THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, March 19, 1996 TAG: 9603190262
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY ANGELITA PLEMMER, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 162 lines
Two Circuit Court judges said in interviews that they have been forced to dismiss at least three felony cases, and to delay other serious cases, as a direct result of errors by the Circuit Court clerk's office.
Judges Von L. Piersall and Johnny Morrison said in a joint interview last week that poor record-keeping by the office has also caused state officials to incorrectly report that Portsmouth's courts have the state's biggest backlog of criminal and civil cases.
The judges could not say exactly how many cases have been affected by poor record-keeping, and they would not disclose details of the cases. The three cases the judges had to dismiss were drug cases, they said.
Procedures in the clerk's office are currently under review by a state Supreme Court official. The review has shown that at least 3,000 civil and criminal cases that should have been closed out by clerks were still listed as pending, said Paul DeLosh, who is conducting the review.
In an interview Monday, Circuit Court Clerk Walter M. ``Square'' Edmonds said that the cases that appear to be backlogged were the result of one clerk's error. He also said that he was aware of only one incident in which a case was dismissed because of a clerk's error and that such problems do not occur often.
``Three times out of thousands and thousands of cases. . . I don't understand why it's a big problem,'' Edmonds said. ``They've got more (cases) on the docket that are pending than (cases) that should have been dismissed.''
Edmonds also said his office is working to curtail the problems found by DeLosh's review.
DeLosh's examination of office procedures and the case backlog was requested by chief CircuitJudge Norman Olitsky in November following reports that in 1994, Portsmouth's courts were the slowest in the state and had the biggest case backlog. A 1995 report by the state high court said Portsmouth had 11,101 pending cases in 1994, the most in the state.
Those figures were based on information provided by the clerk's office. Piersall and Morrison said they had felt those numbers were suspicious and believed improper reporting or record keeping by the clerk's office was to blame.
But perhaps more serious were the judges' assertions that cases have been dismissed or delayed because of faulty record-keeping in the clerk's office. Other Portsmouth law enforcement officials also said some cases have been dismissed as a result of errors by the clerk's office, but none would agree to on-the-record interviews.
Morrison noted that his wife Cynthia ran against Edmonds in a Democratic primary last year in seeking the Circuit Court clerk's job, but said his comments were not politically motivated. Edmonds, 62, was re-elected to a third eight-year term in November. His annual salary is $87,402.
Piersall said he once threatened Edmonds with contempt of court after Piersall was forced to dismiss a drug case due to an error by a clerk.
``We have had some cases where the drug reports were not stamped by the clerk's office as having been received on a certain date,'' Piersall said. ``They have to be filed seven days prior to trial.''
The problem on at least two occasions, Piersall said, is that the clerk's office failed to record the date drug reports were received in the office. Since there was no way to prove when the reports had been filed, they were not admissible in court.
``After the first time I complained,'' Piersall said.
After a second case had to be dismissed because of an error, ``I told (Edmonds) if that keeps happening, I'm going to hold him personally responsible.''
Edmonds said he recalls only one incident in which Piersall called him into the courtroom and told him a clerk had failed to properly stamp a report.
``He said this has happened before, but what specific instance, I don't know,'' Edmonds said. ``If there were (three cases), they didn't call my attention to it. Judge Piersall is the only one that's spoken to me about that.''
Edmonds said the clerk probably forgot to stamp the report.
``Why she didn't stamp it, I don't know,'' Edmonds said. ``I don't check every file that goes through the office. I wish I could.''
Piersall said the prosecutor is obligated to look in the case file before the trial date to ensure that the drug report has been properly filed. If it it hasn't been, the prosecutor must bring the chemist who performed the drug analysis into court to testify about the results.
``The other courts (in Portsmouth) don't seem to have a problem,'' said Piersall, who was promoted to Circuit Court from Juvenile and Domestic Relations Court in February 1995 .
Morrison, who was commonwealth's attorney for 10 years before his appointment to Circuit Court in 1991, said record keeping was a problem while he was prosecutor. ``Even before we got on the bench, other judges have (complained),'' Morrison said.
``I remember as commonwealth's attorney, I brought it to the attention of the appropriate officials,'' he said
However, Morrison said, ``the court just shouldn't be involved in trying to run the clerk's office, just like we shouldn't be involved in trying to run the Commonwealth's attorney's office.''
The clerk and the commonwealth's attorney are elected. Judges are appointed.
All four of the city's Circuit Court judges have told Edmonds of their concerns about record keeping in his office, Morrison said. The other two judges, Olitsky and Dennis McMurran, could not be reached for comment for this report. They did not return phone calls.
``I wouldn't know why a case would be dismissed. . . unless the judge called it to my attention,'' Edmonds said.
Morrison said he could recall at least one felony drug case he was forced to dismiss after clerks failed to record the date the drug report was received.
But a clerical problem can ``slow up a case,'' Morrison said. ``It can cause a case to be continued. It can sometimes cause a case to be dismissed.''
Asked how often the problems occur, he said, ``It happens too much.''
Piersall added: ``If it happens once, it's too much.''
The judges' comments come at a time when the Portsmouth judicial system is under scrutiny on several fronts.
In 1995, the city had a record 37 homicides. Portsmouth had the highest violent crime rate in South Hampton Roads in 1994, and in 1993 it ranked among the top 25 cities in the nation in per-capita homicides.
In addition to concerns about slow courts and backlogged cases, there has been criticism of low bonds for violent offenders and problems with witness intimidation. As a result, officials have enacted several new law enforcement and judicial initiatives to combat violence, which includs a joint federal task force composed of Portsmouth police and FBI agents.
Morrison said errors in the clerk's office have caused problems in civil as well as criminal cases.
In making a motion, attorneys sometimes read from documents in their files.
``You, as a judge, are listening,'' Morrison said, ``and then you see them keep flipping pages, and you finally ask them, `Well, what are you all are talking about? You're citing these cases and you're citing the law and reading from a memorandum. When did you file it, because there's nothing in the file.'
``And they say, `Yes sir, we filed it'. . . We say, `Well, it's not in here,' '' Morrison said.
``Then we go down to the clerk's office and find out invariably that it was filed and was received some time two or three weeks before the motion was made and it's on the floor somewhere or it's on somebody's desk.''
DeLosh, the Supreme Court official conducting the state review of the office, would not comment on whether the office is mismanaged.
He did say that some clerks did not understand how to properly conclude cases in the computer system that relays information to the state Supreme Court. He also noted problems with case processing, staff training, office procedures for providing access to case files and even instances where papers from court files were found on the floor instead of in the case file folders.
The incorrect reporting of caseloads to the state Supreme Court could affect funding and staffing of the clerk's office.
The current review of Portsmouth records is the most extensive DeLosh has conducted in his three years as a technical assistant for the state's 121 court offices, he said.
He also said that this was the first time he has had to bring in assistants to help conduct a review. DeLosh said he expects the review to last more than six months. ILLUSTRATION: TWO PORTSMOUTH CIRCUIT JUDGES AND THE COURT'S CLERK DISAGREE ON
RECORD-KEEPING DISCREPANCIES.
WHAT THE JUDGES SAY Johnny Morrison and Von L. Piersall say that
filing errors made by the clerk's office forced them to dismiss at
least three felony cases and to delay others.
WHAT THE CLERK SAYS Walter M. Edmonds says the cases that appear to
be backlogged were the result of one clerk's error and that his
office is working to address any problems uncovered by a Supreme
Court official.
by CNB