THE CONSTITUTION guarantees those accused of crimes the right to lawyers, but for poor defendants in Virginia, this right has too long been honored in the breach. Earlier this year, the Virginia General Assembly finally took action to begin making the right to counsel real. It created a commission with a broad mandate to supervise the defense system that serves the indigent. The new Indigent Defense Commission meets for the first time tomorrow. It has a great deal of work to do.
The system, quite simply, is in crisis. Lawyers appointed to represent indigent defendants are paid less in the commonwealth than anywhere else in the nation and work with almost no oversight. Attorneys in public defenders' offices, meanwhile, are forced to carry huge caseloads. The result is a system in which deficient performance is the depressing norm. In a series of editorials this past summer, we detailed just how depressing: In 2003 more than 10 percent of criminal cases before the Virginia Court of Appeals were dismissed because of missed filing deadlines, many by attorneys appointed to represent poor clients.
Two issues of particular note are on the commission's agenda for the first meeting. The first is what to do in response to the attorneys who blow their clients' criminal appeals by missing deadlines. The public defenders' offices are generally better than outside counsel appointed by the courts, but a large number of blown appeals were the products of errors by public defenders. Richard C. Goemann, the executive director of the commission, asked an attorney to audit appellate procedures at the various public defenders' offices and to develop new standards and procedures; the commission will be getting a progress report from that attorney, David R. Rosenfeld. The commission will also discuss the critical question of how public defenders should handle cases that have already been botched, so as to best protect their clients' com- promised rights. The commission needs to send an unequivocal message to attorneys throughout the state that this type of error is unacceptable.
The commission will also take up the question of caseloads in the public-defender system. A report early this year for the American Bar Association found that statewide, public defenders handled an average of 507 cases in fiscal 2002 -- and in one jurisdiction as many as 674. Such volumes are dramatically above national standards and simply inconsistent with the defenders' minimal obligations to their clients.
One issue the new commission will not be taking on immediately is imposing performance and educational standards on outside lawyers, something the law clearly empowers it to do. In fact, Mr. Goemann will be recommending that it delay enforcement of any standards against the private bar for a year beyond the General Assembly's deadline. Mr. Goemann says that he wants to deal with the public defenders' offices first and that imposing standards on the outside bar is too big a job to be completed effectively in the time required by the legislature. The trouble is that outside lawyers still handle the bulk of criminal cases in the commonwealth, and imposing caseload limits on public defenders will push ever more cases to these attorneys. If their standards of practice are not improved, the perverse result could be that more defendants receive bad representation. The commission needs to consider the problem of indigent defense in Virginia comprehensively, for it is failing comprehensively -- with consequences as tragic in human terms as they are offensive to the American constitutional tradition.