ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Wednesday, October 23, 1996 TAG: 9610230055
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURA LAFAY STAFF WRITER
MEMO: ***CORRECTION***
Published correction ran on October 24, 1996.
A story Wednesday's paper incorrectly stated the scope of a proposed
constitutional amendment on the Nov. 5 ballot. The ammendment would give
prosecutors the right to appeal rulings of the state Court of Appeals,
but would not allow prosecutors to appeal jury verdicts.
A PROPOSED AMENDMENT to the state constitution would give crime victims the right to appeal a "not guilty" verdict. But some experts worry it would result in unjust justice.
Besides voting for a president and members of Congress, Virginians will be asked this Election Day whether to make two fundamental changes to the way the state deals with criminals and crime victims.
The most significant of the five proposed constitutional amendments on the Nov. 5 ballot would allow the General Assembly to pass laws giving prosecutors the right to appeal verdicts to a higher court; currently, only defendants can appeal.
Another proposed amendment would enshrine the concept of "victims' rights" in the state constitution.
Supporters - including Virginia Attorney General Jim Gilmore, who wrote and proposed the two constitutional amendments - say the amendments are necessary to balance the rights of crime victims and the accused.
Critics charge the proposed amendments mandating victims' rights and allowing prosecutors to appeal the decisions of the Virginia Court of Appeals could lead to an erosion of freedom for all Virginians.
"Both amendments are essential," Gilmore said. "With the victims' rights amendment, it's important that normal people understand that the criminal justice system protects their interests, too.
"On the Commonwealth's right of appeal, it is critical that the public have the ability to have their case heard on appeal in the same way that criminals do."
But Gilmore's victims' rights amendment, which grants the General Assembly the power to "define, by law, the rights of victims of crime," will "raise issues about other rights in the constitution," said Lynne Henderson, an Indiana University Law School professor who wrote a 1985 law review article entitled, "The Wrongs of Victims' Rights," and who herself has been the victim of a rape and burglary.
"These amendments are basically designed to make prosecution easier," Henderson said.
"They have very little to do with the rights of victims, unless you feel all victims are entitled to a conviction whether the defendant is guilty or not."
Kent Willis, director of the Virginia American Civil Liberties Union calls the proposed amendment "part of a dangerous trend."
"While the words appear to be about victims' rights, they are really about giving the government more and more power over its citizens," he says.
"Whenever you create a constitutional principle, you open up new territory for new legislation. In the wake of this amendment, I can see legislators arguing for diminishing due-process rights of the accused as a way of ensuring victims' rights."
Seven other states - North Carolina, South Carolina, Connecticut, Indiana, Nevada, Oregon and Oklahoma - will have victims' rights amendments on their ballots in November, said Susan Howley, assistant director of legislative services for the Victims' Rights Center in Arlington. Twenty-one states already have them.
Howley said constitutional amendments are needed even in states such as Virginia, where legislation can "demonstrate that victims' rights need to be taken seriously."
"It also lends a degree of permanence to victims' rights because constitutions are very difficult to change," Howley said. "They are not like statutes which can be changed every year. This will only make the statutes stronger."
But the amendments also raise difficult questions, experts say.
Will it apply to the victims of environmental crimes? What will it do for victims whose attackers are not caught? What about victims who are gang members, drug dealers or prisoners? What about victims - battered wives, for example - who strike back and kill their attackers?
Gilmore dismisses such concerns.
"The goal of the amendment is to set the standard as the great policy of the Commonwealth. And if there are questions, all that can be resolved by the General Assembly."
Gilmore, who plans to run for governor in 1997, also wants to set a standard when it comes to rights of appeal.
Before 1985, anyone appealing a conviction went straight to the Virginia Supreme Court. But as criminal convictions increased, that court became backed up and decisions came more and more slowly.
To remedy the problem, the General Assembly created the Virginia Court of Appeals. Now the Court of Appeals makes the final decision in criminal cases. There is only one problem: Gilmore disagrees with the court's rulings.
Three decisions in particular have galled the Attorney General, according to a five-page statement released by his office.
The first, Mack Arthur White vs. Commonwealth, threw out the defendant's conviction for raping and sodomizing a woman in a highway-stop restroom. The court sent the case back for a new trial because, it ruled, evidence of another attempted rape in a different restroom (with which the defendant wasn't charged) should not have been introduced.
Other decisions criticized by Gilmore's office include:
*Henshaw vs. Commonwealth, in which the Court of Appeals affirmed the defendant's conviction but ruled that defendants have the right to examine and photograph the scene of the crimes with which they have been charged, even when that scene is the private property of the victim.
*Lemons vs. Commonwealth, in which a three-judge panel of the court affirmed a conviction for murder and malicious wounding but ruled that prosecutors should have provided more than a partial text of a statement made by a witness.
At a re-hearing by the full court, the case was sent back to the trial judge who was ordered to look at the full text of the statement and decide whether its admission would have changed the result of the case.
*Norton vs. Commonwealth, in which another three-judge panel reversed and dismissed a conviction for cocaine possession because, it ruled, two beer cans containing cocaine residue found in a motel room rented by the defendant did not constitute enough evidence for a possession conviction.
"There was no evidence that Norton was seen inside the motel room, that his fingerprints were on the beer cans, or that he had smoked cocaine from those beer cans," wrote Judge Jere M.H. Willis, Jr.
Gilmore's office asked the full court to reconsider the case, but was refused. According to records kept by the clerk of court, the judges granted 23 percent of the requests for hearings before the full court from 1990 through 1995.
According to Gilmore's statement, the decisions listed are erroneous and at odds with prior decisions by the Supreme Court of Virginia. But other lawyers find no fault with them.
"All of those decisions seem absolutely reasonable to me and are consistent with Virginia Supreme Court decisions," says Richmond criminal lawyer Gerald T. Zerkin.
"In two of those cases, the court simply provided the defendant with basic tools necessary to defend himself. Unfortunately, the attorney general doesn't seem interested in ensuring fair trials. Why don't we just have an amendment that says the prosecution always wins?"
LENGTH: Long : 132 linesby CNB