THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, October 22, 1996 TAG: 9610220251
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY LAURA LAFAY, STAFF WRITER
LENGTH: 263 lines
Proposed constitutional amendments to mandate victims' rights and allow prosecutors to appeal decisions of the Virginia Court of Appeals could lead to an erosion of freedom for all Virginians, critics charge.
But supporters - including state Attorney General James S. Gilmore, who wrote both amendments - say they are necessary to balance the rights of crime victims and the accused.
The two amendments, along with three other proposed changes to Virginia's Constitution, are on the ballot Nov. 5.
``With the victims' rights amendment, it's important that normal people understand that the criminal justice system protects their interests, too,'' Gilmore said.
``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 would give the General Assembly 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, ``The Wrongs of Victims' Rights,'' and who has been the victim of a rape and burglary.
``These amendments are basically designed to make prosecution easier,'' she 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 ACLU, calls the proposal ``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 said.
``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.''
North Carolina, South Carolina, Connecticut, Indiana, Nevada, Oregon and Oklahoma will also have victims' rights amendments on their ballots, said Susan Howley, assistant director of legislative services for the Victims' Rights Center in Arlington. Twenty-one states already have them.
Howley said amendments are needed even in states like Virginia, where legislation provides for victims' rights, to ``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 says. ``They are not like statutes, which can be changed every year.''
But the amendments also raise difficult questions, some experts say.
What about victims of environmental crimes? What will it do for victims whose attackers are not caught? What about victims who are gang members or drug dealers or prisoners? What about victims - battered wives, for example - who strike back and kill their attackers?
``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 said.
Gilmore, who plans to run for governor in 1997, also wants to set a standard for rights of appeal.
Before 1985, appeals went straight to the Virginia Supreme Court. But as convictions increased, appeals backed up, so the General Assembly created the Virginia Court of Appeals. Now it makes the final decisions in criminal cases.
But Gilmore questions several of the court's rulings. Mentioned in a five-page statement put out by his office were:
Mack Arthur White vs. Commonwealth. The court threw out the defendant's conviction for raping and sodomizing a woman in a highway restroom and sent the case back for a new trial. The court ruled that evidence of an attempted rape in a different restroom with which the defendant wasn't charged should not have been introduced.
Henshaw vs. Commonwealth. The court affirmed the conviction but ruled that defendants have the right to examine and photograph scenes of crimes with which they have been charged, even if it is a victim's private property.
Lemons vs. Commonwealth. A three-judge panel of the court affirmed a murder and malicious wounding conviction but ruled prosecutors should have provided more than a partial text of a witness' statement.
The full court ordered the trial judge to look at the full statement and decide whether its admission would have changed the result of the case.
Norton vs. Commonwealth. A three-judge panel reversed a conviction for cocaine possession, ruling that two beer cans containing cocaine residue found in a motel room rented by the defendant did not constitute enough evidence for a 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,'' Judge Jere M.H. Willis Jr. wrote.
Gilmore's office asked the full court to reconsider the case but was refused. Records kept by the clerk of court said the judges granted 23 percent of the requests for hearings before the full court from 1990 through 1995.
Gilmore's statement said the decisions listed are at odds with prior decisions by the Supreme Court of Virginia. But other lawyers find no fault.
``All of those decisions seem absolutely reasonable to me and are consistent with Virginia Supreme Court decisions,'' Richmond criminal lawyer Gerald T. Zerkin said.
``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 assuring fair trials. Why don't we just have an amendment that says the prosecution always wins?'' ILLUSTRATION: GRAPHIC
Proposed Constitutional Amendments
To let the state pass laws mandating the rights of crime victims.
To let state prosecutors appeal all cases, including criminal
ones.
To prevent the state from using state employees' pension fund
money.
To alter state voter registration laws to conform to the new
federal motor voter law.
To delete a provision preventing the incorporation of churches
and religious denominations.
Details, A10
PROPOSED AMENDMENTS IN VIRGINIA
Public Employees Retirement System
Wording on the ballot: Shall the Constitution of Virginia be
amended to provide that the funds in the governmental employees
retirement system shall be trust funds and invested and administered
solely in the interests of the members and beneficiaries of the
system?
Background and impact: Recommended in a 1993 study by the Joint
Legislative Audit and Review Commission, it would prevent the state
government from using employee pension fund money.
The constitution directs the General Assembly to maintain a
retirement system for state employees. Under the amendment, the $21
billion in the Virginia Retirement System would become an
independent trust fund separate from other state money and
administered by its members and beneficiaries.
Points of view:
Some business and political leaders - including developer John T.
Hazel Jr. and Lt. Gov. Donald S. Beyer Jr. - have suggested using
the retirement system as a source of start-up capital for Northern
Virginia's technology industry.
Rights of Victims of Crime
Wording on the ballot: Shall the Constitution of Virginia be
amended to provide that the victims of crime should be treated with
fairness, dignity and respect in the criminal justice process, and
that the General Assembly may define, by law, the rights of victims
of crime?
Background and impact: Written by state Attorney General James
S. Gilmore III, it would give the General Assembly power to pass
laws giving new rights to victims of crime. He lists as examples:
Protection of victims through appropriate bail and release
conditions for the accused.
