ANALYSIS OF AUGUST 28, 2019 SUPREME COURT OPINION

(Posted August 28, 2019) “Once is happenstance. Twice is coincidence. Three times is enemy action.” Ian Fleming’s arch-villain Auric Goldfinger offers this observation in one of the James Bond novels. So what does five times signify?

Today, for the fifth consecutive business day, the Supreme Court of Virginia hands down a decision. Today’s is a published opinion in a murder case; yesterday we got an unpub dealing with preservation of issues.

Once upon a time, the Supreme Court handed down decisions on just six days a year – the last day of a given session week. That’s when we generally got rulings in appeals argued during the previous session, usually seven weeks earlier.

That ended four years ago, when the court posted a notice on its website that thenceforth, it would issue opinions weekly, usually on Thursdays. That language is still on the court’s homepage: “Effective immediately, the Supreme Court of Virginia will no longer hold opinions for release during a session of Court following oral argument. Instead, opinions will be released when deemed ready by the Justices and will typically be issued and posted on the Court’s website on a Thursday.”

So what gives with the now-daily opinion days? I’d tell you if I knew. The possibilities are: (1) This is the new normal, and we have to adapt to the possibility of getting rulings on any business day; or (2) this is a one-time deck-clearing operation to reduce the backlog of undecided appeals. If I had to guess, I’d go with the second explanation. But I won’t rule out the first.

Here’s a flight of fancy: Maybe the justices want to clear out all of the appeals argued during Justice McClanahan’s tenure, so they’re releasing a large batch now. And they know that dumping fifteen or so decisions in a single day would be cruelly hard on me, as I have to write up all that analysis. So they’re doing this to make my life easier. (I told you it was a flight of fancy.)

One last point: If you choose to misinterpret my Goldfinger quote to believe that I regard the justices as “enemies,” I can’t stop you, but you’re wrong, and you need to allow me some literary license here.

Criminal law

We know very little about the crime in Bethea v. Commonwealth, except that it was a prosecution for first-degree murder. That’s because all of the discussion in today’s roughly 37 pages of opinions is about a Batson challenge.

Bethea, who’s black, was indicted for the murder of a white victim. A first jury trial resulted in a hung jury, where three black jurors held out for an acquittal. In the wake of this mistrial, the defense lawyer learned of a conversation between his law partner and the prosecutor. In that conversation, as the defense lawyer explained, the prosecutor stated  “the jury was nine-to-three to convict, and the three people who voted to acquit were black and then something about the Black Lives movement.”

In the second trial, the prosecution exercised four peremptory strikes, and two of the struck veniremen were black. The defense timely raised a Batson challenge, mentioning the earlier conversation between the two lawyers.

If you know your Batson jurisprudence, you’ll recognize the three-step process. As Justice Kelsey sets it out in today’s opinion,

(1) the opponent of the strike “must make out a prima face case” of purposeful discrimination; (2) “the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes”; and (3) “if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.”

The first step is usually quite easy. In this case, the Commonwealth struck two veniremen who were of the defendant’s race. If a prosecutor wants to challenge that prima facie showing, he or she must do so specifically. If, as happened here, the prosecutor goes straight to the second phase, that’s a waiver of a challenge to the first element.

At this point, then, the burden is on the Commonwealth to produce a race-neutral reason for striking one juror. (Bethea waived a Batson objection to the other black venireman.) The prosecutor offered two: The prospective juror seemed emotional, and she didn’t raise her hand, as the rest of the venire did, when the prosecution asked during voir dire whether everyone would promise to consider all of the evidence.

That seemed race-neutral enough to the judge, who let the peremptory challenge stand. Trouble intruded later, when a transcript showed that the prosecutor had never asked that question. That produced a post-trial renewal of the Batson challenge in a request for a new trial, and that, in turn, sets the table for our discussion.

There’s plenty of analysis in the opinions about what happens at each phase of the Batson analysis. The dispute comes down to this: When the defendant makes out a prima facie case, and the Commonwealth’s race-neutral explanation turns out to be false, does that mean that the court must sustain the challenge? A majority of the court finds that the answer is no, primarily because a prima facie showing isn’t necessarily case-dispositive. For a parallel explanation, consider a defense motion to strike in a civil suit. In resolving such a motion, the trial judge analyzes whether the plaintiff’s evidence makes out a prima facie case, such that if the factfinder believes that evidence, a judgment for the plaintiff would be permissible. But the factfinder is not, at the end of the case, required to believe that evidence, and if it doesn’t, the defense still wins, even if there’s no defense evidence.

In this light, the court’s majority believes that the trial court could still rule that the prima facie case didn’t make out a convincing case for purposeful racial discrimination, even without a meritorious countervailing explanation. That’s not good enough for Justice Powell and her colleague in dissent, Justice Mims. The dissent would find that the second Batson step requires something, and once it became clear that the proffered explanation was false, there’s no counterweight to the uncontested showing that the prosecution struck a black juror. In the dissent’s view, if Batson means anything, it requires more than a false explanation from the government.

Today’s opinion includes side issues, such as whether the defense lawyer waived any claim of intentional discrimination (probably as he was trying to be polite to the assistant Commonwealth’s Attorney trying the case) and whether the phrasing of the assignment of error constrains the appeal. But the enduring feature of Bethea v. Commonwealth will be the fact that the justices have staked out competing positions on just how strong the Batson prima facie showing is.

It’s conceivable that this isn’t the last word on this question. Since the defense raised an argument based on federal law, Bethea could seek succor at One First Street. The odds there are dauntingly small, of course, and the current makeup of SCOTUS isn’t promising for criminal appellants now that Justices Scalia and Kennedy are gone. But “dauntingly small” is better than “none,” which is Bethea’s chance of success if he doesn’t at least try.

Preservation of issues for appeal

A quick note about yesterday’s unpublished order in Brayboy v. Durrette, a defamation appeal. In the trial court, the defendant filed a demurrer (asserting various reasons why her statements weren’t defamatory) and a special plea (asserting immunity). The plaintiff didn’t file a written response to those pleadings; instead, he moved for leave to amend and showed up on the argument date to urge that amendment.

The trial court considered the amendment motion first and refused it. The defense then argued the demurrer and special plea. Responding, the plaintiff’s lawyer addressed the immunity issue, but didn’t say anything specific about the demurrer arguments. The court sustained both the demurrer and the special plea and dismissed the action.

On appeal, the plaintiff briefed both defensive pleadings, but the justices yesterday ruled that the plaintiff waived any objection to the demurrer ruling, because the lawyer didn’t argue against it in circuit court. That violates Rule 5:25. And since the demurrer is an independent ground for the underlying judgment, the Supreme Court doesn’t have to address the immunity issue. That’s because of something the court calls the Manchester Oaks doctrine: If the judgment rests on two separate grounds, and the aggrieved party appeals on only one ground, the court will simply affirm on the unappealed ground. This is a little different from Manchester Oaks, because the plaintiff really did appeal on the immunity issue; but when the court found that issue to be waived, it made case disposition simple.

This is a classic, though painful, lesson for trial-court litigants: Don’t hold back. If your opponent asserts parallel attacks, be sure to offer a meaningful response to each one, or your appeal will be tragically short.