[Posted November 4, 2010] As I mentioned in a post yesterday, the Supreme Court’s opinion day comes a day early this week, even though the argument docket stretches all the way through tomorrow. The court hands down 19 published opinions this morning, most of them in criminal appeals.

Because I have an oral argument in Richmond tomorrow morning, I’ll post analysis of today’s decisions until sometime this afternoon, when I’ll hit the road for yet another excursion up I-64. Once my argument is done tomorrow, I’ll return here and resume the analysis, probably sometime around noon.

Appellate review
I have never before posted analysis under the subject header listed above. The two decisions discussed here are both in criminal appeals, and normally I would consign them to that collection, farther down in this discussion. But today, the Supreme Court issues two major rulings on the application of the right-for-the-wrong-reason doctrine. The two decisions both alter and clarify the situations in which appellate courts will apply that doctrine, or else find an argument waived. Appellate lawyers take note: This is a red-letter day, and you must read these two decisions.

About two years ago, I engaged a couple of my appellate pals in a discussion of the uncertainty over when the Supreme Court will apply the right-for-the-wrong-reason doctrine to affirm on a different ground, and when the courts will find a waiver. (If you want to insert some kind of “appellate geek” crack here, I won’t object.) We were jointly concerned that the court’s jurisprudence wasn’t clear on when the doctrine would be applied and when it wouldn’t, leading some lawyers to perceive that it was done in order to fashion a particular outcome.

That isn’t what happens, but we were concerned enough that we co-authored an essay for the State Bar Litigation Section’s newsletter. In that essay, we pointed out the lack of clarity in the court’s jurisprudence, and advised some defensive lawyering to avoid a surprise outcome. We joked with each other before it appeared that we may be setting ourselves up for some unpleasant times when we each next appeared before the court, depending on how the justices took our essay.

But instead of giving us The Death Stare (or worse), the justices gave us a decision – Whitehead v. Commonwealth – in June 2009, clarifying exactly when the application of the rule was appropriate. We each breathed a sigh of relief, since we now had some solid guidance on when and how the doctrine would be applied.

What we probably didn’t recognize immediately was that Whitehead had a small flaw – it provided that a litigant must have actually urged the “right reason” below. Today, in Banks v. Commonwealth and Perry v. Commonwealth, the court clarifies that whether the argument was raised below or not is irrelevant. Here, from Justice Lemons’s opinion in Perry, are the clarified parameters of this doctrine:

However, upon reconsideration of the case law on this matter, we are of the view that this principle, adopted from Eason, is too broad and is inconsistent with case law that followed it. Failure to make the argument before the trial court is not the proper focus of the right result for the wrong reason doctrine. Consideration of the facts in the record and whether additional factual presentation is necessary to resolve the newly-advanced reason is the proper focus of the application of the doctrine.

Appellate practitioners will immediately recognize the importance of this ruling: It outlines those situations in which the appellate court may step outside the bounds of the trial court’s ruling and apply different legal principles to affirm a flawed but correct judgment. If the record contains all the facts, and the manner in which evidentiary disuptes were resolved is apparent, then the “right reason” is fair game. If there’s an unresolved dispute, the appellate court can’t adjudicate the matter based on right-for-the-wrong-reason. That’s only fair to appellees, who may be lulled into complacency by an early ruling, and thereby decline to adduce unnecessary evidence when they’ve already won the point.

This is probably anti-climactic, but Perry’s drug-possession charge is affirmed, indeed using an alternative reason; while Banks’s firearm-possession conviction is reversed.

Civil procedure
The court decides an intriguing statute-of-limitations question today in Conger v. Barrett, a wrongful-death appeal. Conger, the administratrix of her husband’s estate, filed suit against he husband’s doctors 14 months after his passing. The doctors answered, but the case lay fallow for several years. Relying on the docket-management provisions of Code §8.01-335, the court dismissed the case for lack of activity. Two days short of a year later, the court reinstated the case on the widow’s motion.

So far, it sounds fairly routine. But the doctors noticed something in the tolling provisions of the statute of limitations. They saw that under the wrongful-death tolling statute, if such a suit is dismissed not on the merits, then the statute resumes running at that point. Adding the initial 14 months to the almost 12 months when the suit had been dismissed carries us past two years. They asked the court to dismiss the suit on limitations grounds. The trial court saw it their way, and dismissed the action.

