ANALYSIS OF JANUARY 10, 2013 SUPREME COURT DECISIONS[Posted January 10, 2013] In the first batch of new decisions of the year, the Supreme Court hands down rulings in several fascinating cases. There are 12 published decisions today, reflecting the smaller-than-usual argument docket in November. Let’s jump right in and see what happens today.
Anyone with a finger on the pulse of the Virginia legal community has heard at least something about Allied Concrete v. Lester. It’s the Charlottesville case involving personal-injury claims by a man and wrongful-death claims involving his wife, who was killed in a collision with a concrete truck. A jury awarded the man $2.3 million on his PI claim, and gave the decedent’s parents $1 million each for the loss of their daughter. It also awarded the widower $6.2 million in the wrongful-death claim.
During the proceedings below, the defendant learned that the widower’s Facebook page might prove a fertile ground for useful evidence at trial. The company sent a request for production, seeking copies of everything on the page. In response, the plaintiff’s lawyer unwisely told the man to “clean up” his page, because they didn’t want surprises at trial, such as the photo of the widower wearing a shirt bearing the phrase, “I [heart] hot moms.” The client dutifully deleted his Facebook page, then stated in the response to the RPDs that he didn’t have a Facebook page as of the date of his answer.
It probably didn’t take too long for this whole scene to unravel, and before long, the defendant had copies of the documents from the Facebook page, and the e-mail chain running from law firm to client. The judge decided to give an adverse-inference instruction for anything that wasn’t reproduced in detail from the Facebook page, basically telling the jury that the plaintiff had tried to destroy evidence.
And yet, despite all that, the jury came back with a multi-million-dollar award, as noted above. The trial judge refused to grant a mistrial based in the cumulative effect of these events and an allegation of juror misconduct during voir dire. But the judge did grant a motion for remittitur, finding that the award in favor of the widower was too high; presumably influenced by passion, bias, or prejudice in his favor. He remitted the widower’s wrongful-death award to $2.1 million – essentially mirroring the award to the parents, plus the amount of special damages shown by the widower. The judge also sanctioned the plaintiff’s lawyer over $500,000, and the widower $180,000, matching the company’s costs of litigating the misconduct issue.
Both parties headed for Richmond; the company sought a new trial, while the widower sought reinstatement of the verdict. Today, the Supreme Court rules in favor of the widower on all issues, despite its patent displeasure with what went on in discovery. The court finds that the trial judge appropriately handled the spoliation issue with sanctions and instructions. It notes that the jury heard the adverse-inference instruction twice: once while the widower was on the stand, and again just before closing arguments. This is a matter of abuse of discretion, and the justices decide not to second-guess the trial judge on it. The court similarly finds that the claimed juror misconduct during voir dire wasn’t clearly inappropriate, given the language of the voir dire questions.
Finally, the court reinstates the full verdict in favor of the widower. It finds that the trial court committed two errors in ordering remittitur. First, it incorrectly compared the widower’s award with that of the parents; the court has long disapproved of comparison of verdicts as a basis for remittitur. Second, the court rules that the judge failed to consider the evidence in the light most favorable to the party who got the verdict. The judge stated in his post-trial order that he had considered the evidence in that light, but today’s majority notes that in spelling out his rulings, the judge cites the evidence that would minimize the award, instead of reciting what would support it.
You read that last sentence right; I said “today’s majority.” This is not a unanimous decision. Justice McClanahan agrees with the rulings on spoliation and juror misconduct, but she thinks that the remittitur was perfectly fair. She goes beyond arguing in her dissent that the award was within the trial judge’s discretion; she calls this case the death knell for trial judges’ discretion.
Really; she does. She uses that exact phrase, along with “for all practical purposes the last nail in the coffin of remittitur has been driven.” She posits that the recent history of remittitur cases has given trial courts an ever-shifting target of procedural requirements, elevating form over substance and taking away a right and responsibility that judges have had for generations.
I argued a remittitur appeal recently, and one aspect of it intrigued me, although the court didn’t decide that case on this basis. The law of remittitur requires (1) that the trial judge must lay out in the record how he evaluated the evidence, being sure to favor the party who got the verdict, and (2) that the justices must be able to determine whether the remitted amount bears a reasonable relation to the damages proven. My musing is, what happens if the answer to both questions is no? Obviously, it’s going to result in a reversal, but with what outcome? Can the justices remand the case to the trial court, saying, “Give us a better explanation?”
