The Washington Post ran a three-part series of editorials this week on fixing the problem of inadequate representation of indigent criminal defendants in Virginia. [Thanks to the SW Virginia Law Blog for the links.]
The 7/5/04 editorial begins the series, reporting on how errors of attorneys impact their indigent clients. One attorney is spotlighted as:
among the state's leaders in botched appeals. Over the 15 months we examined, his filing errors caused the Court of Appeals to dismiss six of his clients' appeals without hearing them. The data we collected from the court reveal no lawyer in the state responsible for more such errors than Mr. Robinson during 2003 and the first quarter of this year. Mr. Robinson blew cases in which he was appointed by courts to represent indigent defendants and cases in which he had been retained; he blew cases by failing to file petitions on time and by failing to file trial transcripts on time. In two of the cases in our study period, including that of Mr. Watts, he blew appeals he had blown once before.The 7/6/04 editorial details some of the excuses used by lawyers:Mr. Robinson's troubles meeting deadlines are no secret to the Virginia State Bar. In 2000, he was publicly reprimanded for conduct related to a procedural default. In 2002, he was reprimanded again. And he has been held in contempt of court for failing to show up for his clients' hearings. Yet Mr. Robinson remains eligible to take on new work and to represent in state court defendants who cannot afford a lawyer.
The appeals court dismissed Mr. Watts's first appeal in April 2002 because Mr. Robinson had not filed the transcripts on time. In response, Mr. Robinson filed a petition -- known as a habeas corpus action -- to get the appeal restored. But having accomplished that, he then failed to file the appeal petition itself on time, and the court once again dismissed the case last August.
In an interview, Mr. Robinson acknowledged all six of the recent defaults. Three of the cases, he said, resulted from clients' inability to pay for transcripts or his fees. Two, including Mr. Watts's, he blamed on his secretary, who attributed them to a knee injury. One, he says, was the result of confusion brought on by misleading information from the court itself. Mr. Robinson notes that in some cases he petitioned to get delayed appeals for his clients. He filed a petition to get Mr. Watts's appeal restored -- once again -- last month.
Yet Mr. Lassiter -- and William P. Robinson Jr., about whom we wrote yesterday -- are far from the only lawyers in the state who repeatedly compromise their clients' appeals but continue to practice law. All told, we identified more than 40 attorneys statewide who defaulted more than one case and 12 who defaulted three or more during the period we examined. A few warrant particular mention * * *.The examples are well worth reading.
Finally, the 7/7/04 editorial concludes the series. Some quotes:
THE SUPREME Court ruled in 1963 that states must provide effective counsel to poor people who wish to appeal their criminal convictions. Virginia is failing systematically to do so. The Virginia Court of Appeals resolved more than 11 percent of its criminal cases in 2003 without ever reaching their merits but, rather, on the basis of technical filing errors -- overwhelmingly missed deadlines by lawyers who were supposed to be protecting their clients' rights. Many of these lawyers blew cases repeatedly with no consequences to themselves. And the result is that, more than 40 years after the Supreme Court articulated the right to counsel on appeal, many defendants -- preponderantly the poor -- are being denied the basic right the court proclaimed. To make that right a reality, a lot in Virginia will need to change.Posted by Marcia Oddi at July 9, 2004 01:44 PMThe court's rules, for starters, are nonsensically inflexible. Why should a defendant lose his right to appeal a conviction because his lawyer files his transcripts or his appeal petition a day late? Virginia's rules function as a game of "gotcha," wherein errors that have no bearing on the guilt or innocence of the defendant or on the legality of his trial become dispositive grounds for keeping him locked up. Moreover, the law makes it difficult for defendants to get appeals restored without compromising their ability to challenge their convictions. None of this is fair or rational.
Lawyers, however, are bound to follow even irrational rules when their clients' interests depend on it. And the state bar and courts alike therefore have a duty to keep track of lawyers who can't be troubled to do so -- and then to discipline them. In a recent interview, the state bar's ethics watchdog, Barbara Williams, said she hopes a new bar task force on indigent defense will examine the issue of procedural defaults in detail and said her office will "follow up" aggressively.
The courts need to assist the bar in learning the full scope of the problem. Currently, the courts do not refer orders dismissing blown cases to the bar or even maintain figures on the frequency of such dismissals. So to know who is throwing their clients' rights away, one has to sift manually through the large numbers of orders the courts issue on a daily basis -- which nobody does.