On appeal, the Supreme Court takes a different view. A statute of limitations bars the institution of a suit. It does not, the court points out today, affect already-existing actions (other than things like adding claims or new parties after the limitations period has expired). The effect of an order of reinstatement is to revive the original action; not to start a new one. That means that the widow gets to continue to pursue her wrongful-death action.

The combatants in Heinrich Schepers v. Whitaker return to the Supreme Court for a second skirmish. We saw them in 2008, when the court ruled that the personal-injury plaintiff’s motion to increase the ad damnum from $74,000 (just below the threshold for removal to federal court) to seven figures should have been granted. Before the last appeal, the parties agreed that, since the maximum recovery in the complex case would be $74K, they would waive a jury and have the court try the case on abbreviated evidence. (The defendant, Heinrich Schepers, actually moved for summary judgment against itself, something I’ve never heard of before.)

In my view, the plaintiff’s lawyer did an admirable job of noting on the record that his waiver was dependent upon the judge’s ad-damnum ruling, the very ruling that subsequently got reversed on appeal two years ago. When the case was remanded after the first appeal, the plaintiff again sought trial by jury. The defendant responded that he had waived a jury, and that that waiver still held.

The hearing on that objection must have been something to behold. The judge appeared astonished that the defense could claim that the waiver was not a conditional one; the court allowed a trial by jury. At that trial, the plaintiff hit a home run, and the defendant headed to Richmond to litigate the question of whether one can rescind a waiver of jury trial. The assignment of error asserts that the trial court erred because the plaintiff had agreed to waive trial by jury in exchange for the defense’s promise not to oppose liability.

The Supreme Court rules today that this assignment doesn’t match up with what the trial court actually ruled. Appellate lawyers reading that sentence have already sucked wind, because they know what’s coming: You must assign error to what the trial court actually ruled, not to a ruing it didn’t make. As I have preached, appellate courts don’t review trial courts; they review trial courts’ rulings. What the judge had actually ruled was that the plaintiff’s waiver was specifically limited to the trial that was erroneously capped at $74K. Once that cap was removed by the Supreme Court, the plaintiff was free to demand a trial by jury. The home-run judgment thus gets affirmed.

Earlier this year, the court decided a Dead Man’s Act case involving the obligation to corroborate testimony against a party who’s not capable of testifying himself. In that case (Virginia Home for Boys and Girls v. Phillips, decided in January), the court held that the corroboration must arise wholly independently of the claiming party. Today, in Jones v. Williams, we get a discussion of just how independent such corroboration has to be.

This is a medical-malpractice appeal involving an injury to a baby during childbirth. As sometimes happens, the baby’s shoulders became wedged in the birth canal. That’s an emergency, because the child can’t breathe. The doctor directed a very experienced nurse to apply pressure on the mother’s abdomen to help dislodge the child. The procedure worked, and the baby was delivered; but the pressure produced permanent nerve damage to the baby’s arm.

Sadly the doctor died just four months after the baby was born. The mother, acting as her son’s next friend, sued the doctor’s estate, claiming that he negligently directed the nurse to apply the pressure before he had freed the baby’s shoulders, thus proximately causing the nerve damage.

The issue in this case is whether the nurse’s testimony was sufficient corroboration. The trial court rejected a defense objection that she was not, as the statute requires, a disinterested party. Her testimony, the doctor’s estate argued, was self-serving, because she could, by pinning the blame on the doctor, absolve herself of potential civil liability.

In analyzing this issue, the court goes no farther than the nurse’s testimony. On the dispositive question of whether she received the doctor’s directive before or after he freed the baby’s shoulders, she said she didn’t know. That hardly qualified as self-exculpation, so the Supreme Court affirms the judgment in favor of the mother.

The lesson here seems to be that potentially “interested” testimony isn’t enough to bar the evidence; it has to be actually interested. The court has previously listed six categories of testimony that is “interested,” and all of those focus on the pecuniary interest of the potential witness. Here, the testimony on the key issue was neutral.

Real estate taxation
I have to admit that, halfway through reading TB Venture v. Arlington County, I was prepared to howl in protest at what I knew the outcome would be. The opinion spills the beans on the result (the county wins) in the very first paragraph, just like I’m doing here. Based on certain testimony recited in the first half of the opinion, I thought the taxpayer should have received a bit more love from the court. But upon reading the whole thing, I have to agree; it’s a tough decision, but it’s the only correct one.