Today’s ruling illustrates that the result of such an appellate finding is reinstatement of the verdict. The justices do not evaluate today whether $6 million is excessive or not: once they find that remittitur was inappropriate, the verdict controls; end of case. That puts the onus upon the proponent of remittitur to ensure that the trial judge not merely grants the motion (congratulations on the victory), but explains it satisfactorily. If there’s an inadequate explanation, the victory will evaporate on appeal.
We get a real rarity in today’s ruling in Funkhouser v. Ford Motor Company. This is the second iteration of this case, which had been decided by a 4-3 vote back in June. The court granted rehearing, as it’s been doing with much greater frequency these days, and today, the court issues another 4-3 ruling – but this one goes the other way. A bare majority of the court votes to affirm the judgment, thereby sending lawyers scurrying off to revise their pocket briefs for next week’s trial.
I covered this case in June, so I won’t reinvent the wheel here by restating the facts and procedural history. I will mention that Justice Millette turns out to be the swing vote. He voted with Justice McClanahan’s majority last year, but this time, Justice Powell (who wrote last year’s dissent) convinces him. Indeed, it’s overwhelmingly likely that he’s the justice who directed rehearing; see Rule 5:37(e).
As the law now stands, generalized statements about how a given set of circumstances is similar to others won’t suffice as the foundation for expert testimony. The issue here is the origins of fires in other Ford vans, but the ruling will apply to other aspects of causation evidence as well. Here’s the key language: “[W]e today hold that an expert cannot offer opinion testimony based on evidence that fails the substantial similarity test. To hold otherwise would be to allow an expert to offer an opinion based on speculative or otherwise irrelevant evidence.” In short, the court applies the “substantial similarity” requirement to evidence of other incidents, in order to make those incidents admissible, either directly or through expert testimony.
There’s more. As one of my readers pointed out, this blade cuts both ways, and it might actually be worse news for personal-injury defense than for plaintiffs. (Not in this case, of course; the inadmissibility of this evidence basically ended this litigation in the trial court.) Specifically, legions of defendants commission Rule 4:10 medical examinations to assess a plaintiff’s condition. (The defense calls these “independent medical exams”; the plaintiffs call them “defense medical exams,” finding nothing “independent” about a doctor who’s paid for by the defendant.)
In many of those cases, the examining doctor expresses an opinion about the severity of the injury (or lack thereof), stating something like, “In my experience, an injury like this typically has a recovery time of X weeks, with full mobility thereafter.” As I see it, the new Funkhouser decision requires that doctor to establish the circumstances of all those other injuries, to ensure that they’re really “similar.” If they aren’t, then plenty of doctors’ testimony (including doctors who testify based on records reviews instead of a medical examination) will wind up on the motion-in-limine floor.
I’ve now covered Supreme Court opinions for 49 sessions (next Monday will be the eighth anniversary of the founding of this website), and this is the first time I’ve seen the court rule the opposite way after a grant of rehearing. In all the other instances where rehearing has been granted, the court has modified the language somewhat, or perhaps one or two justices decided to dissent instead of sticking with the majority. Of course, when you get a rehearing in a 4-3 case, that signals the likelihood of just this kind of result.
There are three decisions today involving asbestos exposure. We’ll take up Ford Motor Company v. Boomer first; it’s a suit by a former State Trooper who died of mesothelioma during the pendency of the case in the trial court. He had been exposed to asbestos in his job, since he was a sort of inspector of inspectors – he monitored state inspection stations as they conducted periodic inspections of motor vehicles. Over that time, he endured repeated exposure to asbestos while watching inspectors use air hoses to blow out brake-pad dust while checking vehicles’ brakes.
After a plaintiff’s verdict, the defendants raised several assignments of error, but there’s really only one dominant issue in today’s opinion. The justices agree with the defendants that the trial court should not have given a “substantial contributing factor” instruction, and they remand for a new trial.
The analysis of the issue is, despite its length, pretty straightforward. Justice Millette, writing for a unanimous court (no, really) walks us through the standards for proving causation, as outlined in previous caselaw, where two or more causes contribute to an injury. In one sense, there’s only one known cause for mesothelioma: asbestos exposure. The question in this case was whether the trooper had been exposed to asbestos dust in a brief stint as a pipefitter at a shipyard, years before he became a trooper.
