CORI Initiative Student co-authors Mass Lawyer’s Weekly Critique of Appellate Delay

Justice denied: appeals mired in delay

by Jeanne M. Kempthorne, Allison G. Haar ('13) and Sejal Patel
Published in Mass Lawyers Weekly: October 4th, 2012

Allison G. Haar ('13) CORI Initiative Volunteer (A project of the CLSR) co-authored the following article

Nearly 10 years ago, the Visiting Committee on Management in the Courts, chaired by Father J. Donald Monan, then-chancellor of Boston College, concluded that the courts of Massachusetts were “mired in managerial confusion” and that the “impact of high quality judicial decisions is undermined by high cost, slow action, and poor service to the community.”
The Monan Report concluded that the “management of the Judiciary is preventing the people of Massachusetts from receiving the justice they deserve” and that “[s]ome citizens get better justice than others.”
In the almost 10 years since the committee issued its scathing report, the courts and the Legislature have instituted numerous reforms to make the management of the trial courts more professional and efficient.
In at least one area, however, progress has seriously lagged. Appellate justice in the commonwealth is so slow that it may violate the due process clause of the U.S. Constitution.
Recent court data indicate that criminal appeals, in particular, are absurdly slow: In fiscal year 2012, the time between filing of the notice of appeal and entry in the Appeals Court averaged 204 days for civil cases and 333 days for criminal.
Civil cases, on average, were disposed of within 378 days of docketing in the Appeals Court; for criminal cases, the average was 483 days.
In the 1st Circuit, in contrast, appeals are decided, on average, in less than a year. The American Bar Association’s time standards provide that 95 percent of all appeals to the intermediate appellate court should be decided within one year of the filing of the notice of appeal.
Several federal courts around the nation have ruled that an appellate process that takes longer than two years is presumptively unconstitutional. Massachusetts’ system routinely exceeds that outer constitutional limit, sometimes by years.
What does this mean in the real world? It means that someone serving a two- or three-year sentence is almost certain to serve his entire term of imprisonment before disposition of the appeal.
It means that appeals from District Court convictions are, in large measure, an empty, but very costly, ritual. In fact, no one keeps track of how many defendants serve their entire term of imprisonment before disposition of their appeal.
Without question, the court reporter system in Massachusetts deserves the blame that has been heaped on it for years.
Court reporters operate largely free from court oversight and have little financial incentive to complete transcripts for indigent criminal defendants, as opposed to civil litigants, in a timely fashion.
Efforts by the committee headed by Appeals Court Judge Mark Green to speed up the process have yielded some improvement, but serious problems persist, both in quality and in timeliness.
It still falls largely on defense counsel to push to get the transcripts done, and there are few, if any, repercussions for reporters who fail to comply with time standards.
But the delay problem does not end with preparation of the transcript. The culture of delay is firmly entrenched in the appellate process.
In several counties in Massachusetts, appointed defense counsel struggle to do their jobs impeded by the clerks’ offices. Instead of court clerks automatically riding herd on court reporters, the burden to follow up falls on appointed defense counsel — at public expense.
And even when the transcript is finally completed, clerks in some offices drag their feet to get copies made for counsel, impose ridiculous requirements that counsel personally pick up the transcripts, and then take their time assembling the record.
In short, while many clerks strive to be helpful and to facilitate counsel’s efforts to accomplish the task at hand, too many continue to exhibit the lack of customer service and accountability that the Visiting Committee decried almost a decade ago.
The appellate courts themselves bear a good deal of the responsibility. Not only does there appear to be little if any repercussion for court reporters and clerks who impede the process, the court itself sets the tone.
In several, if not most districts, the commonwealth’s appellate attorneys routinely seek very lengthy extensions of time in which to file the state’s responsive brief — often 60 to 120 days beyond the 30 allotted by rule. This extension is often followed by a second request for additional time.
The Appeals Court routinely grants the commonwealth long extensions without waiting for an objection or even inquiring whether there is an objection. This surprising practice is enshrined in Mass. R. App. 15(b), which places the onus on defense counsel to file a motion to reconsider, vacate or modify such action.
