(Posted May 16, 2019) I’m a bit late in getting to today’s analysis, as I was out of the office this morning. Today the justices hand down a single published opinion, augmented by a published order.


Criminal law

Resolving a question of first impression, the justices explore the evidence required to sustain a conviction of using a communications system to solicit a late adolescent with lascivious intent. The case is Commonwealth v. Murgia, and involves text messages sent back and forth between a 16-year-old student and her 40-year-old track coach.

The messages started innocuously enough; the student wanted to improve her performance in the high jump and asked the coach to help. He responded affirmatively, followed by what plausibly cold be described as playful banter.

It graduated from banter by the third set of messages, as the coach spelled out in a long text a detailed and graphic sexual fantasy involving the student. He must have sensed something when she abruptly stopped texting back. Soon enough, police came to interview him. By then, they were armed with a printout of the highly inculpatory thread.

The relevant statute forbids using a communications system “for the purpose of soliciting, with lascivious intent,” a child of the age of 15-17 to perform any of various sexual acts. The coach admitted that he texted the student and that his messages were, well, creepy; but he insisted that he never proposed any such act with the student. It was merely a description of a dream and not an enticement to make it come true.

A circuit-court judge disagreed, considering the nature of the athlete/coach relationship and the “pattern of communications.” The court convicted the coach and handed him a ten-year sentence, all suspended. A divided panel of the Court of Appeals reversed the conviction, adopting the coach’s contention that, creepy as it was, nobody actually solicited anything.

While the case was in the appellate system, the justices handed down a 2017 decision interpreting a related subsection of the same statute. The justices accordingly remanded the appeal back to the CAV for reconsideration. The Court of Appeals again reversed the conviction, and the Commonwealth appealed, seeking to reinstate the original judgment.

The Supreme Court today unanimously reverses. The court finds that the CAV Panel failed to accord the trial judge’s factfinding the proper deference. Specifically, the court had evaluated the context of the messages, not merely the words used, and inferred – as the law permits factfinders to do – that the coach was actually proposing illicit contact. The court thus reinstates the conviction.

This opinion is independently noteworthy from a word-nerd perspective. The author, Senior Justice Koontz, recites that the student and coach

… began communicating by “text messages” in October 2014 …

He appends a footnote to explain what a text message is. The note also refers to “graphic devices known as emojis.”

My readers in the Millennial and Gen X crowds will find it amusing that the court encloses the words text messages in scare quotes, and that it finds it necessary to define the term and the word emoji. So will most Boomers who are even passably familiar with cell phones. The excellent usage book Dreyer’s English, written by the copy chief at Random House, advises writers to avoid scare quotes because, a generation from now, a reader will find it quaint. (Quaint is my euphemism for what Dreyer actually says. Go check page 52 if you’re curious.)



The court also releases a published order in James River Ins. Co. v. Doswell Truck Stop, LLC. This appeal involves a coverage question that turns on an auto exclusion from a commercial general liability policy.

James River issued the CGL policy to the truck stop; the exclusion stated that the policy wouldn’t cover “bodily injury and property damage arising out of the maintenance of” any auto. This claim arose when a trucker asked a mechanic to repair or replace one of the tires on his rig. During the process, the mechanic invited the trucker into the shop to watch. He then allegedly over-inflated the tire, causing it to explode and injure the trucker.

The insurer denied coverage, citing the exclusion. A circuit-court judge ruled in favor of the truck stop, but today the Supreme Court reverses, holding that the policy’s language unambiguously excludes this claim. The court also rejects the truck stop’s argument that this was really a premises-liability claim:

Thus, regardless of whether allowing Smith into a dangerous location was a proximate cause of his injuries, the fact remains that a significant causal connection exists between the maintenance on the tire and Smith’s injuries. As such, Smith’s injury arose out of the maintenance of a vehicle and the Auto Exclusion applies.





[Posted May 7, 2019) The Court of Appeals of Virginia today hands down one of its few en banc decisions of the year. Jones v. Commonwealth addresses the sufficiency of the evidence in a charge of attempted robbery. The court here undertakes to resolve prior conflicting – or at least incongruous – caselaw on the quantum of evidence required to convict.

Early one morning, Petersburg police officers saw a man get out of a car and walk across the street. Soon thereafter, two other men, one of whom was Jones, got out of the car and took four or five minutes fussing with their clothing before they, too, started across the street.

The officers followed and saw the two men standing at the corner of a house. They approached the men and identified themselves, at which point Jones took off. He crossed a fenced parking lot before returning to the car and driving away.

It didn’t work. Another police officer stopped the car and arrested Jones –

[Okay, I know what you’re wondering: Arrested him for what? Standing near a building? Running away from the police? Be patient; all will be revealed in the next paragraph.]

