As long as a judge in Virginia rules in favor of an accused criminal, prosecutors and legal experts in the state claim, the judge can ignore the law - and get away with it.
"It's absurd," says legislator. "It's confusing," says a judge.
Virginia is one of only two states - Texas is the other - where the prosecution has virtually no right of appeal in a criminal proceeding. If a judge thinks for any reason a criminal case should be dismissed, there is no way in Virginia to examine the judge's thinking prosecutors say.
"Theoretically, a judge could say 'I don't believe in rape,'" said Steven A. Merril, deputy commonwealth's attorney in Fairfax County. "And every time we came before that judge we would lose a rape case."
The problem has not yet gone that far. But in Fairfax County, two lower court judges ruled in the last year that because they believe abortion is wrong, antiabortion protesters have the right to trespass at abortion clinics.
The decisions stand directly in conflict with U.S. Supreme Court rulings and Virginia law. But because the judges ruled for the defendants, the prosecution could not appeal, not even to get a higher court ruling on the judges' reasoning.
The judges' thinking "makes no sense whatsover," according to Merril, who handled the case against the protesters. After the decisions, Merrill said, police didn't want to waste their time arresting protesters and prosecutors didn't want to waste their time prosecuting them.
"When the lower court judge can't be forced to follow what the higher court judge has already decided, you are really in a pickle," said Commonwealth's Attorney Joseph H. Campbell, of Norfolk, who has had problems prosecuting city blue laws because a lower court judge claims they are unconstitutional.
The inability of the prosecution to appeal decisions in criminal cases, Campbell argues, "helps foster incompetence and arrogance (among judges) and encourages an attitude that they are the law."
Robert M. Hurst, chief judge of the Fairfax General District Court, disagrees that Virginia judges are incompetent or arrogant. But he said the inability of the prosecution to appeal legal questions "fosters confusion among the lower courts.
"If a judge misinterprets the law," Hurst said, "perhaps the commonwealth should be able to appeal on the legal question involved."
The Fifth Amendment prohibits the government from prosecuting a person twice for the same offense - the guarantee against double-jeopardy.
In most states and in federal prosecutions legal jeopardy begins when a jury is impaneled or when the court in a nonjury trail begins to hear evidence. The federal government and most states - including the District of Columbia and, in some instances. Maryland - allow the prosecution to appeal a judge's pre-trial decisions before the defendant is placed in jeopardy.
In Virginia, however, the prosecution has no such right. The American Bar Association, the National District Attorneys Association and many Virginia prosecutors say this is unfair and leads to confusion in the law.
For instance, the attorney general's office in Richmond receives "many complaints" from Virginia prosecutors about judges who throw out criminal cases on the grounds of an illegal search for evidence, according to James E. Kulp, a deputy attorney general who directs the criminal division.
"On period motors the judges make a ruling that effectively ends the case," Kulp said.
In 1972, a Fairfax Circuit Court judge threw out a drug charge against a man caught with nearly a ton of marijuana in his U-Haul trailer. The search of the trailer was illegal, the judge ruled. The man was later charged in federal court, where a judge ruled the search was legal.
Prosecutors in Virginia say they are more concerned with confusion created by contradictory lower court rulings than by the prospect of a guilty man going free.
Andre Evans, Commonwealth's attorney for Virginia Beach and president of the Virginia Commonwealth's Attorneys Association, said it is unfair to the public "to allow a judge the unfettered discretion to suppress evidence, to have absolute authority not subject to review by anybody."
For years the Commonwealth's Attorneys Association has advanced legislative reform that would permit prosecutorial appeal in criminal cases, but the General Assembly has taken no action.
Del. Floyd C. Bagley (D-Prince William) has, for the last three years, introduced a bill that would allow a prosecutor to appeal an acquittal in order to get a binding ruling on the validity of the law involved. The acquitted person would not be affected by a higher ruling.
As Virginia law no stands, he noted, a judge who wants a higher court review of a law sometimes is put in the "very difficult position where he has to find someone guilty to get the question of constitutionality decided."
The rulings that condoned trespassing by antiabortion protesters at the Northern Virginia Women's Medical Center forced the clinic management to get a federal court injunction against the protesters.
In 10 states, including Delaware, such action would not have been needed. Prosecutors have the right to appeal issues of law.
Without that right, said Delaware's Chief Prosecutor Charles M. Oberly III, there would be a "lack of uniformity in the laws of the state."
In Virginia, a law similar to Delaware's would probably require a constitutional amendment, according to Kulp of the attorney general's office.
Such an amendment, which requires two approvals by the General Assembly and a state referendum, is unlikely, according to Virginia prosecutors.
One reason, according to Fairfax Commonwealth's Attorney Robert F. Horan Jr. is that the legislature is dominated by defense attorneys.