The issue is whether a block of 21 condo units must be appraised separately in a petition challenging real-estate tax assessments. Ordinarily the answer is an obvious yes; but these units were different. Apparently to secure some sort of favorable consideration from the county, the developer agreed to separate these 21 units and rent them to low-income families, with rent controls, for 40 years. The taxpayer here wasn’t the developer; it bought the units as a block for the fixed price of $2 million. The ensuing tax assessment of nearly $8.4 million must have come as a rude shock; that figure was reduced twice to a bit over $3 million, going up to $4 million the next tax year.

The taxpayer filed suit to correct assessments that it still thought were too high. It called an appraiser who testified that, given the 40-year restriction, there was no market for individual units; the only way you could sell these was as a block, the way the taxpayer had obtained them. He then gave an opinion of the value of the whole, based on the income approach to value; he subsequently allocated that gross value to individual units, pretty much pro rata. Since no one would buy an individual unit, it made sense to me to appraise it that way.

Unfortunately, that’s not what the Code mandates. As Justice Kinser points out in the unanimous opinion, there is a specific statutory requirement that each individual unit in a condominium must be assessed separately for tax purposes. This approach is comparable to the blanket-lien method of asserting a mechanic’s lien; anyone who practices lien law can tell you that blanket liens are pretty much worthless, and the court rules today that this appraisal method suffers from the same fatal flaw.

This can produce some tough results for taxpayers like this one. Accepting for the moment the appraiser’s testimony that there is no market for a single rent-controlled unit, then there is no fair-market value for that unit. But since the taxpayer has the burden of proving that the value of individual units is lower than the assessed value (that’s statutory, too), a taxpayer in this situation faces an impossible task. No taxing authority can be expected to set an assessment for a rented unit at zero, but in the absence of a specific number, the challenge is doomed to fail.

The court does not, of course, get to rewrite the statute. Conceivably the legislature could address this anomalous situation, but I doubt there will be a substantial lobbying effort on behalf of similarly situated landowners, because there are probably so few of them.

Today’s other real-estate-tax decision comes in FFW Enterprises v. Fairfax County. It’s a challenge to a special tax on commercially and industrially zoned property to fund transportation initiatives. According to the statutory framework, before the taxes can be imposed, the owners of 51% of the affected tax base have to petition the county to impose it. (Imagine that in today’s political climate: “Please raise my taxes!” The Tea-Partiers among us are retching right now.)

The case turns on an interesting quirk in statutory analysis, as it applies to the Constitution of Virginia. Here’s a quote from today’s opinion that I found particularly interesting, and as it turns out, that pretty much decides the case:

In contrast to the federal Constitution, the Constitution of Virginia “is not a grant of legislative powers to the General Assembly, but is a restraining instrument only, and, except as to matters ceded to the federal government, the legislative powers of the General Assembly are without limit.”

What, that didn’t grab you? Actually, it’s a fascinating point of legal minutia that turns out to have profound implications. The challenge here is based on the legal maxim, “Expressio unius est exclusio alterius.” That phrase explains that in interpreting statutes, when there’s a list of items that are covered, you should assume that anything not in the list was meant to be excluded.

That’s perfectly acceptable for statutory construction, but the Constitution isn’t a statute. As I learned from a wise person long ago, the Constitution isn’t a set of laws; it’s a set of rules that say how you go about making laws. In Virginia, as the quote above notes, the powers of the General Assembly are virtually unlimited, except where they’re constrained by the Constitution.

Here, the taxpayer sought a ruling that the limited application of the tax (which exempted residential property entirely) was impermissible. It argued that the Constitution listed the ways in which you could classify property for taxation purposes, and “residential vs. commercial” isn’t on the list. Today, the Supreme Court tells that taxpayer that it doesn’t matter, because the General Assembly isn’t bound by all that Latin when it comes to lists in the Constitution. The court thus affirms a ruling of the trial court, that the taxpayer failed to establish the absence of a rational basis for the classification.

Criminal law
I discussed Carroll v. Commonwealth last year when a divided panel of the Court of Appeals affirmed a trial court’s finding of a violation of probation, and I won’t repeat that entire discussion now; you can read last year’s analysis here (scroll down to the third case). The issue is this: Where a defendant in a rape case enters an Alford plea, can his suspended sentence be imposed where he declines to admit his guilt to his counselor during treatment? The procedure for an Alford plea, of course, is that a defendant maintains his innocence but agrees that the evidence is sufficient to convict him.

