THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, September 18, 1995 TAG: 9509180037
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 241 lines
Police said Gary Watts was killed for playing his radio too loud. The murder trial was scheduled for last November in Portsmouth Circuit Court. But then the prosecutor got a delay.
It was scheduled again for January, then postponed again because the defense lawyer wasn't ready.
The trial was postponed again in March, and in May, and in July, and finally last week. Now, 15 months after Gary Watts' death, there has been no trial. The defendant remains free on bond.
``We're so angry we don't even know where to begin,'' said Watts' mother, Barbara Kenady. ``Every two months they set this trial and it never gets there.''
Welcome to Portsmouth Circuit Court, the slowest criminal court in Virginia, according to statistics from the Virginia Supreme Court.
Portsmouth has lots of company in Hampton Roads, which has four of the five slowest criminal courts in Virginia: Chesapeake, Virginia Beach and Newport News, in addition to Portsmouth.
Norfolk is close behind, ranked 10th-slowest among Virginia's 31 judicial circuits.
Suffolk and Hampton courts are in the middle of the pack.
Meanwhile, other cities and counties with populations and crime rates similar to those in Hampton Roads - Richmond, Alexandria, Henrico County and Fairfax County - have some of the fastest criminal courts in the state, statistics show.
That's no accident, say the folks who run those courts. The fast courts are fast because they want to be.
``A big piece of it has to be attributed to the judges,'' says David Hicks, commonwealth's attorney for Richmond, which has the second-fastest criminal courts in Virginia. ``Here the judges don't abide by much delay. The judges really, really push us to set (trial dates) and keep them.''
It's the same in Alexandria, home of the fastest criminal courts in Virginia.
``Lawyers know if they're not ready, they're going to catch some flak from the judge,'' Alexandria Commonwealth's Attorney John E. Kloch says.
But does swift justice make a difference?
Lawyers and judges all agree that speed means something when evaluating courts. ``Justice means a lot more when it's swift and sure,'' says Virginia Beach Commonwealth's Attorney Robert Humphreys.
But rating the quality of justice - the ability to convict the guilty and free the innocent - is difficult, maybe even impossible.
The Virginia Supreme Court tries to measure justice in a lot of ways. Every year, the court publishes a fat statistical book on local courts: Which have the heaviest case loads? The fastest civil trials? The most divorces? The fewest plea bargains?
One measure is flat-out speed: How fast do Virginia's courts handle criminal cases?
Some lawyers and judges, especially those in slower courts, don't think speed is a good measure of anything.
Portsmouth Commonwealth's Attorney Martin Bullock, for example, isn't overly impressed with speedy courts like Richmond's and Alexandria's. ``I applaud them for being able to prosecute cases at that rate,'' Bullock says, ``but it doesn't necessarily mean that is quality justice.''
Chesapeake Commonwealth's Attorney David Williams is another skeptic.
``If push came to shove,'' Williams says, ``I guess anyone could do that, make every case come in under 120 days. . . But the social cost would be enormous.''
So how fast is fast, anyway?
The state Supreme Court has its own measure. It recommends that 90 percent of all felony defendants be tried within four months of arrest.
Most lawyers and judges think that goal is unrealistic.
In fact, no court in Virginia meets that goal. Most don't even come close.
In Portsmouth, for example, only 27 percent of all felonies in Circuit Court are adjudicated within four months. In Chesapeake, it's 32 percent. In Virginia Beach, it's 39 percent.
But some courts try hard to meet the goal, and some come very close.
In Alexandria, for example, 87 percent of all felony cases in Circuit Court are finished within four months. In Richmond, it's 82 percent.
In those cities, speedy trials are a priority. ``The faster we can get to trial, the more interested witnesses are, the easier it is to find them,'' says Kloch, the Alexandria prosecutor.
What's holding up Hampton Roads' courts?
One word: continuances.
As in the Portsmouth murder case, slow justice usually starts with lawyers asking for postponements, and judges granting them, sometimes over and over.
TOO SLOW OR JUST RIGHT?
Bob Humphreys was frustrated.
For five years, he has complained about unnecessary delays in Virginia Beach courts. For five years, Humphreys says, he has been ignored.
``I'm not happy and I've never been happy with the pace of justice in Virginia Beach,'' Humphreys says. ``Half of the daily docket gets continued. That's too high.''
This spring, Humphreys acted.
For six weeks in May and June, Humphreys' staff recorded every time a felony case in Circuit Court was continued. The results:
46 percent of all hearings were continued.
Half were continued when the case had been postponed at least twice before. Twenty cases had been continued four times or more.
Judges denied only three continuance requests, while granting 449.
Among the reasons for the delays:
23 percent were continued because a witness or police officer was not available.
20 percent were continued because the defense attorney was unavailable, unprepared or unaware of the court date.
20 percent were requested by prosecutors.
Armed with those numbers, Humphreys wrote to Virginia Beach's nine Circuit Court judges in July.
``As you may know,'' Humphreys wrote, ``I and many of you have complained for some time about the number of continuances being granted in criminal cases and the resulting increase in the average length of time it takes to close a felony file. . .
``I respectfully suggest that until the bench vigorously asserts a position that attorneys (including those in my office) appear on time and prepared, the public's respect for our system and profession will continue to deteriorate.''
But Chief Judge Jerome B. Friedman says that, despite the numbers, continuances are not a problem.
``Frankly,'' Friedman says, ``I've never had people complain that there was a problem getting cases heard. . . Until I see we're having a problem of some sort, as long as cases are being handled in an efficient and professional manner, I think we're doing our job.''
