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Flunking the Easy Part

Saturday, December 18, 2004; Page A26

IT SHOULDN'T TAKE much courage for Virginia's political leadership to favor reform of the way the state handles criminal appeals. However tough the justice system should be, nobody argues that convicts should not be able to appeal. Yet that is what is happening across the state. As we noted over the summer, filing errors by attorneys cause the Virginia Court of Appeals to throw out enormous numbers of cases without considering their merits. One key to fixing this problem is allowing inmates whose appeals get tossed to reinstate them easily. The state's new Indigent Defense Commission appears poised to propose such a change to the General Assembly, and you might expect the state's top law enforcement officials would be eager to help. Alas, no. In response to our inquiries, neither Gov. Mark R. Warner (D) nor Attorney General Jerry W. Kilgore (R) endorsed change.

The problem isn't complicated. The Court of Appeals, with its rigid procedural rules, dismisses hundreds of cases a year because of missed deadlines. Some of the defendants whose cases don't get heard have compelling claims of defects at their trials; some may be innocent. Mr. Kilgore's office acknowledges that such errors, where lawyers are at fault, violate defendants' constitutional rights. Yet to get these appeals reinstated, convicts have to file petitions for habeas corpus. In this process, their lawyers cannot ethically represent them (though some do so anyway). And any habeas petition to restore an appeal must be handled extremely carefully, or it can gravely damage the convict's legal interests. Getting back the right to appeal can mean losing the ability later on to challenge other constitutional deficiencies that may have plagued the defendants' trials. Even when it works, it takes a long time.

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The General Assembly needs to change the rules so that an attorney can set a mistake right quickly and without jeopardizing a defendant's other rights. Doing this would not give defendants any new rights; it would merely ensure that fixing an attorney's error doesn't itself wreak irreparable injustice.

Yet, asked whether Mr. Warner would support such a common-sense legislative fix, Ellen Qualls, the governor's press secretary, replied in an e-mail that "we'll see what the indigent defense commission comes up with and go from there. As well as the crime commission." Even that was better than Mr. Kilgore's response. His spokesman, Timothy Murtaugh, notes in a statement that more than three decades ago, when the rules were looser, they were subject to abuse. While the attorney general's office will "look at any legislation dealing with procedural defaults," he said, "we don't see the need for such legislation. We believe the existing habeas system works quite well."

Among major statewide officeholders, only Lt. Gov. Timothy M. Kaine (D) was willing to endorse reform of the state's absurd rules. Mr. Kaine, in an interview, said that "defaulting an appeal is a very, very serious matter" and that he supports relaxing the rules for reinstating appeals where missed deadlines are entirely the lawyer's fault with "no complicity from the defendant."

This should not be a controversial stand. Jerry Kilgore and Mark Warner should be ashamed to preside over a system that melts down so completely and so often.

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