The right to make a statement at criminal sentencings.
Notice about progress of cases.
Notice of release or escape from prison.
Restitution.
The right to confer with prosecutors.
Points of view:
Opponents say the amendment is just part of the current
political trend of being tough on crime. The General Assembly, they
note, has passed laws mandating all of the rights listed.
``We make it hard to amend both state and federal Constitutions
because we want to insulate them from the always-changing winds of
politics,'' says Kent Willis, director of the Virginia ACLU. ``While
the words in this amendment appear to be about victims' rights, they
are really about giving the government more and more power over its
citizens.''
Proponents, such as Virginia Beach Commonwealth's Attorney Bob
Humphreys, believe putting victims' rights into the constitution
will protect those rights in the long run.
``Statutes can be changed tomorrow,'' Humphreys said. ``It's a
little more difficult to throw a constitutional amendment out with
the bathwater.''
Commonwealth's Right of Appeal
Wording on the ballot: Shall the Constitution of Virginia be
amended to authorize the General Assembly to allow the Commonwealth
the right of an appeal in all cases, including criminal cases,
provided that the appeal would not violate the Virginia or United
States Constitutions?
Background and impact: This, the most far-reaching of the
proposals, also was written by Gilmore. The constitution now limits
the commonwealth, or prosecution, to appeals of certain pre-trial
decisions in criminal cases and of decisions in criminal cases
involving state revenues or taxes.
If a citizen convicted of a crime in Circuit Court appeals to the
Virginia Court of Appeals and has the conviction reversed by a panel
of a few of its judges, prosecutors can ask for a rehearing before
the full court. Beyond that, they can do nothing. The Court of
Appeals is the final arbiter.
Under the amendment, the General Assembly could pass laws
allowing prosecutors to appeal decisions by the Court of Appeals to
the more conservative Virginia Supreme Court.
Points of view:
A statement from Gilmore's office says several decisions by the
Court of Appeals have been ``unduly restrictive,'' toward
prosecutors and have ``seriously misinterpreted case law.''
``If a criminal is convicted, he has the right to appeal,''
Gilmore said. ``What if the Court of Appeals reverses on a
technicality? The government can't do anything about it? . . .
``And what if they send the case back for a new trial. The
prosecutor has to try the case all over again? Years later when
witnesses can't be found? Based on an erroneous ruling? That's not
right.''
Opponents see it differently.
``The basic reason you don't want the government to have the
right to appeal is that the government can bankrupt people by just
filing appeals,'' Richmond criminal defense attorney David Baugh
said.
``Not everyone has O.J. Simpson's money. The tradition is, the
government gets one bite at the apple. It accuses a citizen of
something and if it has sufficient evidence to convict, then he's
convicted.''
Voting and Voter Registration
Wording on the ballot: Shall the Constitution of Virginia be
amended so that the form for voter registration applications may be
revised and so that voters who move within Virginia may vote in
their former precincts under the conditions and time limits provided
by law?
Background and impact: Described as a housekeeping detail to make
the state conform to the new federal motor voter law, this amendment
allows the General Assembly to pass laws about information required
on voter registration forms and how Virginians may vote after they
have moved to another part of the state.
The state would keep some of its voter registration requirements
and delete others to conform with the requirements of federal forms.
The amendment could affect the rule requiring voters who move
within the state to transfer their registration to their new
precinct within a year. The Assembly would be able to alter
requirements and allow voters more or less time to transfer their
registration.
``At some point, if the motor voter law changes, we'll have the
ability to change the state laws back again and we won't have to go
back and try to get an amendment,'' said the amendment's co-sponsor,
Del. James M. Scott (D-Fairfax).
Incorporation of Churches and Religious Denominations
Wording on the ballot: Shall the Constitution of Virginia be
amended to remove the language which prohibits the General Assembly
from passing a law permitting incorporation of any church or
religious organization?
Background and impact: This amendment would delete a provision
prohibiting the incorporation of churches and religious
denominations. Virginia and West Virginia are the only states with
such prohibitions.
The clause, some believe, is based on an 18th century effort to
keep the state from creating its own church and mandating
attendance. In 1969, the state Commission on Constitutional Revision
decided the clause might discriminate against religious groups, and
recommended its removal. However, the General Assembly disagreed and
the clause stayed.
Points of view:
The amendment's sponsor, Del. Roger J. McClure (R-Fairfax), says
barring churches from structuring themselves as nonprofit
corporations makes it difficult for them to own property and
subjects deacons and other members to liability in lawsuits.
While there doesn't appear to be strong opposition to the
amendment, some don't like the idea. Former state Sen. Hunter
Andrews of Hampton voted last year against putting it on the ballot.
``Under the present system, the local congregations elect their
trustees, submit the names to the judges of the circuit court and
the court approves them. And then, if the trustees want to borrow
money, they go to the court and the court approves that,'' Andrews
said.
``If you incorporate, two or three people can call themselves a
church and incorporate. Where is the control? I know I'm in the
minority, but I think the present system works well.''
KEYWORDS: ELECTION 1996 AMENDMENTS PROPOSED BALLOT by CNB