Noting that the “substantial contributing factor” test can easily create confusion, the justices settle upon the premise that a plaintiff must prove that the defendant’s conduct was a sufficient cause of the injury, even if it was concurrent with another cause. This is consistent with the court’s prior caselaw. The opinion notes that Virginia’s model jury instructions don’t contain this nuance, so perhaps we’ll see a new addition soon.
The decedent in Exxon Mobil Corporation v. Minton was exposed to asbestos in a more conventional way, by working on ships over a course of years. His heirs got an eight-figure judgment against Exxon, the owner of the vessels, based on federal legislation to protect longshoremen and harbor workers. He also recovered $5 million in punitive damages.
Exxon appealed, and today’s opinion explores issues of liability and damages. In order to establish liability under this act, a plaintiff must show that the shipowner had “active control” over certain activities, or that it had a duty to intervene where a shipyard’s protective arrangements clearly were inadequate. (A third ground, termed the “turnover duty,” is not implicated in this case.)
The justices first reject Exxon’s contention that the plaintiff didn’t establish active control or a duty to intervene, reciting evidence in the record to support any such claims. So far, except for the number of zeroes, there’s nothing particularly remarkable about this part of the case. But the court then takes up an evidentiary ruling, and that’s where things get interesting – and, as it turns out, divisive.
The trial court had sustained the plaintiff’s objection to Exxon’s proffered evidence about what knowledge the shipyard possessed about asbestos dangers and presence. The plaintiff had contended that the shipyard’s knowledge was irrelevant to the analysis of Exxon’s duties and liabilities. Today, a majority of the court reverses that ruling and sends the case back for a new trial, holding that the shipyard’s knowledge was relevant to whether Exxon had a duty to intervene. The majority reasons that Exxon could well have relied upon the expertise of the shipyard in matters pertaining to shipyard safety.
The majority also reverses and dismisses the plaintiff’s claim for punitive damages under the federal act, ruling that the language of the act excludes such damages as a matter of law. Here’s the relevant text:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title. . . . The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this [Act].
Since the statute provides an exclusive remedy, and since it doesn’t mention punitive damages, the majority reasons that punitive damages are excluded.
There is, as noted above, a dissent. Justice McClanahan writes separately, joined by Justice Powell. The dissenters agree with the early rulings on Exxon’s duties and liability, but they part ways with the majority on the exclusion of the evidence about the shipyard’s knowledge. They agree with the trial court that whatever the shipyard knew was immaterial to what duty Exxon had. Indeed, the dissent observes that the majority’s evidentiary ruling is logically inconsistent with its earlier finding that Exxon knew enough to require it to step in to correct the shipyard’s ineffective safety precautions.
The dissenters also disagree with the ruling on punitives, noting that those damages have long been part of the common law, and have been recognized as being available under maritime law. The dissent sees no reason why the exclusivity language, which deals with a remedy (“The remedy provided in this subsection shall be exclusive of all other remedies”), should apply to the categories of damages that are available.
Maritime law emphatically isn’t my gig, but based on what I see here, the dissent is absolutely right – especially on the evidentiary ruling. Once the plaintiff established that the workplace was unsafe, and that Exxon knew enough to require it to intervene, it didn’t matter one bit whether the shipyard’s inadequate safety measures were due to negligence, ignorance, or even malevolence; Exxon still had that duty, and the plaintiff proved that the duty was breached. (Even the majority acknowledged that the plaintiff proved this much.) This is one of those instances where the exclusion of evidence was within the trial judge’s discretion; I’m convinced that he got it right.
As for punitives, the dissent distinguishes between a remedy and damages, noting the differing definitions of those two terms, and accuses the majority of mistakenly conflating them. I agree; there’s a difference between “the means of enforcing a right” (a remedy) and the types of damages that can be recovered when one employs a legal remedy. Here’s another take on the issue, from a guy who knows something about what legal remedies are: “Examples of remedies include such disparate devices as the rescission of contracts and bills for injunctions, but suits at law for money damages will dominate a frequency chart comparing the incidence of individual remedies.” J. Costello, Virginia Remedies §1.01 (4th Ed.) (emphasis supplied). That is, a lawsuit is a remedy; damages are just things you recover when you sue.
In the end, though, the dissent can amass only Justice McClanahan’s vote, plus Justice Powell’s vote, plus my vote. That adds up to two votes (since my vote here counts as much as it does at home whenever I disagree with The Boss).
