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There is an Easy Fix to the AG’s Complaint About Staffing Issue

by | Feb 21, 2022 | The SoapBox, The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

In the Virginia Mercury today, Ned Oliver reports that Attorney General Jason Miyares wants 75 new positions to handle an “unexpected” upturn in criminal appeals to the Court of Appeals under the appeal of right law.  Under the new law, the AG’s office represents the Commonwealth in all criminal appeals.  In January, 300 appeals were assigned to the Criminal Appellate Division — this includes both appeals that were pending at the writ stage on January 1 and newly filed appeals, though probably very few of those were ready for assignment to the AG as they would not yet have had records transferred from the circuit court.

Now within the appellate bar, there was much debate as to whether the new “appeal of right” process would result in more civil cases being appealed.  The general consensus was, however, that criminal appeals would not see a significant uptick.  There were good reasons to think this, and they still apply.  First, most criminal cases are resolved by plea agreements that include an express waiver of the right of appeal.  Of those cases that do proceed to trial or that are based on an “Alford plea,” which reserved the right of appeal, most of the defendants are indigent and, thus, there is no financial bar to their seeking an appeal — the state provides for the costs of the attorney and preparing the record (charging the defendant only of the conviction is affirmed).

What has changed is that now all appeals in criminal cases will go directly the the Attorney General.  Previously, the first stage of the appeal was handled by the Commonwealth’s Attorney, and the AG got involved only if an appeal was granted, which was in only about 20% of the appeals.  Therefore, there is an obvious solution to the AG’s complaint — Have the Commonwealth’s Attorneys’ Offices represent the Commonwealth in the Court of Appeals.  While the Commonwealth’s Attorneys have always considered having to respond to appeals to be a burden, it is a burden that is shared by most court appointed attorneys and public defenders.  Moreover, the extra funding that the AG is seeking for his office could be directed to the Commonwealth’s Attorneys’ Offices the hire an extra Assistant Commonwealth’s Attorney to help cover the appeals.

End of Rant.