In practice, the Appeals Court is extremely lenient with the state’s motions for more time. Often the affidavit submitted in support of the motion unwittingly describes lax management practices whereby an appeal is not even assigned to an assistant district attorney until it is almost due.
And, while the rule permits the aggrieved party to move to vacate or modify the order granting more time, the Appeals Court has rarely granted such motions, and even then, the process, by itself, gives the commonwealth relief from the deadline.
Many defense counsel have simply thrown in the towel, concluding that it’s fruitless to complain or fearing that their own requests for more time will be denied.
Defense requests for more time are simply not comparable to prosecution requests. For one thing, they do not raise due process concerns so long as the defendant agrees that an extension is necessary. The defendant and counsel can weigh the impact of a request for delay on the time the defendant will spend behind bars waiting for his appeal to be decided. And, if they don’t agree, the defendant has some recourse.
In contrast, delay is always in the state’s interest so long as the defendant stays behind bars for the duration. There is no client to whom the commonwealth is answerable.
Moreover, the district attorneys’ offices are in a much better position than appellant’s counsel to comply with the briefing deadlines.
First, the appellant’s brief sets out the facts, with citations to the record, frames the issues, and cites the applicable law.
Second, the DA’s Office gets plenty of notice of when its brief will be due, whereas appellate counsel is powerless to control when a case will be docketed and the clock start ticking.
Third, the DA’s Office is in a position to triage cases and manage resources in light of looming deadlines, whereas appellant’s counsel is often a sole or small-firm practitioner struggling to juggle competing deadlines.
Even when they seek long delays in the briefing schedule, the DAs’ offices reflexively oppose motions to stay execution of sentence, even in cases in which the defendant has a minimal criminal history, is convicted of a nonviolent offense, and is serving a short sentence likely to be completed before the appeal is resolved. And the courts almost never grant motions to stay, even when the delay is unconscionable.
The judiciary appears insensitive to the perception of many defendants that the system is rigged against them and that the whole appellate process is a charade with an almost certain outcome.
Even a reversal is cold comfort to a defendant who has spent years in prison waiting for justice. Rule 15(b) feeds the perception of systematic unfairness. It undermines the reputation of the court.
While a strong case can be made that the average appeal in Massachusetts presumptively violates defendants’ constitutional right to due process, neither the state nor the courts have much incentive to address the problem.
The courts pay lip service to the importance of a speedy resolution of criminal appeals and frequently criticize the glacial pace, but they have avoided providing any remedy to complaining defendants.
Thus, the due process guarantee provides no effective check on the commonwealth, including not only the DAs’ offices and the clerks’ offices, but the judiciary itself.
Three proposals to address the pervasive culture of delay immediately suggest themselves:
• First, court reporters who do not comply with time standards for producing transcripts must be subject to appropriate sanctions, including contempt and fines. At a minimum, they should not be permitted to undertake additional work, including hearings, until transcripts are complete.
• Second, the appellate courts should no longer grant the commonwealth’s motions for extensions without inquiring whether there is an opposition. At the very least, the courts should summarily deny motions that are not timely filed and should not grant extensions longer than one week without soliciting defense counsel’s position on the motion. No motion by the state for an extension longer than one month should be allowed except in extraordinary circumstances. If the commonwealth fails to file by the deadline, it should be barred from oral argument.
• Third, motions to stay execution should be given a meaningful hearing. When the sentence is short, the offense non-violent, and the defendant has no prior record, or when the commonwealth, including court reporters and clerks, are responsible for inordinate delay, there should be a strong presumption in favor of a stay.
Placing responsibility for the release of convicted defendants pending appeal where it belongs will have an immediate impact on the culture and practice of the courts, the DAs’ offices and the clerks’ offices. Nothing less will suffice to give effect to the due process guarantee of a prompt appeal.

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