Carroll thought it was fundamentally unfair that he was allowed to maintain his innocence before a judge, but had to ‘fess up before a counselor, or else the judge would ship him off to prison. The court today finds that that situation is perfectly permissible under Virginia law, and the Supreme Court affirms the CAV panel’s decision. The lesson here is a harsh one: An Alford plea isn’t a guarantee that a defendant will never have to admit his guilt to anyone, anywhere. As today’s opinion notes in a quote from a Seventh Circuit case,

He can maintain his innocence at the drug store, the grocery store and any other public place he desires. But, when in the private setting of sex offender counseling that is ordered as a condition of probation, and his admission is necessary for rehabilitation, he must admit responsibility for his conduct.

Ordinarily Carroll might have a problem finding a drug store or a grocery store in prison. But the trial court, having revoked his probation, imposed the original five-year term, and then suspended the whole thing. That would normally be a ray of sunshine on an otherwise overcast opinion day. But as I noted last year, Carroll is apparently a real-estate professional, so this conviction, even without active prison time, will likely have a profound effect on his career.

Here’s a question to ponder: Suppose a customer comes into a store and, while the cash register is open, tries to pull a snatch-and-run theft of the loot in the till. The clerk sees him and grabs the money, too, trying to struggle with him for control of it. Eventually the intruder prevails and gets away with a wad of cash. The question of the day is, Do these facts constitute grand larceny from the person (where no force is required) or strong-arm robbery (proof of force is required)?

Well, how about both? That’s what the unhappy appellant got in the trial court in Ali v. Commonwealth. The prosecution presented both theories to the jury, since grand larceny is not a lesser-included offense of robbery (you can trust me on this assertion, or you can check 269 Va. at 608 and see for yourself). Perhaps surprisingly, the jury nailed poor Ali on both charges. Worse, his lawyer didn’t raise the issue of the fundamental contradiction in these two charges. Let’s face it; you can’t both use force and not use force in the same event. But we all know what happens to arguments that you don’t make below.

The Commonwealth responded in the Court of Appeals that the inconsistency issue was waived; that court agreed and refused to apply the ends-of-justice exception to the contemporaneous-objection rule. Today, the Supreme Court reverses, on grounds that will cause a few eyebrows to rise. It isn’t every day that an appellate court holds that the ends-of-justice exception is appropriate, and that finding alone makes this short opinion well worth a read.

The Supreme Court first finds that there’s sufficient testimony to establish the robbery beyond a reasonable doubt. If you’re keeping score, that’s 12 years to serve. But the five-year sentence for grand larceny succumbs to this “core” inconsistency, to the point that the court rules that “the evidence clearly and affirmatively shows that an element of one of the crimes of which Ali was convicted did not occur.” That, my dear readers, is one of the classic situations for application of this exception to Rule 5A:18. The Supreme Court rules that the CAV erred by refusing to apply the exception where Ali was demonstrably innocent of the second charge – even though he was demonstrably guilty of the first one. The judgment is reversed in part and affirmed in part.

Hall v. Commonwealth involves a conviction for felonious escape from custody by force or violence. I analyzed this decision when the Court of Appeals affirmed the conviction, and as I recall, I had some nostalgic fun in composing the analysis (available here). The Supreme Court affirms on largely the same reasoning as the CAV did, so I won’t repeat the discussion here. The specific holding is that you’re in police custody when the nice officer tells you that you’re under arrest and then touches you in some way, in order to effect that arrest. The fact that you struggle and break free before he can clamp the cuffs on you won’t help you.

There are a couple of important holdings in McGhee v. Commonwealth, involving possession of cocaine. One relates to preservation of issues for appeal, and the other, if I’m right, will be an important probable-cause doctrine. McGhee occupied the driver’s seat of a car in a restaurant parking lot at 11:15 pm one evening. The problem was, the restaurant had closed at 9:30. That might not have attracted police attention, but the fact that his headlights were burning and his brake lights were glowing made him sort of hard to miss. (This brings to mind one of my favorite stupid-criminal stories, that of the guy who tried to escape from police on foot at night while wearing a pair of sneakers that lit up with each footfall. The pursuing officers’ biggest problem in that case may have been trying to avoid falling down in laughter as they pursued the perp in his light-up sneakers.)

When an officer approached the car, she “saw a female passenger lift her head out of McGhee’s lap.” (Uh-oh.) McGhee must have realized that he was busted, or maybe he just didn’t want the officer too close, so he helpfully dangled his license and registration out the window as the gendarme approached. The officer testified that when she got to the car, “[t]here was a very strong odor of alcohol coming from his breath. Slurred speech and his eyes were very bloodshot.”