A search of the car produced a ski mask, and police found another such mask along the route that Jones had traveled in attempting to get away. A search of the fenced parking lot revealed a sawed-off shotgun. Now we’re getting somewhere. In an interview after his arrest, Jones unwisely agreed to waive his right to remain silent, and inculpated himself. Jones and his immediate accomplice had gone to the scene to “make sure Trip didn’t get hurt.” He explained that Trip – presumably the first man to exit the car – had gone to rob a drug dealer.

That looks like an accessory to robbery, except there was no robbery. There was no evidence that the target drug dealer was anywhere nearby, or that he was in fact robbed. Despite that, a judge convicted Jones of attempted robbery and a companion firearm charge, reasoning that Jones was part of the robbery itself.

A panel of the CAV reversed these convictions, holding that while Jones unquestionably possessed the intent to commit the crime, there was insufficient evidence that he had committed any overt act in furtherance of the plan. The court held that the actions proved were mere preparation, and under preexisting caselaw, that isn’t enough.

The court granted en banc rehearing, and today the court reverses the conviction in a sort-of-split, sort-of-unanimous ruling. The split arises over the key reason why this opinion will be newsworthy: the precise boundary between preparation and overt act.

I use the adjective precise guardedly. The problem is that there’s usually no hard-and-fast threshold between preparation and participation in the crime. The majority – Judge Humphreys, writing for Judges Petty, Alston, Huff, Chafin, and Malveaux – holds that the boundary is the moment when the defendant “commences” to consummate the crime. Citing two earlier CAV panel opinions, the majority holds that merely being in the vicinity, prepared to act, isn’t enough.

The majority explains what divides the judges in this way: “In summary, the difference between our analysis and that of our concurring colleagues is whether, to constitute an attempted crime, an overt act, ‘slight’ or not, must be in furtherance of the commission of the crime itself or merely in furtherance of the criminal intent to commit it.” (Emphasis in original) The majority holds that the overt act must relate to the crime itself. Otherwise, it reasons, every act in the process becomes an overt act, and the “mere preparation” exception would vanish.

Judge Beales authors today’s concurrence, arguing that today’s ruling doesn’t clarify anything:

While simultaneously suggesting that courts have created “a wide and not entirely consistent variety of phrases to describe the type of act” sufficient to establish an attempted offense, the majority has decided to throw its own hat into the ring by introducing its own test. It now invites litigants to grapple with the requirement that attempt “begins once an overt act commencing an element of the intended crime is initiated with the requisite intent.” While the majority indicates that it endeavors to clarify the law of attempt, I strongly suspect that today’s opinion will have the exact opposite effect.

The concurring judges decline to join the effort to create a bright-line test for the distinction, preferring instead to retain a case-by-case analysis.

Despite this disagreement, all eleven judges agree that the conviction is infirm, because there was no evidence of where the victim was, or that Jones was anywhere nearby. The court accordingly reverses and enters final judgment on the two appealed convictions.

While it’s tempting to say that this is the end of the road, I foresee a petition to the justices for a writ. I read Judge Beales’s opinion as an open invitation to the Supreme Court to take up this issue. He does so by contending that the en banc majority is undertaking to revise Supreme Court caselaw. Whether the justices wade in or not, this opinion is required reading for anyone who handles criminal law.




(Posted May 2, 2019) In addition to today’s published opinion on withdrawal of a guilty plea, the justices today summarily decide a mandamus petition with important ramifications for criminal prosecutions and the separation of powers. The case is In re Underwood, and is the latest development in an ongoing dispute between the Norfolk Commonwealth’s Attorney and some of that city’s circuit court judges.

Norfolk Commonwealth’s Attorney Greg Underwood recently made a decision that his office would no longer prosecute simple-possession charges involving marijuana. Drug distribution charges would be unaffected, as were DUI-drug cases. But because of a perception that the current setup has a disproportionate impact based on race, Underwood decided that his office wouldn’t participate in that anymore.

In two pending cases in circuit court, Underwood’s assistant prosecutors moved the court to dismiss the prosecutions. The circuit judges refused, feeling that this trod upon legislative turf; they felt that Underwood was effectively decriminalizing simple possession in Norfolk. Underwood filed mandamus petitions, asking the Supreme Court to compel the judges to perform what he described as a ministerial act.

Today, by unpublished order that isn’t available on the court’s website, a panel of the court dismissed the petitions. The court finds that entry of dismissal is still discretionary, in that the judge has to decide how to resolve he motion. Underwood had cited a 2006 Supreme Court decision, Roe v. Commonwealth, 271 Va. 453, for the proposition that a dismissal is different from a nolle prosequi, in that a nol pros requires the prosecutor to state a reason for the request, while a dismissal doesn’t.

If you get Roe out and read it, it really does say that, and that might lead a casual reader to conclude that Underwood has a point. Today’s SCV panel dispenses with this problem in a time-honored manner, by ruling that the no-reason-required language was mere dicta, and not binding on the current court.

