13 January 2005

Vital Changes to Virginia Law

Becky Dale points me to this editorial in the Washington Post about some serious remedies offered this year for the failings in Virginia's law. The first paragraph is over the top but the second and third address a couple of changes which are needed in the Virginia judicial system.

(1) The first addresses the problem of the very strict enforcement of formality in Virginia's appellate process. It is unseemly to deny appeals because of an error in either the form of the petition or the formality of the petition process. It is the favoring of form over function evidencing a policy which favors dismissal of petitions without considering the merit of the legal argument.

On the other hand, there is the necessity of some sort of formality in order to keep the system operational (i.e. a petition for a direct appeal probably shouldn't be allowed 13 years after the case has ended). With that in mind I would have favored some sort of exception to Rules 5A:18 and 5:25 added as a second paragraph:
If there is an error in the filing of an appeal the opposing party may allege that such error is prejudicial and argue this as part of its brief. The prejudice must be clear and convincing for the court to deny an appeal on that basis. A filing received by the court 10 days after the date it was due is subject to a rebuttable presumption that it a prejudicial error.
Even better, with some minor alterations this could be made a full blown statute.

The current proposal (HB 2628) is a good try but has some issues:
§ 8.01-654.3. Illegality of detention; failure to file appeal.

A. If the petitioner alleges as a ground for the illegality of his detention the failure of his attorney to timely file an appeal, he shall file with the circuit court a petition stating all allegations of fact relating to that attorney error.

1. The circuit court shall conduct a hearing on the petition within 60 days of filing and shall report its finding within 60 days of the hearing to the petitioner and the Court of Appeals.

2. If the circuit court finds by a preponderance of the evidence that the default (i) occurred due to attorney error, (ii) did not result from the petitioner's failure to exercise due diligence, and (iii) denied petitioner an opportunity to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, grant the party leave to appeal. The computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.

3. The filing of a petition pursuant to this section shall toll the time limitation for filing a habeas petition contained in subdivision A 2 of § 8.01-654.

a. If the circuit court grants leave to appeal pursuant to subdivision 2, the time limitation in subdivision A 2 of § 8.01-654 shall begin to run as of the date of the circuit court's final order relating to the appeal.

b. If the circuit court denies leave to appeal pursuant to subdivision 2, the time limitation in subdivision A 2 of § 8.01-654 shall begin to run as of the date of the circuit court's order of denial.

B. Any habeas petition filed subsequent to the denial or conclusion of an appeal pursuant to this section shall conform with all applicable requirements of § 8.01-654.
The main problem is that it is another habeas procedure. Inmates are not entitled to court appointed counsel on a habeas. I am ethically forbidden to undertake this action because it is an action against my failure and I have a conflict of interest. It is a difficult situation. While I have no doubt that it is meant to alleviate the situation I do have doubts as to its efficacy. Unfortunately, it is the only one offered this session. If you have the ear of a Virginia legislator I urge you to get him to consider something along the lines of what I propose above.

(2) There are actually two bills which propose raising indigent fees. The first is HB 1516 with this pertinent language:
1. In a district court, a sum not to exceed $120150 or such other amount as may be provided by law; such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under § 19.2-306, without a requirement for accounting of time devoted thereto; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;

2. In a circuit court (i) to defend a felony charge that may be punishable by death an amount deemed reasonable by the court; (ii) to defend a felony charge that may be punishable by confinement in the state correctional facility for a period of more than twenty years, or a charge of violation of probation for such offense, a sum not to exceed $1,2351,600; (iii) to defend any other felony charge, or a charge of violation of probation for such offense, a sum not to exceed $445550; and (iv) to defend any misdemeanor charge punishable by confinement in jail or a charge of violation of probation for such offense, a sum not to exceed $158200.
The other is HB 1596 with this pertinent language:
1. In a district court, a sum not to exceed $120180 or such other amount as may be provided by law; such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under § 19.2-306, without a requirement for accounting of time devoted thereto; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;

2. In a circuit court (i) to defend a felony charge that may be punishable by death an amount deemed reasonable by the court; (ii) to defend a felony charge that may be punishable by confinement in the state correctional facility for a period of more than twenty 20 years, or a charge of violation of probation for such offense, a sum not to exceed $1,2351,853; (iii) to defend any other felony charge, or a charge of violation of probation for such offense, a sum not to exceed $445668; and (iv) to defend any misdemeanor charge punishable by confinement in jail or a charge of violation of probation for such offense, a sum not to exceed $158237.
. . . .
[T]he provisions of this act shall become effective only if sufficient funds are appropriated by the 2005 General Assembly to fund the increase in court-appointed compensation affected by this act.
The worrisome part of the second bill is that it requires the increase to be funded. The General Assembly hasn't even fully funded the pay it has currently authorized (for instance a misdemeanor is officially authorized $120 but only actually pays $112). We can only hope they would fund the new changes.

I have previously posted about this issue in these posts:

How the Current System Works

Evil Court Appointed Attorneys

How to Keep Your Office Afloat Doing Court Appointed Work

Fixing the System

A Report

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