Monday, July 5, 2004; Page A16
DERRICK WATTS acknowledges that he was present when a group of youths robbed two men in a wooded area on Virginia's Eastern Shore. Testimony at his trial, moreover, suggested that he provided the gun and shared in the proceeds of the robbery. But Mr. Watts denies knowing of any plans for the robbery or taking part in it. Indeed, the woman who, by her own testimony, wielded the gun and carried out the robbery -- Joni Yoder -- initially told police that Mr. Watts "really didn't do anything." And witnesses at his trial and at a post-conviction hearing testified that Ms. Yoder and another accomplice who testified against him -- Adam Lowe -- had planned to lie about him to gain leniency. Yet Mr. Watts, who is black and did not plead guilty, got more prison time than either Ms. Yoder or Mr. Lowe, both of whom are white and both of whom cooperated.
There is, in short, good reason for an appeals court at least to consider Mr. Watts's case. Yet because of errors by his attorney, Norfolk defense lawyer William P. Robinson Jr., the Virginia Court of Appeals has never done so.
Mr. Robinson is a prominent member of the bar, a Harvard Law School alumnus who represented Norfolk for many years in the Virginia House of Delegates. He is also 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.
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.
In theory, such petitions, which offer convicts an avenue separate from normal appeals, provide a remedy by which defendants can get their appeal rights restored. But often, the medicine is worse than the disease. Under Virginia's restrictive rules for these post-conviction challenges, an inmate gets only one bite at the apple. That is, his initial petition must list every complaint about his trial or appeal that it is possible to list at the time it is filed. Any complaint the inmate leaves out he is barred forever from raising in state court. In other words, by acceding to petitions for delayed appeals in cases like Mr. Watts's, the attorney general effectively prevents any future challenges to inmates' convictions. So while Mr. Watts may someday get his appeal, satisfying this basic right may come at great cost. And Mr. Robinson acknowledges that he did not inform Mr. Watts of the potential consequences of signing the petition to get his appeal restored.
In this omission, he is not unusual. Many defendants, on the advice of the lawyers whose errors created their predicament in the first place, pursue delayed appeals with no idea of the consequences. And lawyers, either not understanding those consequences themselves or not caring, frequently fail to inform their clients of the costs of remedying their mistakes. This is unethical. In fact, a lawyer who has blown an appeal should not be playing any role in getting it restored; the inmate's very complaint in such circumstances is that he was denied his right to effective assistance of counsel on appeal. An attorney such as Mr. Robinson who aids in filing such a petition -- a common practice in the commonwealth -- is really complaining about his own conduct, a behavior the state bar describes as an improper conflict of interest.
Yet the problems with Mr. Watts's case don't end there. For Mr. Watts insists he had no idea his appeal had been dismissed even once -- let alone twice -- until we told him of the dismissals in a recent interview. And Mr. Robinson continued to pursue payment of his fees even after the second default -- threatening at one point to turn the matter over to court-appointed counsel if Mr. Watts's family didn't contact him to arrange further payment. Mr. Robinson denies keeping Mr. Watts in the dark, saying that he fully informed him of the errors. And he notes that Mr. Watts signed the petitions to get the errors corrected, implying that he knew of the problems of which those petitions complained.
We don't know if Mr. Watts's appeal has merit, but that's not the point. Not everyone convicted of a crime is guilty, and not everyone who is guilty is sentenced fairly or lawfully. A system in which lawyers like Mr. Robinson prevent clients like Mr. Watts from getting a hearing is a system bound to produce injustice.
© 2004 The Washington Post Company