There’s more. Today’s order notes that because a nol pros requires court consent, and because a dismissal without prejudice is effectively a nol pros, a dismissal without prejudice also requires judicial consent. That still doesn’t get us to the point of a dismissal with prejudice. But the court isn’t finished. It finally rules that a dismissal with prejudice operates as a judgment of the court because it’s a final determination of the parties’ rights. And since rendering judgment is a fundamentally judicial function, implicating judicial discretion, mandamus isn’t available; mandamus only lies to compel ministerial acts.

I don’t have a horse in this race. I don’t handle criminal appeals as part of my appellate practice, and I certainly don’t represent any of the litigants here. But this ruling has troubling implications, in my view. Let’s take a peek at the map and see where this road leads.

If it really is true that a court can refuse to allow the party with the burden of proof to dismiss the case without proceeding further, what about civil suits? If a plaintiff decides to pull the plug on her lawsuit and hands up a dismissal order, can the judge refuse it and require her to call her first witness? Under the rationale of today’s order, the answer is yes. That isn’t likely to happen often, but this ruling opens the door to just such a remarkable scene.

Back to the criminal milieu: Does this mean that a circuit court judge can force the elected Commonwealth’s Attorney to try a case that he wants to dismiss? Does he have no prosecutorial discretion? On this pregnant question, today’s order is a little less decisive. The order merely denies the mandamus petition because, the court holds, a dismissal is discretionary. But if a prosecutor really wants to dismiss a misdemeanor case (the Code mandates that he prosecute felonies, so those are outside the scope of today’s discussion), in theory the prosecutor could show up for trial, wait for the witnesses to be sworn, and then announce, “We rest.” What’s the judge to do now? She can’t refuse a defense motion to strike; jeopardy attached with the witnesses’ oath, and the defendant is entitled to a judgment of acquittal.

Foreseeably the judge could hold the prosecutor in contempt (an order that is, I hasten to point out, immediately appealable). That would produce a three-arm fire on appeal, as the parties to the case would debate issues of prosecutorial independence and discretion, manpower issues, and the like.

There’s another option for the prosecutor. The law allows a Commonwealth’s Attorney to withdraw from the prosecution of a misdemeanor. In that instance, the court can either appoint a special prosecutor — I’m not sure if there’s funding for that — or just allow the trial to proceed as in general district court, with the arresting officer testifying as the Commonwealth’s case in chief.

But even this approach has a major drawback: Suppose the defendant in such a case, knowing that there will be no prosecuting attorney, demands a jury trial? Now who’s going to handle the prosecution’s case in chief? Who’s going to exercise the prosecution’s peremptory jury strikes? Who’s going to give its opening statement and its closing argument? Unless the police officer happens to be a member of the State Bar, that answer is nobody; that’s who.

This order comes from a three-justice panel — the chief justice, plus Justices Goodwyn and Kelsey — who decided the matter very promptly. Underwood filed the petition just a few days ago, and the panel announced its ruling today without waiting or a response from the judges, the respondents in today’s proceeding.






(Posted May 2, 2019) After a one-week hiatus, the justices today resume the process of clearing their desks by handing down one published opinion. In Brown v. Commonwealth, they address a motion to withdraw a guilty plea.

A loss-prevention officer at a department store observed Brown concealing merchandise. Recognizing her as a person who had been barred from the store for previous larcenies, he confronted her. Today’s opinion describes succinctly what happened next: “she asked if he was going to press charges. She then left the items behind, ran to a vehicle, and fled.”

Uh-oh. This looks bad, especially since this would be a third larceny offense, and that means a felony charge. When Brown got to court, it looked bad enough that she agreed to a plea deal, reducing the larceny charge to second offense. The deal called for a 12-month jail sentence, with only one month to serve. The judge thought that sounded okay, and announced judgment accordingly.

Bad news soon arrived for Brown, as she realized that she could lose her home and her job – presumably by being locked up and not at her place of employment for 30 days – by taking the deal. Her lawyer filed a motion to withdraw the guilty plea two days after trial. The court hadn’t entered the sentencing order yet, but it denied the motion and sentenced Brown according to the agreement.

Brown got nowhere in the Court of Appeals, but the justices agreed to take a look. Today the Supreme Court unanimously affirms. The opinion provides a useful primer on the standards that apply to motions to withdraw such pleas.

There are two different sets of criteria for these motions. The first is where the defendant makes the motion before judgment. There, the defendant gets a more forgiving playing field: “a motion to withdraw should be granted if the guilty plea was ‘made involuntarily’ or ‘entered inadvisedly, if any reasonable ground is offered for going to the jury.’” To meet that standard, the defendant has to show only that his motion is in good faith and there’s a reasonable basis for it.