I’m going to stop right there and describe what I think is the important probable cause ruling in today’s opinion. Once upon a time, I prosecuted a number of DUI cases, and in doing so, I tried to go through each element of probable cause with the arresting officer, in a meticulous way, to confirm the many factors that led to a conclusion that the defendant was probably under the influence. Proving just these three factors – odor of alcohol, slurred speech, and bloodshot eyes – was, in my view, just the first step to proving probable cause.

The underlying offense here is public intoxication, not DUI, but I suspect that DUI prosecutors are going to sit up and take notice at this holding in today’s opinion:

Officer Dalton in fact observed signs of physical impairment in McGhee. In addition to the strong odor of alcohol coming from his breath and his very bloodshot eyes, McGhee exhibited slurred speech as he talked with her. Consequently, Officer Dalton had probable cause to believe that McGhee had consumed enough alcohol to visibly affect his “manner, disposition, speech, muscular movement, general appearance or behavior.” Code § 4.1-100.

That is, the Supreme Court of Virginia rules today that evidence of very bloodshot eyes, slurred speech, and a strong odor of alcohol establish probable cause to believe that a suspect is impaired. The statute cited, §4.1-100, is in the Title on Alcoholic Beverages, not Title 18.2, in which the DUI statute is found. And the definitions in §4.1-100 apply to “this Title,” so arguably that definition might not apply to DUI prosecutions.

But the Supreme Court often grafts that definition of intoxicated into DUI cases. See, e.g., Essex v. Commonwealth, 228 Va. 273, 279 n.2 (1984). That means that now, all an arresting officer needs to observe is those three elements, and he’s got probable cause to arrest. He may still elect to offer certain field-sobriety tests to a suspect, in case the suspect refuses to take a breath or blood test; but that’s all he needs for probable cause. DUI defense lawyers and prosecutors may not find this ruling to be as significant as I do, but this might be a vital tool for prosecutors in getting past probable-cause challenges.

The preservation issue relates to the US Supreme Court’s recent decision in Arizona v. Gant, limiting searches of vehicles incident to the arrest of the driver. Gant was handed down after the trial, so McGhee didn’t make that argument at trial; he sought to incorporate it into his CAV argument. Today, the Supreme Court agrees that this argument is waived, because McGhee didn’t anticipate the change in law. This brings to mind the most famous instance of this requirement I can recall: Convicted sniper John Muhammad tried to slip in a Crawford v. Washington challenge in the Supreme Court, and from what I could tell, it might well have worked. But he hadn’t made the argument below. That’s because the Crawford doctrine hadn’t been “born” as of the time of Muhammad’s trial. The court today confirms that if you want to rely on subsequent favorable legal developments, you must make what look for all the world like quixotic arguments, no matter how much you’re worried the judge may scowl at you.

The court decides an animal-cruelty case today, in Sullivan v. Commonwealth. Sullivan is the director of a not-for-profit organization in Augusta County that operates as a sort of shelter for homeless horses. A passerby drove by her facility twice one day in 2008 and noticed a horse down. When the horse was in the same position that evening (trust me; healthy horses don’t do that), the passerby, “who was experienced in the care of horses,” contacted Sullivan to ask for permission to look at the horse.

What she found must have broken her heart; a 20-year-old mare, covered by a blanket despite balmy temperatures, looked gaunt and emaciated. It was so weak that it couldn’t lift its head, and couldn’t reach a nearby supply of food and water. The Good Samaritan called Animal Control. Despite receiving veterinary care in the field and at a veterinary hospital, the horse died that night. The vet testified that the horse had needed “emergency care long before his arrival and that the [horse’s] condition . . . was not of sudden onset.”

The question in this appeal is one of sufficiency to establish misdemeanor animal cruelty. The statute criminalizes depriving an animal of “necessary food, drink, shelter or emergency veterinary treatment.” The trial court found that the evidence established a long-standing condition that should have inspired veterinary care long before the Good Samaritan showed up, and today the Supreme Court agrees. It rules that the trial court had ample evidence upon which it could find that the neglect of this horse fell squarely within the prohibition of the statute.

Sullivan received six months of active jail time for this Class 1 misdemeanor (a one-year sentence, with half suspended). She was also barred from possessing horses for two more years. That may not be the worst of it; if her equine facility requires any sort of licensure (as I assume), she may have significant difficulty retaining that license with a cruelty conviction on her record.

