All of my petitions for appeal, to date, have been court appointed. The court reporting firms know that whether they turn over the transcripts to circuit court clerk's office on the day I order them or on the last day they could be turned in they will get paid. Guess when they are delivered to the clerk's office . . . every . . . single . . . time. Even when they are ordered to arrive early they usually arrive on the last day; they are due 60 days from the final order and court reporters can count to 60. I cannot prove that I am moved to the back of the list in order to favor "paying clients" but I have my suspicions. This has caused me a great deal of pain recently.
First, there was the case wherein the court reporter screwed up and counted her 60 days from the sentencing hearing rather than the date the Order was signed. And thank goodness she did because three days of transcripts weren't delivered when they were handed in. I got a two week extension for the filing of transcripts. The remaining transcripts were still filed late (after the extension). The Court of Appeals refused to allow the late transcripts to be used in the petition or argument. This was a huge problem because the late transcripts were the pre-trial motions - including the constitutional argument which is the primary basis for the appeal. I had to default so that I could wait until after 01 July when the law would change and allow me to file a motion for a delayed appeal for my client (prior to that the only option was for the client to waste his one habeas to get back in front of the court). In the mean time, the Court of Appeals filed a Bar complaint against me. The Bar was gracious enough to dismiss it after I provided copies of the motion for delayed appeal, notice of appeal, and petition. However, the Bar investigator reminded me that it is my responsibility to insure that the transcripts are timely filed.
Then comes the second case wherein the transcript is due on a Sunday. On Friday I go to the clerk's office and check. It isn't there. I call the court reporting firm and the person on the other side freaks out. She calls me back about 15 minutes later and tells me that the court reporter forgot my transcript. FORGOT MY TRANSCRIPT. However, she will have it done Monday and because that's the first working day after the due date they will deliver it then (and it will still be valid). Luckily, the transcript was fairly short and it was hand-delivered on Monday.
Third, there's the transcript of a jury trial which I'm appealing due Monday of this week. I've been bugging the clerks at the circuit court clerk's office for about a week prior to the due date (because in this county they order the transcripts rather than me). I check on Monday and the transcript hasn't come in. I start to sit down and write another motion to continue the due date for the transcript and drive it up to Richmond to hand deliver it to the Court of Appeals so that it arrives in time. Then, a little piqued, I decide to first call the court reporter firm. Whoever answered the phone was an expert at dealing with unhappy people because before I could get going she got the case name and told me the transcript was being hand delivered right now. Sure enough, the clerk called my office about 30 minutes later and told me they had the transcripts.
I was in the courthouse Wednesday to do a couple things and pick up the transcripts. While I'm there I stop by to talk to Tom (who was the prosecutor in the case) about the case. He's already had a look at the transcripts and tells me that parts of the trial aren't in them. I take the transcripts back to my office and found this:
"NOTE: The jury panel is called, they are sworn on their voir dire, the jury is selected and sworn to try the issue." - None of the jury selection is transcribed.
"NOTE: Opening statements are made by counsel; and the taking of evidence is begun as follows:" - The opening statements aren't transcribed.
"NOTE: The hearing is continued in the presence of the jury, the defendant being present; the Court now reads the written instructions to the jury. Following the Court's reading of the instructions, the case is argued by counsel, whereupon the jury retires to consider its verdict and returns." - None of the instructions or closing arguments are transcribed.
YOU HAVE GOT TO BE KIDDING ME!
Luckily, the errors I'm going to argue were not in those sections of the trial. But how the heck does the court reporter know that? So now I don't only have to pray that the transcript arrives on that last day so that I don't default in order to do a delayed appeal (and get a helpfully filed Bar complaint from the Court of Appeals). I also have to read every last sentence in the thing before close of business on that day to make sure that the court reporter put everything in.
But, you say, didn't you say above that you could file for an extension of the date on which the transcripts have to be turned in? Sure, I can do that. Of course, the ability to do that is pretty worthless if the transcript arrives at 2:30 while I'm at my office on the last day it's due. Even assuming I'm called by the clerk the moment the transcripts arrive and leave my office that very second I'd get to the court about 3:00. 15 minutes later I've gotten into the courthouse and the clerk has signed over the transcripts to me. Let's assume the transcript is only a few hundred pages. I can probably do a quick read of that by 3:45. And, let's assume I have my portable computer and portable printer with me (yes, I am a geek). If I move quickly, I can set up the system, type and print the motion in about 20 minutes. Abandoning my computer et al. at the courthouse I run out to my car and screech from the courthouse parking lot at about 4:10. Let's assume that I hit warp speed and there are absolutely no officers between me and Richmond (not to mention no traffic jams). I get to the city about 4:45. The city is magically clear of traffic so I get to the courthouse in ten minutes; 4:55. Of course, there's no parking in the city so I abandon my car in the middle of the street in front of the Court of Appeals. I run through the metal detector, past the Capitol Police officer, dash up the stairs and barrel through the clerk's office door at 4:59, bellowing for a clerk to stamp the motion in so that it is timely filed. The Capitol Police officer then tackles me and hauls me off to jail, but I got the motion to court on time. Assuming, of course, that the Virginia Court of Appeals' clerk's office doesn't close at 4:30 like a lot of other government offices do.
For some reason I've never tried that method of filing motions.
There remains yet another option. I could, via certified mail, file a motion for extension whenever the transcript hasn't arrived 3 days before the 60th day (gotta do it a couple days early to make sure it gets to the clerk's office before it's due). Of course, that would mean I'd be filing motions to extend in each and every one of my appeals and I can't think of a better way to endear myself to the appellate court judges (and, perhaps more importantly, the clerks). I just cannot see that turning out well. Although, to be honest, that might be what I'm forced to do.
I just love being on the hook for something which is at least partially out of my control.