14 February 2011

Judge Dean Worcester: Compassionate Instincts, Bad Law

The Chief Judge of the General District Court of Loudon County, Virginia now stands in open defiance of the Virginia Supreme Court. He does this with the purest motives: the desire to temper law with mercy. As well, he is not doing it in the sub rosa fashion often seen in trial courts where judges rule contrary to binding precedent secure in the knowledge that most parties will not bother to attempt appeal or have the Virginia appellate courts agree to hear the appeal if it is attempted. No, Judge Dean Worcester has laid out his position clearly in a written opinion for the entire world to see. His instincts and openness are to be lauded.

The problem is that, no matter how noble his position may be, his opinion is badly askew from Virginia law and precedents.

This all rises out of collateral consequences from convictions. The US Supreme Court has declared that defense attorneys must be experts in immigration law so that they can counsel any clients they have who are not US citizens what immigration consequences will follow if the defendant is found guilty. Not surprisingly, attorneys who do not spend their lives intertwingled with labyrinthian immigration laws have missed rather insane portions of that law such as the fact that a misdemeanor domestic assault is an aggravated felony under immigration law. Thus, completely competent attorneys have given excellent advice on possible actions the defense can take in court and the direct consequences of those actions (“If you plead not guilty and are found guilty you will probably get X. If you take the plea offer you will get Y. There are 0/1/2/3 serious flaws in the prosecutions case and if we go to trial Z is the best tactic.”). Nevertheless, these criminal attorneys are incompetent if they do not know how a conviction of each and every particular statute in the Virginia Code will be interpreted under federal immigration law.

On the other hand, there have been harsh immigration consequences imposed upon individuals trying to live legally as aliens in the US. Years after they have committed rather minor offenses the federal government is deciding to throw them out of the country. Somehow, the inequity of allowing people to take root and become functioning members of society before deciding to throw them out over an offense several years past isn't coming home to roost where it should. Crowds with pitchforks and torches aren't descending on ICE or whatever congressional sub-committees rule over it; the federal system isn't taking any of the heat for being broken. Instead, it is sending the people it is wronging back to the State courts and telling them to get their immigration problem fixed there.1 The State courts, which did absolutely nothing wrong in their straight forward determination of guilt as to the original charge are being leaned on by the feds to fix a federal problem by altering their entirely legally correct finding or punishment. This is the rather impossible situation that has been dumped on the Virginia legal system.

In Virginia, attorneys for these put upon aliens looked for some way to get around (1) the fact their defendants had been found guilty, and (2) the STRONG presumption of finality in all cases finished. Virginia's judicial system isn't quite as final as it used to be. Semi-recent developments have created a writ of actual innocence and stopped the appellate courts from punishing an appellant by permanently denying a petition of appeal if the appellant's attorney made technical errors in the petition. However, neither of these were helpful to the attorneys' clients. In fact, there is nothing in Virginia's statutes or the Virginia Supreme Court's Rules which allow an alteration of a guilty finding or punishment after a certain time – time which had long passed. So, the attorneys got creative. They went to ancient writs and started using them in Virginia courts under the claim that these writs, coram vobis in particular, allow the original trial court to reopen cases and alter their outcome.

As you might expect, when some judges started to agree with these defendants' attorneys, the local prosecutors were not thrilled. People were being allowed to reopen long closed cases without any claim that they not guilty, but only a claim that the an outside force, the federal government, was imposing collateral consequences. It seems a little harsh for the prosecutors to try and uphold the integrity of the Virginia legal system in the face of federally imposed harm on these individuals. However, if one considers the bigger picture it does make sense.

If the writ of coram vobis is allowed to continue to be used in this manner, it means there is absolutely no finality to any conviction. If tied to the whims of the federal supreme court, every time the that court changes a constitutional standard there will be a wave of defendants back in court under writs of coram vobis claiming they received ineffective assistance of counsel and therefore should have their conviction and sentence reviewed (nothing says coram vobis is limited only to those out of prison). Convicted pre-Gant, after a defense attorney tells you “Yes, they can search your car after they arrest you”? The actual, correct interpretation of the 4th Amendment is a fact not known to the judge and you can come back to court under the writ.

Even worse would be the tying of the writ to unforeseen collateral consequences. Every single conviction has some sort of unforeseen consequence. It's impossible for the defense attorney to foresee and warn the defendant about all of them, or even most of them; inability to get a job, child custody issues, inability to get a visa to a foreign country, denial of admission to a college, refusal of the government to give an art grant, inability to enter a high school to attend your kids' play, &cetera. If the existence of an unforeseen or unwarned collateral consequence is all that is required the writ will allow defendants to come back over and over and over again.

(Post 1 of 4: 2d post at 3 p.m. Monday)

1 In fact, the cases which have gone to the Virginia Supreme Court got there because the federal system gave them a period of time to try and alter the Virginia convictions. This is clearly dumping a problem on others rather than fixing it at the source.

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