Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, February 21, 1995 TAG: 9502210060
SECTION: EDITORIAL PAGE: A-5 EDITION: METRO
SOURCE: ROBERT C. HAGAN JR.
DATELINE: LENGTH: Medium
Convicted defendants can comb the trial records for real or fancied errors and appeal first to the Court of Appeals and then to the Supreme Court in hopes of reversing the conviction. The commonwealth has no post-conviction right of appeal.
In fact, the only issues considered on appeal are those that favor criminals. The commonwealth cannot raise issues for review. Only defendants can appeal to the Supreme Court. If the defendant wins in the Court of Appeals, the decision is final. With but one exception, when a defendant wins dismissal of an indictment on a pretrial procedural motion, the trial court's decision is final.
The result is a one-way system of appeals in which criminals have everything to gain, and the people have everything to lose.
The antiquated no-appeal clause of the Virginia Constitution provides, "No appeal shall be allowed to the Commonwealth in a case involving the life or liberty of a person." Enacted in 1902, a simpler time when the Supreme Court was the only appellate court in Virginia and when indictments were rarely dismissed on pretrial motions, this provision was intended to protect acquitted defendants from vindictive prosecutors seeking retrial. Subsequent court decisions made it clear that this protection is already guaranteed by the double-jeopardy clauses of the constitutions of Virginia and the United States.
A 1986 amendment adopted by popular vote granted the commonwealth a very limited right of pretrial appeal when essential evidence is suppressed on constitutional grounds. Otherwise, the no-appeal clause still reserves appeals for defendants only.
Since the last amendment process was begun in 1984, the balance of appeal rights has tilted further against the commonwealth.
In 1993, the Supreme Court ruled that because of the no-appeal clause, when a defendant appeals, the commonwealth cannot even ask for review of errors that favored the defendant.
In 1985, an intermediate Court of Appeals was created. Defendants were given the right of further appeal to the Supreme Court. The no-appeal clause denies this right to the people. Of the 38 states that have an intermediate court, all except Virginia allow the people some form of appeal to the state's highest court.
The Court of Appeals sits in three-judge panels around the state. Different panels may issue conflicting rulings. Sometimes, erroneous panel rulings have been reversed on rehearing by the full Court of Appeals or by coincidental appeal of the same issue to the Supreme Court by another defendant. During the months or years before an error is reversed, confusion reigns in the trial courts. Criminals have been set free on the basis of erroneous law.
A direct appeal by the attorney general from the Court of Appeals to the Supreme Court would minimize such confusion. Especially when a violent-crime conviction is reversed by the Court of Appeals, the attorney general should have the right to seek further review in the Supreme Court before the victim is subjected to the ordeal of a retrial.
It is time to untie the hands of the General Assembly with a constitutional amendment allowing future laws to (1) give the attorney general the same right of appeal to the Supreme Court from the Court of Appeals that convicted criminals now have; (2) enable cross appeal by the commonwealth's attorney when the defendant appeals, so that appellate review is not restricted solely to issues chosen by the defendant; and (3) permit more pretrial appeals by the commonwealth's attorney when an indictment is dismissed without a trial on the merits.
The no-appeal clause serves only to deny the people access to their own appeals courts in criminal cases. The General Assembly will soon vote on a bill to start the two-year process leading to a popular vote on a constitutional amendment to repeal this clause.
Perhaps the one thing that Democrats and Republicans agree on these days is that the rights of law-abiding citizens have been neglected in the criminal-justice system. I join the Virginia Association of Commonwealth's Attorneys and the attorney general in urging our legislators to give the people a chance to vote for a fair right of appeal.
Robert C. Hagan Jr. is the Botetourt County commonwealth's attorney.
by CNB