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Reform in Virginia

Saturday, January 29, 2005; Page A24

VIRGINIA GOV. Mark R. Warner (D) has endorsed a bill that would usefully reform the way the state handles criminal appeals. In an interview this week, the governor's spokeswoman, Ellen Qualls, said Mr. Warner supports a bill proposed by the state's Indigent Defense Commission and introduced by Del. David B. Albo (R-Fairfax). The proposal responds to the enormous number of appeals thrown out of Virginia courts because of filing errors by attorneys. The problem has deprived untold numbers of convicts of their right to appeal their convictions and sentences. One component of a solution is to make it easier to reinstate an appeal that a lawyer has blown. Mr. Warner's support, particularly if he really pushes the reform, could make a big difference.

Attorney General Jerry W. Kilgore remains a potential stumbling block. Mr. Kilgore has no position on the bill, according to his spokesman, Tim Murtaugh, who has also said the attorney general sees no need for a legislative remedy. But his office has been working with Mr. Albo on drafting alternative language, and Mr. Albo says the attorney general's team didn't seem opposed to a change but had suggestions for how best to accomplish it. If there is a solution that Mr. Kilgore could support, he should speak up.

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Virginia's procedural rules for appeals are irrational, and both the state Supreme Court and the General Assembly need to take steps to change them. Mr. Albo noted in an interview last month that, "I'm not the smartest lawyer in the state, but I'm not the dumbest either and even I have trouble" with the rules governing appeals. In fact, he said, he hasn't filed an appeal in 10 years because it's so easy to mess one up that he would have to charge too much "to take on that kind of liability."

It's a bad state of affairs when procedural hurdles are so onerous as to scare away competent counsel. Mr. Albo's bill needs some technical work and is not a complete solution to the problem of blown appeals. But it is a critical start -- one that would allow those who fall victim to bad lawyering and the state's rules to get their appeals back without prejudice to their other legal interests.

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