," says Andrew T. Wiley, a senior vice president at BB&T Capital Markets whom Benjamin introduced to ultra-marathoning. "Here's a guy who knows how to mentally and physically attack the unknowns.
"When we started, he would tell me that you can always do more than you think you can. When you believe that, things you never envisioned open up to you."
Though Benjamin is in the tiny fringe of highly trained amateur athletes, Wiley said he's never seen him talk about his accomplishments or try to intimidate a competitor.
"Here is a fellow who is a very astute judge of character," Wiley says. "He's private. He doesn't let a lot of people get in, but he's loyal and caring for other people." But he does want to be out front.
Only once will Benjamin admit to losing his passion for criminal law.
He was having a bad stretch in the '80s: All his cases seemed the same, and he was growing a little bored. Maybe, he thought, he ought to be making a lot more money. So he took night classes in tax law at Georgetown.
The experience made him more committed than ever to the path he had taken.
"I just realized it was not for me — it wasn't me," Benjamin says. He decided to push himself harder and become more selective in picking the cases he took.
"I began to take more challenging cases, and as I became better known, more challenging cases came to me."
But Benjamin says that as the stakes went up, so did the responsibility required of him. He has tried many capital murder cases over the years, and although the outcomes have varied, Benjamin, a death-penalty opponent, says nothing gives him more comfort than this: "Not a single one of my clients was ever sentenced to death."
Benjamin is looking forward to his year as president of the National Association of Criminal Defense Lawyers, but the title won't go on a scorecard, because he said he's never kept score on his accomplishments.
"When something is over, it's over," he says. "I don't look back."
Instead, he will just keep following his mother's advice: to seek his own bliss, to meet life head-on.
Hard and head-on.
