Attention: Virginia Bar
Tuesday, July 6, 2004; Page A18
WHEN THE Virginia Court of Appeals dismissed Anthony Washington's appeal of his murder conviction last year because of a missed filing deadline, his attorney promptly asked the court to reconsider. "Counsel . . . was in [an] automobile accident," wrote Richmond defense lawyer David Lassiter. "The damage to the vehicle is in excess of $20,000; the vehicle may be a total loss." He had to go to Maryland to find the car. He suffered "lower back, neck, and left knee" injuries and fell behind in his work. And "in his haze and haste, he miscalculated the date" his brief was due. The court was not moved. Then again, it was not the only time Mr. Lassiter failed to meet deadlines on which his clients' fates depended.
A few weeks earlier, Mr. Lassiter explained why he had not filed transcripts on time in the appeal of Rashad Lamont Moore. He acknowledged in a court filing that "counsel has no excuse" but "simply states that as a result of not having electricity for twelve days during the recent hurricane, counsel, in essence, closed his office for much of the period." After that, he got behind and "did not follow up in this matter." He filed the same excuse a day earlier in the case of Melvin Sharrod Edwards. In another case in which Mr. Lassiter was supposed to be representing Mr. Washington this year, he simply denied that he had filed transcripts late at all. And in the case of James Lee Mack, whose appeal the court dismissed last year when Mr. Lassiter filed the brief itself late, he didn't bother offering any explanation.
In four of these five blown appeals, Mr. Lassiter, who declined to comment for the record, was serving as a court-appointed lawyer for an indigent defendant. In at least two of the cases, Mr. Lassiter helped prepare petitions for his clients to get their appeals restored. Two of those clients -- Mr. Washington and Mr. Moore -- told us they filed these petitions unaware that by doing so, they would give up the right to file future state court actions challenging their convictions.
The Virginia State Bar's ethics counsel, James M. McCauley, does not comment on individual cases, but he says in general terms that "it is improper and unethical for an attorney to simply abandon an appeal," whatever the reason.
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:
• Eric Sisler, a part-time public defender in Lexington, had four cases dismissed. He said initially that in all four, the clients wished to abandon their appeals. Abandoning a case is an ethically improper way to withdraw an appeal, says the bar's ethics counsel, Mr. McCauley, speaking generally; the formal process for withdrawing a case must be followed. But at least one of Mr. Sisler's clients, in any event, insists that he wanted to appeal. Anthony C. Mazza, locked up for violating probation, told us that Mr. Sisler wrote him a letter saying that his appeal was meritless and suggesting he drop it. But Mr. Mazza says he never authorized this course, and he says he was never notified that his case was dismissed. Asked about Mr. Mazza's claim specifically, Mr. Sisler said, after examining his file, that his letter had instructed his client to get in touch if he wanted to proceed with the appeal and that he never heard from Mr. Mazza.
• Anthony J. Johnson Jr., a part-time public defender in Norfolk, had four cases dismissed over filing errors. In one, Mr. Johnson's client, Shelton Land, handwrote a letter to the court nearly three weeks after his case was dismissed "inquiring about the status" of his appeal. Mr. Johnson declined to comment for the record.
• Lorie O'Donnell, public defender for Loudoun, Fauquier and Rappahannock counties, was counsel of record in three blown cases during our study period, and according to the newspaper Leesburg Today, her office has been responsible for at least six other blown appeals since July 2002. Ms. O'Donnell acknowledges error by her office in all three cases we examined. In one, she says, the client decided to abandon the appeal, which was handled by one of her newer staff attorneys. In the other two, she has helped clients petition to restore the appeals. She insists -- wrongly, according to prominent defense lawyers and the office of Attorney General Jerry W. Kilgore -- that filing an action to restore defaulted appeals has no effect on a client's ability to file another challenge later.
For equanimity in the face of failing a client, though, no one can match Andrea C. Long. Last November, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, dismissed the habeas corpus appeal of Kenneth B. Lewis, a state inmate serving more than 30 years for murder; Mr. Lewis's lawyer, Ms. Long, the court ruled, had filed the notice of his appeal four days too late. Ms. Long insisted in an April letter to Mr. Lewis and in a recent interview that the error was not her own; the court's clerk had stamped the wrong date, she maintains -- an explanation that five prominent appellate experts we consulted described as highly implausible and which Ms. Long admits that she cannot prove. "While I do not know whether you are a religious man, I am a religious woman," she concluded in her letter. "I can't help but believe" that the error "had to be the work of God, since it was no fault of yours or mine. That means that there is some purpose that God has for you to remain in prison." She signed off, wishing Mr. Lewis luck as "you find and fulfill that purpose." The presence of lawyers in Virginia's defense bar who could write such a letter or throw case after case away is not an act of God. And it should not be tolerated any longer.
© 2004 The Washington Post Company