The situation is improving, Friedman says. In 1990, 63 percent of all felony cases were continued while in 1994, it was 56 percent.
For judges, Friedman says, it is a matter of law and practicality. If a lawyer comes to court and is not ready or does not have all his witnesses, ``it's pretty hard to try a criminal case. . . You have to be careful of people's due process rights,'' he said.
In any event, Friedman says, most continuances are agreed to by both sides. Humphreys' statistics bear him out: Prosecutors and defense lawyers agreed on 86 percent of all continuances from May 1 to June 15.
``I can count on two hands the number of contested continuances I've had in criminal cases,'' the judge says.
Humphreys says that may be misleading.
``Judges say, `We grant continuances routinely because you never object,' '' Humphreys says. ``But my lawyers tell me there's no point in even objecting because they get granted every time anyway. . .
``What we hear all the time are not very good reasons. `I'm not ready.' How many times can you use that excuse and get away with it? Out here in Virginia Beach, apparently a lot of times.''
GETTING BETTER
In Norfolk, judges were worried enough to do something about it.
Two years ago, Chief Circuit Judge John Morrison wanted to know why criminal cases took so long. At the time, Norfolk courts were fifth-slowest among Virginia's 31 judicial circuits.
So Morrison hired a consultant and appointed a group of lawyers - both prosecution and defense - to find out what was wrong.
One not-surprising answer: Judges were granting too many continuances.
The result: There are now new rules to speed up cases. They began in January.
``We've all agreed we are going to be tougher on continuances,'' says current Chief Judge Lydia C. Taylor. No more automatic first-time continuances. No more unlimited delays so defendants can find lawyers. Both were common practices.
Also, criminal cases now stay with one judge, instead of bouncing from judge to judge. That makes it harder for lawyers to get repeated delays. Under the old system, no single judge felt responsible for a case.
Other rules encourage lawyers to get together quicker to agree on trial dates and motions, then stick by their agreements. The goal, Taylor says, is to try felony cases within two months of indictment.
It is too early yet to know if the new system is working. The court backlog is gradually being reduced, but ``it will take quite a while to work its way through the system,'' Taylor says.
Not everyone is thrilled with the new system.
``The defense bar was not particularly in favor of it, but we went along,'' says Franklin A. Swartz, a Norfolk attorney who represented defense lawyers on the Morrison committee. ``I did not feel it was unreasonable the way it had been.''
Still, Swartz says, ``We asked for and got a little leeway. . . Overall there was a speedup of the cases.''
WHERE IT WORKS
The key to speeding up courts, outsiders say, is judges making it a priority.
In Alexandria, for example, the rule of thumb is: Try every felony within 60 days of indictment, if possible.
``That's not always the case, but that is the rule, and the judges really stick to it,'' Kloch says. ``You have to come up with a pretty good reason for a continuance.''
In Richmond, which has a population and crime rate similar to Norfolk's, justice is swift because ``the judges keep pushing the cases through. They set them early and they keep them on schedule,'' Hicks says.
By contrast, Chesapeake's chief prosecutor says he has no idea why his courts are so slow. ``I'll be honest with you. I don't know how those other jurisdictions do it,'' Williams says.
In Portsmouth, Bullock knows that continuances are the problem and, like Humphreys, he has tallied them. As in Virginia Beach, about half of all felony cases are continued.
Yet Bullock says he has no specific plan to speed up the process.
``It's a general problem we want to improve on,'' Bullock says. ``It's going to take all of us - the defense bar, my office and the courts - to attack this problem.''
Meanwhile, Barbara Kenady waits for the seventh scheduled trial date of the man accused of killing her son. She is not confident the case will be heard.
``You watch,'' Kenady says. ``Something will come up and it will never be.'' MEMO: 15 MONTHS AFTER HER SON'S DEATH, WOMAN IS STILL WAITING FOR TRIAL
Barbara Kenady can't get over it: Her son is dead, but the man
accused of killing him is free. Worse, there has been no trial, 15
months after the crime.
``I don't understand,'' Kenady says, ``Why this guy is walking the
streets, charged with first-degree murder?''
Police say her son, Gary Watts, 34, a self-employed roofer, was shot
to death in June 1994 during what started as an argument over loud
music.
Kenady says her son was killed because he was gay and living with
another man, and the lover's father didn't like it. The father, Billy L.
Taylor, 58, lived in the same house. He was charged, then released on
$2,500 bond.
Since then, the trial was scheduled six times and Kenady, who lives
in Kentucky, made plans to come to Virginia.
Each time, the trial has been postponed because, according to court
records and Watts' family:
November 1994: Prosecutor fears it is too close to Christmas and
jurors may feel sympathetic toward the defendant.
January 1995: Defense attorney needs more time to prepare.
March 1995: Defendant has heart attack.
May 1995: New prosecutor needs more time to prepare.
July 1995: Defendant is too sick for trial. Prosecutor objects; gets
a doctor's note saying the defendant can stand trial. Judge grants
continuance.
September 1995: Medical examiner unavailable to testify.
The trial now is set for Nov. 8.
``Where's justice?'' Kenady asks. ``Justice sucks. There ain't no
justice.''
ILLUSTRATION: Color photo by Paul Aiken, Staff
``We're so angry we don't even know where to begin,'' said Barbara
Kenady. Though her son, Gary Watts, was killed 15 months ago, his
accused killer has yet to go on trial.
Chart by Ken Wright, Staff
Fastest and slowest courts
KEYWORDS: SPEEDY TRIAL CIRCUIT COURT CONTINUANCES by CNB