Habeas Corpus Granted

In a rare decision, the Fourth Circuit recently found that a prisoner was entitled to habeas relief on the grounds of ineffective assistance of appellate counsel. In Herrington v. Dotson the Fourth Circuit was faced with a habeas petition brought by a Virginia man who had been found guilty of several crimes including failing to file an income tax return in 2009. Despite being found guilty and losing his appeals and habeas petitions in both Virginia and federal district court, Herrington was innocent of the failure to file a tax return because he did not make enough money to have been required to file. The case stands as a lesson to prosecutors, appointed counsel in criminal cases, and trial and appellate judges who review these cases.

Brief Primer on PCR/Habeas

Most everyone knows that people accused of crimes have a constitutional right to a lawyer. And it’s a relatively common-sense extrapolation that people have a right to a competent lawyer who provides them with effective assistance of counsel. That is in a sense the promise of the seminal cases of Gideon v. Wainwright and Strickland v. Washington. Unfortunately, this promise is not always kept.

After a person is found guilty of a crime by way of guilty plea or jury verdict, they have a right to appeal their case. If they lose those appeals, they have a right to seek what’s known as “collateral review” though a process called post-conviction relief (PCR) or habeas corpus. The procedures vary from state to state and within the federal system, but at its core, PCR is when a convict sues the state alleging they are being unconstitutionally imprisoned because the lawyer that represented them at their trial or plea (or appeal) was not effective, i.e. not competent.

A convict who seeks PCR must show that their lawyer was deficient, i.e., made mistakes that a reasonably competent attorney would not have made, and that the lawyer's mistakes contributed to his conviction, i.e., but for the lawyer’s mistakes, the outcome would have been different.

The Anders v. California Procedure

Anders v. California was another seminal Supreme Court case that dealt specifically with criminal appeals. When a lawyer is appointed to represent a person in their direct criminal appeal but believes that the appeal would be frivolous, that lawyer may file what is commonly known as an Anders brief. An Anders brief is written just as a normal appellate brief would be – making the best possible appellate argument for your client – but is then followed by a statement from the lawyer that he believes the argument he has just made in the brief is frivolous. The lawyer will ask at the end of the brief for the appeal to be dismissed and to be relieved as counsel for the defendant.

The Anders Procedure is controversial because lawyers have ethical obligations to their clients and the court. In the Anders context, the ethical obligations to the court are essentially deemed to be superior to the obligations to the client. Some states have already abandoned Anders briefs and I suspect more will follow.

After a lawyer files an Anders brief, the appellate court has an independent obligation to fully review the lower court record and decide for itself whether it thinks there are any meritorious grounds for an appeal. If the court agrees with the lawyer, the court will dismiss the appeal. But if the court does not agree with the lawyer, it will typically kick the case back to the lawyer and order the lawyer to file a merits brief arguing whatever issue(s) the court directs him to argue.

Herrington v. Dotson

Herrington was charged with a number of crimes, including failing to file a tax return. Herrington represented himself at his trial, which may or may not have made a difference in the ultimate course of his case. But in any event, at his trial, the jury was told that a person is required to file a tax return if their income is over $11,250. Herrington only made $9,543 in income but he also received $16,736 in unemployment benefits. The jury was not told that for purposes of filing a tax return, unemployment benefits do not count as income.

So, Herrington was innocent of this crime. Yet a prosecutor prosecuted him for it. A trial judge incorrectly instructed the jury on the law and after they found him guilty the trial judge sentenced Herrington to prison. And then his appellate counsel failed to argue the issue on appeal and instead filed an Anders brief. The Virginia Court of Appeals for its part also missed the error which left Herrington having to seek post-conviction relief by filing a habeas petition.

Finally, when Herrington’s case made it to the Fourth Circuit they correctly concluded that his state appellate counsel was ineffective in failing to argue the erroneous jury instruction issue. And there is no doubt that but for the erroneous instruction he would have been found not guilty. He obviously should have never been prosecuted for this charge in the first place. But strangely, instead of vacating Herrington’s conviction, they sent his case back to the Virginia Court of Appeals to consider “in the first instance” the merits of his state appeal.

What? Really? You’ve just concluded that he is actually innocent of the charge and was incorrectly prosecuted, incorrectly found guilty, had ineffective assistance of appellate counsel, all of which the Virginia Court of Appeals missed. But alas the judicial system is not an example of efficiency.

And I would be remiss if I didn’t mention that Herrington was represented by law students in the Fourth Circuit from the University of Virginia School of Law's outstanding Appellate Litigation Clinic. So huge shout out to Madeline Killeen and Nikolai Morse, the law students who fought to get justice for this guy after a pile of licensed attorneys and judges failed him.

Conclusion

Herrington’s case is frankly an embarrassment to the judicial system. A prosecutor brought a charge against Herrington that he was 100% innocent of. The trial judge missed it. His appellate lawyer missed it. The Virginia Court of Appeals and Virginia Supreme Court both missed it. And the federal district court missed it. It wasn’t until his case made it to the Fourth Circuit, years after he was found guilty, before everyone realized Herrington was actually innocent of one of the crimes he was convicted of.

I spent the first nine years of my career as a public defender and appellate defender where I was appointed to represent indigent criminal defendants like Herrington. I no doubt made many mistakes along the way. We cannot expect perfection out of prosecutors, defense attorneys, or judges. But let Herrington’s case be a lesson to everyone who works in this field, take your job seriously and take pride in what you do. Admit when you’re wrong, learn and grow from it. We can be better tomorrow than we were today if we have the humility to learn from our mistakes. And don’t forget that there is a law student somewhere that is already a better lawyer than you.

adam@ruffinappeals.com

(803) 470-5629

1320 Main Street, Suite 300,

Columbia, SC 29201