The latest salvo in the ongoing battle over the authority of trial judges to be creative in criminal cases is Kelley v. Stamos. Kelley is a GDC judge who decided to cut a DUI defendant a break. In exchange for a guilty plea, completion of an ASAP course, and a fair amount of community service by the defendant, his honor reduced the DUI charge to reckless driving.
Our other principal, Stamos, is a prosecutor who didn’t like that arrangement one bit. In her role as chief deputy Commonwealth’s Attorney, she filed a petition in the circuit court for a writ of mandamus, asking that Judge Kelley be ordered to sentence the defendant for DUI. The judge responded with a demurrer; the circuit court rejected that pleading after a hearing and entered the writ. The GDC judge filed a motion to reconsider and an answer (this is significant in my mind; see below), but the circuit-court judge refused to budge.
The GDC judge got a writ to review several aspects of this case. Today, a majority of the court votes to reverse, dismissing the petition. The court finds that the GDC judge had jurisdiction over both offenses (DUI and reckless), and observes that warrants in GDC routinely get amended. It finds that the statutory authority that provides the power of amendment means that the GDC judge had the power to change this charge from DUI to reckless, based on the circumstances before him. His sentencing order was not void, because it was not in excess of his jurisdiction: He had the power to hear DUI cases, he had the power to hear reckless-driving cases, and he had the power to amend warrants. Accordingly, he can sentence a defendant for reckless despite an initial warrant for DUI.
Justice McClanahan turns to the separation-of-powers doctrine for her dissent. She notes that it’s up to the executive branch – the elected prosecutor – to decide which charges will be brought against which defendants. Judges don’t get to make prosecutorial decisions. She also points to caselaw holding that reckless isn’t a lesser-included offense of DUI; the two offenses call for entirely different proofs. Justice McClanahan concludes that the judge has usurped the prosecution’s constitutional role, and he didn’t have the power to render this kind of judgment. She would affirm the writ and require the GDC judge to adjudicate the DUI charge, and sentence if necessary.
I noted above that it was significant that the GDC judge initially filed a demurrer, and later filed an answer after the writ had already been issued. That highlights the fact that the circuit court issued the writ before the parties were at issue. That seems wrong in my mind. I don’t see how a judge could order affirmative relief against the defendant when the only pleadings he had before him were the petition and a demurrer. The only purpose of a demurrer is to test the sufficiency of the petition. Logically, the writ could only issue after the respondent judge had admitted or denied the specific factual allegations in the petition, and those admissions and denials came in the answer. But this procedural anomaly isn’t discussed, and certainly isn’t adjudicated, in today’s opinion.
I learned some time ago about the circumstances surrounding L.F. v. Breit, so I’ve been eagerly anticipating today’s ruling. It’s a question of statutory interpretation, and the key language, from Virginia’s assisted-conception statutes, is fairly concise: “A [sperm] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.”
The purpose of this provision is to prevent a sperm donor, who has no real relationship to the family unit, from seeking to establish rights to a child. It also shields a sperm donor, also with no real connection with the family, form having to defend against a child-support petition. In those situations, the donor is a stranger to the family relationship.
But those aren’t the circumstances here. Mom and Dad were unsuccessful in their efforts to conceive naturally, so they did so through in vitro fertilization. They both signed an acknowledgement of paternity, noting that Dad was, well, the Dad; they also executed a custody and visitation agreement before birth.
Why would they go through all that rigmarole? Two reasons: Dad is a lawyer, and he and Mom weren’t married. Now go back and look at that statutory language for a sudden vision of what’s going to happen here.
The child turned out to be a little girl. I have experience with little girls, having raised one to the current height of 5’9”, so I know what a blessing it is. (It becomes a curse when she becomes a teenager and ruins you financially. But I digress.) The family spent several happy months together, with Dad performing all the normal obligations of a Dad, with the full knowledge, consent, and even encouragement of Mom.
This ended abruptly 13 months later, when Mom left and took the girl. Dad filed a petition seeking custody and visitation, but Mom got a substitute judge to dismiss Dad’s claims, based on the quoted statute. He was unquestionably a sperm donor; he wasn’t married to the mother; hence he isn’t a parent and has no rights regarding the child. So the trial judge ruled.
