DERRICK WATTS wants to appeal his conviction. Sentenced to eight years in prison for robbery and use of a firearm in Accomac, Va., Mr. Watts insists he is innocent. Yet nearly three years after his conviction, the Virginia Court of Appeals has never heard his case. The lawyer whom Mr. Watts's family paid to represent him after his conviction has twice failed to file key court papers on time, provoking the court in both instances to dismiss the case on procedural grounds.
If Mr. Watts's case were an anomaly, his travails would be just another sad story of an inmate who feels ill-used at the hands of the justice system. But Mr. Watts's story is all too common among Virginia inmates who wish to appeal their convictions. An investigation by this page reveals that in 2003 more than one in 10 of the 2,660 criminal cases before the Virginia Court of Appeals -- the state's mid-level appellate court -- were dismissed not because the cases had no merit but because fees or documents were not filed with the court on time. These dismissals were overwhelmingly the result, as in Mr. Watts's case, of attorney error, not defendants mishandling cases in which they represented themselves: Nearly 9 percent of appeals in the court were thrown out because of errors by lawyers -- errors so fundamental that they don't even involve legal skills. Public defenders and court-appointed lawyers for poor defendants were responsible for more than 70 percent of the cases in which lawyers threw away their clients' rights. Moreover, we identified more than 40 attorneys who, over 15 months, appear to have blown more than one case and at least 12 who appear to have filed appeals in three or more cases that were dismissed. Every time one of these defaults takes place, someone's appeal -- however much merit it may have, however innocent the defendant may be -- does not get heard.
The magnitude of the problem shocked us. It shocked legal experts whom we consulted. It should shock Virginia policymakers into action.
Two features of Virginia's criminal justice system make botched appeals unusually likely. The first is the state's indefensibly harsh procedural rules. If you notify the court one day late that you mean to appeal, your case gets dismissed; the same is true if you are even one day late in filing the appeal itself, paying a filing fee or providing trial transcripts. In the District, by contrast, more relaxed court rules make dismissals over procedural errors extremely unlikely and easily corrected when they do happen. Likewise, in Maryland, the rules are more flexible, and a statewide public defender system handles the preponderance of appeals by indigents; while exact figures are not available, the rates of default are significantly lower than in Virginia. The courts in these jurisdictions may rescue a client from a lawyer who cannot be troubled to file papers; they try to avoid punishing the defendant for the errors of his lawyer. Courts in Virginia, by contrast, dispose of large numbers of cases on the basis of what should be inconsequential errors.
For many years, studies have warned about the second key problem: Virginia's criminal justice system is failing to provide adequate legal counsel to poor people accused of crimes. Criminal defendants have a right to appeal their convictions, and the Constitution guarantees them the effective assistance of counsel to do so. Yet Virginia pays court-appointed lawyers less than any other state in the country, and these lawyers are subject to little meaningful oversight. We have written repeatedly about the woeful state of defense for indigents in the commonwealth, and some of the specific resulting travesties are well known.
But to get a sense of how widespread the problem is we combed through 15 months of orders at the Court of Appeals, identifying cases dismissed for procedural reasons. These failures are not judgment calls. They are, rather, so bad that the state bar's ethics counsel, James McCauley, considers them "improper and unethical" conduct whenever they occur. Even the Virginia attorney general's office, which tenaciously defends convictions under most circumstances, concedes that these errors deprive convicts of their constitutional right to the effective assistance of appellate counsel. The frequency of these most basic errors throws disturbing light onto the inadequacies of the commonwealth's justice system as a whole.
In three editorials to follow, we will describe some of the lawyers who have blown cases repeatedly and the impact their errors have had on their clients. We will also suggest changes in policy that would help correct this problem. Because we examined only a limited period and only certain easily identifiable categories of botched appeals, there are surely many more cases than we identified. Almost as certainly, in a system failing as profoundly as Virginia's, there are innocent inmates who, with minimally competent lawyers, would today be free.