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.
The 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. The chief judge of the Virginia Court of Appeals, Johanna L. Fitzpatrick, told us last week that she will consider recordkeeping improvements and routine referrals of defaults to the bar.
The broader issue is not the blown appeals themselves but the window that they offer into Virginia's indigent-defense system. It is unlikely that lawyers who are failing in these most basic, secretarial aspects of legal practice are aggressively representing their clients at trial or -- when they manage to file an appeal on time -- arguing effectively on their behalf. When 11 percent of cases are resolved without even being heard, one has to worry about the quality of the other 89 percent -- particularly those cases in which the accused is unable to hire a lawyer of his choice and gets stuck with whatever attorney the state provides.
Virginia's system for defense of the indigent has two components: public defenders' offices in certain jurisdictions and, for most cases, court-appointed private lawyers. Making the system functional will require significant investment in both. Public defenders' offices are, in general, far preferable to the haphazard system of court-appointed counsel. But, as our data show, these offices also make many errors. They will need new money so that caseloads can be diminished and so that they can recruit quality lawyers. And they must be subject to statewide management, coordination and oversight -- as in Maryland. The creation of a more robust public defender commission this year was a step in the right direction, but it was a small step.
The system of appointing outside lawyers also needs to be revamped. These lawyers are the lowest-paid counsel for the indigent in the country -- and that fact tends to push skilled, ethical lawyers away from court-appointed work. Virginia pays an average of $245 for a defense -- only $12 more than it did in 1971. Crimes that can carry a sentence of life in prison can net a lawyer no more than $1,096, even when the defense requires a full-fledged trial. Crimes that can land a defendant as many as 20 years pay a maximum of $395. So lawyers face a tremendous financial incentive to reach plea deals. As a recent report for the American Bar Association put it, the pay structure "puts lawyers at substantial risk of violating professional rules of conduct when representing indigent defendants" -- and the result is that "substandard practice has become the accepted norm."
It is going to take money and political commitment -- long lacking in Virginia -- to make the Constitution's promise of fair trials real for those the commonwealth accuses of crimes. The state's constitutional obligation is not in question. The only question is whether Virginia's policymakers care enough to do something about the fact that the system utterly failed more than 230 times last year alone.