Credit Where Due: The General Assembly Steps Up

I know I vent a lot here about the statutes and rulings which are made at levels far above mine as a defense attorney. So, on those occasions when those above me got something right I think I'm obligated to put a word in.

You'll remember that the Washington Post was pounding on Virginia because of all the procedurally defaulted appeals. The appellate courts Virginian were very strict about any error as to form or timely filing and there were a good number of appeals thrown out because of these procedural errors. The only cure was for the defendant to file his one allowed habeas in order to get the case back online.

A lot of lawyers who've been practicing criminal law for a while have made procedural errors. Sometimes it's a brief filed a day late. Petitions were also dismissed if a required section was not included or labeled incorrectly. The one that seems to catch a number of people is the requirement by the Virginia Supreme Court that the petition for appeal contain both a "Questions" section and an "Errors Assigned" section. There is no reason for the "Errors Assigned" section since it is redundant (thus the Court of Appeals only requires questions). Usually the two sections are something like this:

Errors Assigned: The judge erred in ruling that the drug dog barking as a car drove by at 65 mph provided reasonable articulable suspicion for the stop. (Transcript page 20)

Question: Did the judge err when he ruled that the drug dog barking as a car drove by at 65 mph provided reasonable articulable suspicion for a stop? (Transcript page 20)

However, without the Error section the court would bounce the petition in a second even though it didn't affect any substantive matter.

In the last Legislative session, the Virginia General Assembly stepped up. The House offered the bill I discussed here which would only have fixed the error of timely filing but not the other problems. It was a step in the right direction but I had thought that it could be done better. Well, the General Assembly fixed it beyond my wildest hopes:

§ 19.2-321.1. Motion in the Court of Appeals for delayed appeal in criminal cases.

A. Filing and content of motion. -- When, due to the error, neglect, or fault of counsel representing the appellant, or of the court reporter, or of the circuit court or an officer or employee thereof, an appeal in a criminal case has either (i) never been initiated; or (ii) been dismissed for failure to adhere to proper form, procedures, or time limits in the perfection of the appeal as required by law or by the Rules of the Supreme Court; then a motion for leave to pursue a delayed appeal may be filed in the Court of Appeals within six months after the appeal has been dismissed or the circuit court judgment sought to be appealed has become final, whichever is later. Such motion shall identify the circuit court and the style, date, and circuit court record number of the judgment sought to be appealed, and, if one was assigned in a prior attempt to appeal the judgment, shall give the Court of Appeals record number in that proceeding, and shall set forth the specific facts establishing the said error, neglect, or fault. If the error, neglect, or fault is alleged to be that of an attorney representing the appellant, the motion shall be accompanied by the affidavit of the attorney whose error, neglect, or fault is alleged, verifying the specific facts alleged in the motion, and certifying that the appellant is not personally responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal.

B. Service, response, and disposition. -- Such motion shall be served on the attorney for the Commonwealth or, if a petition for appeal was granted in the original attempt to appeal, upon the Attorney General, in accordance with the Rules of the Supreme Court. If the Commonwealth disputes the facts alleged in the motion, or contends that those facts do not entitle the appellant to a delayed appeal under this section, the motion shall be denied without prejudice to the appellant's right to seek a delayed appeal by means of petition for a writ of habeas corpus. Otherwise, the Court of Appeals shall, if the motion meets the requirements of this section, grant appellant leave to initiate or re-initiate pursuit of the appeal.

C. Time limits when motion granted. -- If the motion is granted, all computations of time under the Rules of the Supreme Court shall run from the date of the order of the Court of Appeals granting the motion, or if the appellant has been determined to be indigent, from the date of the order by the circuit court appointing counsel to represent the appellant in the delayed appeal, whichever is later.

D. Applicability. -- The provisions of this section shall not apply to cases in which the appellant is responsible, in whole or in part, for the error, neglect, or fault causing loss of the original opportunity for appeal, nor shall it apply in cases where the claim of error, neglect, or fault has already been alleged and rejected in a prior judicial proceeding.

(There's a similar statute for the Virginia Supreme Court)

That is an amazing statute and it will go into operation 01 July 2005. It fixed the conflict of interest problem inherent in habeas petitions by taking it out of the habeas section and making it an appellate motion. It allows things to be fixed which are not in the control of the lawyer (I cannot make a court reporter type the transcript faster - all I can do is call and yell). It gives an amazingly fair window within which to fix the problem. It doesn't take away the client's habeas rights.

The only disturbing part is the prosecutorial veto in subsection B. 99% of prosecutors won't abuse that veto. What do they care? It's the Attorney General's problem. However, in the case where you have someone who does there isn't even a hearing or a weighing of the argument by the appellate courts. It just gets dropped.

Still, it's an amazingly well put together statute and our Legislature should be complimented for it.