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Progress in Virginia

Saturday, October 16, 2004; Page A22

IN JULY, THIS PAGE featured a series of editorials concerning lawyers in Virginia who throw away their clients' criminal appeals by missing key court deadlines. Our investigation revealed that large numbers of inmates are being denied the ability to appeal their convictions because of procedural errors that have nothing to do with the merits of their cases. In 2003, more than 10 percent of criminal cases brought before the state's mid-level appellate court, the Virginia Court of Appeals, were dismissed because of late filings or fees. The overwhelming majority of these errors were made by lawyers, not by defendants representing themselves. Fortunately, key state institutions appear to be taking the problem seriously. The Virginia State Bar has been conducting what looks like a substantial investigation in response to the series. And the Court of Appeals recently changed its policy to help the bar discipline those attorneys who cannot be troubled to take basic steps to protect their clients' rights. More fundamental changes are still needed, but these developments represent substantial progress.

The enormous number of botched appeals is the product of a combination of factors that cry out for reform. One of them is that many Virginia defense lawyers -- who are grossly underpaid and often carry caseloads far too large -- display a lackadaisical attitude toward the rules, even when their clients' fates depend upon it. The progress to date has been on cracking down on this attitude. The state bar, says bar counsel Barbara Williams, followed up on the editorials with its own broad investigation of blown appeals. While its specific findings are hard to compare precisely with our own, they are broadly consistent -- and equally shocking. Between January 2002 and August of this year, the bar's investigation identified at least 948 defaulted appeals in cases in which convicts had counsel representing them. In some unknown number of cases, people will stay in prison despite substantial injustices in their trials and sentences; some may even be innocent. The bar estimates that at least 20 lawyers were responsible for four or more each. Ms. Williams says her office is "taking appropriate action with respect to our findings" -- which presumably means that it is pursuing disciplinary actions against those lawyers responsible for multiple lapses.

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The other encouraging development is a recent move by the Court of Appeals to begin referring such cases to the bar as a matter of course. The bar considers all defaults to be unethical conduct, because lawyers have a duty to provide competent and diligent representation. But until now, the court did not routinely notify disciplinary authorities when these cases happened, nor did it keep records of them itself. The result was that even finding the number of defaults -- and which lawyers were responsible for them -- was a laborious process. But last week, Ms. Williams says, the court notified her that it would begin referring all defaults monthly. This means that lawyers in the commonwealth will know that whenever they throw away their clients' rights they do so at peril to their own livelihood. The Virginia Supreme Court, which has yet to change its policy of referring a lawyer to the bar only after the third default, should take a cue from the Court of Appeals.

A meaningful disciplinary process is essential, but the rules themselves are irrational and need to be changed; they punish convicts who wish to appeal their convictions for the errors of their attorneys. Appeals are dismissed over filing deadlines missed by as little as a day. There's no good reason for this harshness. This type of lawyer error should -- as it does in other jurisdictions -- bring about a rebuke to the lawyer, not a denial of justice to the client. At a minimum, there needs to be a way to restore convicts' appellate rights that does not compromise their later ability to challenge their convictions.

Most fundamentally, procedural defaults are a symptom of a much broader problem: Virginia's failure to provide reasonable counsel to those it would lock up as criminals. The state is obligated under the Constitution to provide effective assistance of counsel to defendants who cannot afford it. But until state policymakers adequately pay counsel for indigent defendants and restrict caseloads to manageable levels, substandard representation will remain a distressing norm. The Court of Appeals and the bar deserve credit for beginning to respond to the symptom. The underlying disease needs treatment too.

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