Loudoun judge defies Va. Supreme Court, continues to reopen immigrants' cases

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Washington Post Staff Writer
Monday, February 7, 2011

When is legal precedent not legal precedent?

When a judge disagrees with it. A lot.

In Loudoun County, Chief General District Court Judge Dean S. Worcester ruled last week that he would defy the Virginia Supreme Court because the justices were simply wrong.

The decision stems from a state high court ruling last month that said judges in Virginia may not use an obscure writ to reopen cases of immigrants who weren't told that a criminal conviction could lead to their deportation.

Worcester strongly disagreed and reopened his fifth closed case. It was filed by an immigrant who said he wouldn't have pleaded guilty in 2005 if he had known the conviction would result in his deportation.

"If this Court were to abide by the ruling" issued by a unanimous state Supreme Court, Worcester wrote, "a constitutional violation will stand uncorrected. . . . The Court will not allow this to happen."

Loudoun prosecutors were flabbergasted. Even the defendant's attorney was shocked.

"We respectfully disagree with the judge's decision," Loudoun Commonwealth's Attorney James E. Plowman said. "We were under the impression that the Supreme Court was extremely clear in its ruling."

Defense attorney Rob Robertson was surprised to win a case the Supreme Court had apparently declared he should lose, but he said, "It is very refreshing to see that there are judges in the commonwealth who are not going to let a constitutional violation stand."

Plowman said he hadn't decided his next move in the slightly confusing legal area of a case that ended nearly six years ago. But, he said, "we are going to continue to fight this with every legal remedy that we have."

Worcester said he could not comment on a pending case. On Friday, fellow Loudoun District Court Judge Julia T. Cannon, faced with an identical circumstance, declined to reopen a case and wrote that "lower courts are obliged to abide by rulings of appellate courts."

The issue heated up in Alexandria and Norfolk last year when defense lawyers used the writ of coram vobis, meaning the "error before us," to persuade judges to reopen and amend some old convictions. According to Virginia law, the writ can be used to point out "any clerical error or error in fact for which a judgment may be reversed or corrected."


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