The Court of Appeals didn’t see it quite that way; a panel of the court reversed, finding that the signed acknowledgement of paternity was sufficient to make Dad the father of the little girl. Mom appealed, as did the guardian ad litem for the little girl (more on that in a bit). The justices agreed to take a look at the case.
Today, the Supreme Court unanimously affirms the CAV’s decision. It holds that the quoted statute has to be read in conjunction with the statues relating to establishment of paternity. The General Assembly is free to encourage marriage, but it can’t deprive fathers of the due process right to have an avenue open to establish this kind of relationship. The opinion notes the many circumstances that distinguish this case from the stranger-as-donor situation I described above. Here’s the key holding:
We agree with the Court of Appeals that the General Assembly did not intend to divest individuals of the ability to establish parentage solely due to marital status, where, as here, the biological mother and sperm donor were known to each other, lived together as a couple, jointly assumed rights and responsibilities, and voluntarily executed a statutorily prescribed acknowledgement of paternity.
Dad doesn’t win literally every ruling; the court rejects his equal-protection claim, largely because “the fact that a male is unable to be the gestational carrier of the fertilized ovum is the result of biology, not discrimination.” (Thanks to Justice Mims for this bon mot, which I might have to steal sometime.) But he wins all the important battles.
The court also reaches out to make one additional, important ruling. It rules that a child has a liberty interest in establishing a relationship with a parent. Here is Justice’ Mims’s summary of the issue, which telegraphs fairly well how the ruling is going to come out:
[Mom] argues that the rights of children cannot be bartered away by agreement and that all such agreements are void ab initio and of no effect. As strange as it may seem, the thrust of [Mom]’s argument is that the acknowledgement of paternity impinges on a child’s right not to have a parent.
The court distinguishes a case where it had held that child-support obligations cannot be contracted away, noting that the agreement between Mom and Dad here would have the opposite effect – it would give the girl a source of support.
I mentioned above that the little girl had appealed the CAV’s ruling. That appeal was perfected by the guardian ad litem, who had been hired by Mom. One of the subtexts of this case below was the patent unfairness of not having an unbiased GAL to represent the child. Predictably, just about everything the GAL did in the case supported Mom’s arguments.
As it has been described to me, the GAL argued before the CAV last year that the best interests of the child weighed in favor of Dad’s having no rights and no relationship with her. I wasn’t at the argument, but I’ve been told that a member of the panel, who shall remain nameless, but who is the chief judge of the Court of Appeals, interrupted the GAL at this point, saying, “Are you really insisting that it’s in the best interest of this child not to have a father?”
The only good advice for a lawyer in this position is to sit down as quickly as possible; nothing good can result from anything that you can say in response to such a question. Today’s ruling is the final vindication of that chief judge’s premise; this child will have two parents (albeit probably still warring ones).
Criminal law and procedure
The split decisions go on; another 4-3 ruling comes along in Dressner v. Commonwealth. This one refines the circumstances when expungement is available.
Two years ago, the justices decided Necaise v. Commonwealth. In that case, Necaise had pleaded guilty to reduced charges (misdemeanors, down from felonies) that were lesser-included offenses of the original charges. He later sought expungement, claiming that he was not guilty of what he had been arrested for. The Supreme Court ruled that such a plea disqualifies you for expungement, which is limited to situations where you’re acquitted, a nolle prosequi is taken, “or the charge is otherwise dismissed.” Pleading to a lesser-included offense won’t cut it.
Dressner’s facts are different (and, until you see the context, almost bizarre). She faced possession of marijuana charges – not exactly a felony, but you don’t want it on your record, either. When she got to court, she reached a plea deal that allowed her to plead guilty to reckless driving, with the drug charge being tossed.
No matter; the nice judge found her guilty on a plea and fined her $200. Next case.
Dressner then applied for expungement, alleging (and proving) that she had lost a job because a records check had turned up the marijuana arrest. The trial judge found that the retention of the arrest record was causing her a hardship, but he balked when he decided that expunging the marijuana records would expunge the reckless conviction, too, and that would “distort the record.” He denied the motion; the justices granted a writ.
Today, four of the justices vote to reverse and remand for entry of an expungement order. The reason that since reckless driving isn’t a lesser-included offense of simple possession, the amendment really did count as having the drug charge “otherwise dismissed.” The majority (the chief justice, joined by justices Lemons, Millette, and Mims) notes that Dressner didn’t enter a plea to the marijuana charge, and the trial court never found the evidence sufficient to convict her. That’s enough like a dismissal for their purposes.
