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Justice prolonged: two years after the expansion of the Court of Appeals of Virginia

 The Supreme Court of Virginia which shares a building with the Court of Appeals of Virginia.
Jahd Khalil
Radio IQ
The Supreme Court of Virginia which shares a building with the Court of Appeals of Virginia.

Two years ago, Democrats, in control of the House, Senate and Governor’s mansion, changed the legal landscape for those appealing their criminal convictions. Part of a broader criminal justice reform effort, the Court of Appeals of Virginia had its jurisdiction and bench expanded for the first time since its inception about 30 years ago.

Now, lawyers and legislators are looking back on how that’s impacted justice for the state.

Until 2021, Virginia was the only state that didn’t allow an appeal in every case. The court used to be able to deny such petitions, but now oral arguments and an opinion are all but guaranteed for those who think they’ve been wronged by a lower court.

“It seems like to a lot of people there ought to be a right of appeal for people convicted of a crime, we need a good look at those cases,” said Charlottesville-area state Senator Creigh Deeds. “So that was a big part of the change.”

For Deeds it was a fight that started in 2014 when his frustration with the Court of Appeals of Virginia led to a more drastic proposal: get rid of it all together.

“I was worried the court had lost the trust of the public and we either needed to abolish or reform it,” he said.

Now, with many of the changes Deeds sought enacted, he said he’s proud of the results.

“The work has been as good or better than we expected,” he said.

First created in 1985, the Court of Appeals of Virginia was established to mostly handle criminal appeals and disputes with some of the state’s administrative agencies. Part of the state’s larger “low tax, low service” ethos, attempts to expand it in the 90s fizzled despite calls to do so from those within its ranks. And while the court was saddled with criminal appeals, it had the right to deny petitions.

But all of that changed under the Democratic trifecta, and In Deeds’ eyes, and the eyes of a handful of attorneys who spoke to Radio IQ, the changes are paying off. Deeds said there’s now good law being made and many of the criminal justice reforms Democrats passed alongside court expansion are being upheld.

“For decades in Virginia you’d have a statute with two opinions, now we’re getting published and unpublished opinions all the time on all kinds of statutes,” said Brad Haywood, Chief Public Defender for Arlington County and the city of Falls Church and a member of the board at the criminal justice reform group Justice Forward.

This means lawyers can offer more thorough and up-to-date arguments for their clients.

Also notable, when Democrats abolished the death penalty, funds used for public defenders in capital cases were reassigned to create a new appellate division office within the state’s Indigent Defense Commission. But as more criminal defendants seek rehearing, that office is struggling under its own weight, said those familiar with its operation.

Democrats also successfully expanded the bench from 11 to 17 members, and they managed to appoint eight new judges the following year. Those appointments were decried as secretive by Republicans, including Rockingham Senator Mark Obenshain.

But in the time since, Southside Republican Senator Bill Stanley said hasn’t heard such complaints.

“Silence may be a demonstration that these changes are working, or at the very least they’re not harming the administration of justice at the interim appellate level,” Stanley said before warning “time will tell.”

In defense of the judicial selection process, Deeds said the legislature also added requirements for judges to be vetted by the state bar before being nominated.

“There were too many people put there because they were prosecutors or because they were somebody’s friends,” Deeds said. To that end, the senator said Democrats appointed the most diverse group of judges to the court in its short history, with many public defenders and people of color sitting on the bench.

Complaints about cronyism, and with it nitpicking dismissals and a heavy preference toward prosecutors, were lobbied by most of the lawyers who spoke with Radio IQ but did not want to be identified because of cases before the court. One lawyer said he was told the job of the appeals court was “to affirm the lower court’s ruling,” the antithesis of an appeals court’s duty. The lawyer said this came from a combination of needing the administration of the court to continue flowing while also upholding the reverence for the finality of judicial rulings.

“In Virginia it's structured to let things sort out at the trial court level,” said one attorney. “It’s gotta be incredibly egregious, and even then, it might not be good enough to see an outcome.”

There’s also been logistical problems in the wake of the court’s expansion.

A late 2022 report from the Office of the Executive Secretary of the Supreme Court of Virginia, the branch that oversees the appeals court, was titled “the expanded workload of the Court of Appeals.” It detailed backlogged dockets and hearing panels “at or near capacity” through 2023. A new report for 2023’s workload is expected in December.

One lawyer told Radio IQ appeals used to take six months to a year, now he’s waiting that long for his case to get heard.

John Koehler, a Roanoke-based attorney and former law clerk at the Supreme Court of Virginia, said this is because appeals that might have gone to the state Supreme Court are first appearing at the court of appeals.

“The volume of cases has not increased significantly over what’s been handled by both courts,” he said. “But now it's being funneled through a single central court in Richmond, with panels sitting in each region once per month.”

The absence of work for the state’s supreme court was noticed by lawyers as well.

“We’re spending a lot of money on 7 people who don’t have anything to do,” said one attorney.

Koehler said a recent grant of five hearings by the Supreme Court of Virginia was the largest they’ve accepted since 2020.

And while Koehler said the lean of the court had shifted thanks to new appointees, other attorneys said rehearings of appeals by the court’s full bench have become more frequent. In those instances, the court’s conservative base can undo the work of its newer members.

A scan of such recent decisions shows initial appeals where the majority was made up of newer judges are often taken up by the full court, a step rarely used in the past, according to some attorneys.

Among the rehearings granted by the full bench was the headline making contempt charge of a Loudoun woman, Katie Orndoff. She was sentenced to 10 days in jail after admitting she’d smoked weed hours before testifying against her ex-boyfriend in a domestic assault case.

Judge James Fisher, who issued the contempt charge, claimed Orndoff was disruptive during her testimony, acting erratic and worthy of sanction. But, according to an appeals panel made up of two Democratic appointees, video from the hearing showed no such intoxication. And while the panel vacated the contempt charge, a dissent by a 2019 appointee gave grounds for the rehearing.

A hearing for that case has not yet been set.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.

Brad Kutner is Radio IQ's reporter in Richmond.