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A Useful Reform

Wednesday, March 30, 2005; Page A14

VIRGINIA GOV. Mark R. Warner signed a highly technical yet deeply important reform to the commonwealth's criminal justice system last week. The bill, proposed by the state's new Indigent Defense Commission, responds to the appalling number of criminal appeals dismissed by state courts not because they lack merit but because of missed filing deadlines by attorneys. In a statement, Mr. Warner rightly noted that Virginia was "one of the strictest states in the nation with respect to procedural defaults of this kind" and described the bill as "a responsible and needed reform."

The bill, pushed by Del. David B. Albo (R-Fairfax), does not entirely cure the problem, which we described in a series of editorials last year. Until the courts change their own Byzantine rules -- which require the dismissal of appeals when key documents are filed even a single day late -- incompetent or simply overburdened lawyers will continue to blow cases. Yet the new law does create a far simpler and more reasonable process for reinstating blown appeals that will not jeopardize a convict's future ability to challenge his conviction as the price of restoring the lost appeal. For those inmates now being irrationally denied appellate review of their trials or sentences -- some of whom may be innocent of the crimes for which they are serving time -- this will make a critical difference.

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That this bill was controversial shows how far Virginia has to go in forging a justice system of which the state can be proud. Its passage was by no means a foregone conclusion: The state attorney general's office opposed it as "unnecessary," and the state Supreme Court raised concerns as well. While it ultimately passed both houses of the General Assembly overwhelmingly, it survived key committee votes by only narrow margins.

Moreover, the defaults bill was the only significant step the General Assembly took this year to improve the state's woeful indigent defense system. The legislature once again balked at lifting the obscenely low statutory caps on fees for court-appointed lawyers, mustering only a small amount of new money that will still fail to fully fund even the existing caps. Missing filing deadlines is only one way for an inadequate lawyer to fail a client with tragic results. Until legislators create and fund a system for providing reasonable counsel to poor people accused of crimes, gross injustices will surely continue.

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