Justice Powell dissents, and she’s joined by Justices Goodwyn and McClanahan. She thinks the lesser-included angle ins’t a meaningful distinction, and figures that the eventual entry of a guilty plea means that the charge wasn’t dismissed. After all, she notes. There’s a difference between amending a charge and dismissing it, and she even has Webster’s Dictionary to back her up on that.
So how did we get from marijuana possession to reckless driving? Here’s the defense lawyer’s oral explanation, from the dissent:
Dressner was in a car with her boyfriend. Her boyfriend had marijuana on him. Um, there was a small degree of concern on the part of the defense that a marijuana charge might be made but she had been stopped for going 85 miles per hour and hadn’t been charged with that so the charge was amended and everybody walked away.
That makes it a bit more understandable. And yet, thinking about this factual recitation made me wonder about a slightly different fact pattern, one that might resonate just a bit more with the dissent.
Suppose that Dresser had been stopped after driving 85, with no one else in the car. The nice officer sees a clear, glassine baggie on the front seat (in plain view, of course) containing a green, leafy material, and nabs her for simple possession. Except that upon lab analysis, the leafy material turns out to be oregano, not marijuana (both in-demand substances, but hardly interchangeable). The officer shows up on the court date and says, “I’ll drop the drug charges, but I’m gonna nail you for reckless, and you’ll have to come back to court on another date”; so for convenience, Dresser agrees, then and there, to a plea bargain exactly like this one.
In this situation, Dresser would be really-most-sincerely innocent of drug possession, but would have consented to an amendment. By all rights, she should be entitled to an expungement; but the dissent’s proposed rule would leave her with a drug bust on her record. That angle tilts my sympathies here to the majority – not that they need my vote, of course.
Numerous cases establish the principle that a defendant isn’t entitled to the same constitutional rights in a probation-revocation proceeding as he is in a criminal trial. Today, in Henderson v. Commonwealth, the justices take up the question of whether a probationer is entitled to confront the witnesses against him to establish the violation.
Released from probation after serving seven-plus years of a 25-year robbery sentence, Henderson apparently didn’t wait long before resuming his former “occupation.” He was picked up less than a month later on another robbery. His probation officer asked the original court for a show-cause, seeking imposition of the remaining term of the original sentence.
At the probation hearing, the Commonwealth called only one witness – a police officer who testified about her investigation into two crimes, both allegedly involving Henderson. Henderson objected that the officer was merely there to recite what others had told her. Because he had a wise defense lawyer, that lawyer knew to make not one but two objections: That the information was hearsay, and that it denied Henderson his right to be confronted with the witnesses against him. (Objecting only on the basis of hearsay doesn’t preserve a confrontation challenge, whether it’s based on the Sixth Amendment in a criminal trial, or the Fourteenth in a probation hearing, as here.) The judge overruled the objection.
The officer told the judge that neither crime had been prosecuted, largely because the victims feared retribution. The Commonwealth introduced evidence about intercepted phone calls from jail where Henderson and two accomplices made incriminating statements about the crimes. (Really, now; if you’re going to make incriminating statements, why would you do so from a phone that’s in the jail? But again, I digress.)
At the close of the evidence, the judge overruled a renewed objection to the officer’s summary, without giving any explanation, and handed Henderson the balance of his 25-year sentence to serve. Keep in mind that he was never independently convicted of any other criminal behavior; neither crime ever went to trial, and only one of them even resulted in an abortive arrest.
A panel of the Court of Appeals actually granted a writ and reversed the conviction, but the full court took up the case and affirmed the reimposition of the sentence in an en banc opinion. Today, the justices affirm that ruling, so Henderson can look forward to plenty of free room and board with the compliments of the Department of Corrections. The opinion notes that, under U.S. Supreme Court precedent, a judge can dispense with confrontation in probation hearings if he “specifically finds good cause” for not allowing it.
This judge didn’t make any specific findings; the only way to fathom good cause here is by inferring it from the rulings overruling the objections. This is looking like a remand for resentencing. But wait; we learn on page 10 of today’s opinion that “the circuit court’s failure to make such a statement [describing the good-cause finding] has not been preserved for appeal in the present case.” Just when it was looking so promising, this issue evaporates. The court goes on to make an independent review of the record to see if good cause existed.