After judgment, it’s much tougher sledding for a movant. By statute, he has to show manifest injustice, and that requires proof of “an obvious miscarriage of justice” or a direct and obvious error.

The Supreme Court’s first task is deciding which set of rules applies after rendition (oral announcement) of judgment but before entry (signing an order) of judgment. The court concludes that the more logical approach is to apply the tougher manifest-injustice standard as soon as the court announces its decision.

This starts us down an inexorable road to ruin for Brown. The justices first note that her proffered defense to the charge – the fact that the merchandise never left the store – is legally insufficient as a defense to a larceny charge. One can commit larceny from a store just by concealing merchandise with an intent to steal, even without getting outside. Second, her claim that collateral consequences (loss of job and home) fails to establish a miscarriage of justice. The court surveys rulings from other states before reaching this conclusion:

In accord with these decisions, we conclude that actual or potential adverse employment or housing consequences that flow from Brown’s guilty plea do not satisfy the manifest injustice standard and, therefore, did not provide a basis upon which to set aside her guilty plea.





(Posted April 19, 2019) In the past 24 hours, two courts announced rule changes. Yesterday the Supreme Court of Virginia created a new Part Eleven of the rules, effective June 17. The new rules are the court’s response to the public-access problem identified in The Daily Press v. OES (2017). When the legislature started making noises last year about stepping in, the court preemptively announced that it would create a new policy to govern public access to court documents. The court publicized a draft policy last year, and yesterday’s order is the final version.

Across the Potomac, SCOTUS has tinkered with briefing requirements. Starting in July, merits briefs must come in at 13,000 words or less, down from the current limit of 15,000. The Court decided against paring back reply briefs, leaving that limit at 6,000 words. The rule change also adds a requirement that parties identify any other cases directly related to the pending appeal. That helps the justices to identify any possible conflicts.

The federal courts of appeal have already implemented the shorter briefing limit. I recall well the scene a few years ago when that proposed change was pending. At the annual meeting of the Council of Appellate Lawyers, an ABA appellate body, lawyer after lawyer railed against the proposed reduction.

I kept my opinion to myself that day, but here it is for you to see: You guys are nuts. Why are you lobbying for the right to file long briefs? The “consumers” hate those.

It’s true: Ask any appellate jurist what she thinks about the briefs she gets, and the first answer will be, “They’re too long.” If you’ve drafted a brief and you’re having trouble trimming it down to the page limit, you aren’t trying hard enough. You’re probably also engaging in defensive lawyering, throwing in any potentially winning argument for fear of leaving a case-winner on the table.

I implore you to heed me on this: You cannot make a strong argument better by adding a weaker one after it. The weak one just diminishes the strength of the good one. I assure you that I can do more damage to my adversary’s position by filing a ten-page brief than I could with a 30-pager. If that sounds counter-intuitive to you, I urge you to rethink your assumptions.

Many years ago, the Supreme Court of Virginia shortened the briefs it had to “consume.” It did so, not by changing the page limits, but by increasing the required type size from 12-point to 14-point. I’m told that then-Justice Agee suggested this after noting that federal briefing rules require 14-point. The court was only too happy to embrace this change, which required lawyers to be more concise without taking any pages away.

In case you’re getting worried, I can report that I’ve heard no suggestion that the SCV will revise page limits downward in the near future.






(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.

Part 1 – How to Speak

This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?

As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.

As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.

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(Posted December 31, 2018) Virginia’s appellate courts are closed today, so we have time for a quick look at what happened in 2018.


Decisions on the merits

I was worried for a time that we wouldn’t reach 100 merits decisions in the SCV, but the justices put together an admirable late push, handing down 14 published opinions and one published order in December to get us over the mark. The court gave us 74 published opinions and four published orders this year. It also reissued two corrected opinions from last year. Add those to the 24 unpubs we saw n 2018 and you get 104 merits decisions.

For comparison’s sake, in 2017 there were 79 published opinions and 111 merits decisions. In 2016, we got 78 opinions and 125 merits decisions. For those of us who make our living at the appellate lectern, 2018 continues a disheartening downward trend in business.


David-Goliath Index

I promised you this as a recurring quarterly feature. Through the first half of 2018, David (the little guy in appeals, such as a defendant appealing a criminal conviction or an employee suing for wrongful termination) won about one out of three published rulings from the Supreme Court. But his third quarter was a disaster: one win and eight losses. A strong(-er) fourth quarter, where David won eight times and lost 13, brings our final David-Goliath Index to 31/69. That is, the little guy won 31% of the time and the big guy won 69% in 2018. Whether that’s a good sign or a bad one probably depends on which side of the litigation aisle you occupy.


CAV published opinions

By my preliminary count, the Court of Appeals of Virginia handed down 66 published opinions in 2018. That’s the same number as in 2016. I’ll have a fuller analysis of these figures when the court issues its full report in the spring.




(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.

All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.

I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.

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