The next case, Sidney v. Commonwealth, explores the realms of anonymous tips and imputed knowledge. Sidney had one or more outstanding arrest warrants on the day when Petersburg police received an anonymous tip that he would be in a certain location, “driving a tan Jeep Cherokee with wood grain side paneling.” The tip described him as a black male, 5’7” to 5’9” in height.

An officer responded to the given location, and guess what? There’s a tan Jeep Cherokee. There’s also a man inside it. Running the license plate, the officer learned that the car was registered to Sidney’s mother.

Perhaps independently, another officer was sent at the same time to the same location to arrest the same Sidney on several outstanding warrants. I’m not absolutely certain, but these two officers may have been operating without knowledge of each other. If so, their efforts soon became coordinated when Sidney pulled out of the driveway and took off down the road. The first officer eventually stopped the car, arrested Sidney, and found the serendipitous bonanza of cocaine and marijuana in the search-incident.

Sidney moved the court to suppress the drugs, claiming that the police had no valid reason to stop him. He claimed that neither officer really knew that he had any arrest warrants outstanding, and the tip didn’t meet Fourth Amendment standards for reliability.

Alas, poor Sidney; there’s a statute that authorizes a police officer to arrest someone for a misdemeanor not committed in the officer’s presence, where a police dispatcher confirms the existence of outstanding warrants. (If it’s a felony warrant – the evidence wasn’t clear on which level it was – then the officer can arrest him anyway.) As for the tip, the court notes that it was substantially corroborated, and was accurately predictive of where Sidney would be and what his environs would look like, right down to the wood-panel trim on the Jeep. The court affirms the convictions.

Let’s turn to the subject of confidential informants, and Bly v. Commonwealth. This one’s a Brady challenge in two drug-distribution convictions.

The problem with using paid informants is often the quality of your “partner.” Sometimes the CI turns out to be a straight shooter; but other times, the fact that you’re dealing with someone who’s already a crook sort of bleeds through. That’s what happened here: Bly was convicted based on two controlled purchases by an informant named Hoyle. After the trial but before sentencing, Bly’s lawyer discovered a letter from the prosecutor to another lawyer in a different case, explaining how Hoyle had turned out to be unreliable in some of his accusations.

The police had been paying Hoyle about $50 a pop for making controlled drug buys over a six-month period that included the time of Bly’s alleged sales. Unfortunately, Hoyle had insisted that he made purchases on certain dates from one seller who turned out to be in jail at the time. In another instance, the accusation turned out to be shaky enough that the prosecutor decided to let the case go instead of prosecuting. With the convictions based on a suddenly unreliable CI, Bly’s lawyer figured he had a meritorious motion for a new trial based on a Brady violation; the prosecution had known about Hoyle’s little problem before trial, but had never disclosed it to the defense.

But the prosecutor convinced the trial judge to deny the motion and go ahead and sentence Bly. A panel of the Court of Appeals reversed, but the court granted en banc rehearing, and by a narrow 6-5 margin, upheld the conviction and sentence, because the trial court heard enough evidence to convict even without Hoyle’s testimony.

Today, by a narrow 7-0 margin, the Supreme Court reverses. The court rules that the issue in a motion like this isn’t whether the evidence would have been decisive in the defendant’s favor; it’s whether the evidence would undermine confidence in the judgment. The court points to several factors (including the otherwise-inexplicable fact that the transactions were digitally audio-recorded, but the prosecution never introduced the recording in evidence) in holding that this omission emphatically undermines that confidence. The case is remanded for retrial, if the Commonwealth decides to pursue the case with a tainted star witness. The defense lawyer is probably salivating over that prospect.

In contrast to the unanimity in Bly, a sharply divided court decides Cordon v. Commonwealth, an appeal of a cocaine-possession conviction. The issue here is our old pal, sufficiency of the evidence.

One November day in 2007, Hampton police came to a home owned by Cordon’s uncle’s house to investigate a report of a burglary. A detective interviewed Cordon, who told him that he lived in another city, but stayed at his uncle’s home. He showed the detective around what he evidently described as “my bedroom,” ever pointing to where a lockbox had been taken from under the bed.

While there, the detective must have noticed something suspicious, because after giving Cordon his card, he apparently sought and obtained a search warrant. Returning two days later, the detective found Cordon gone, but a search of the bedroom revealed all sorts of inculpatory evidence, including five grams of cocaine in a cooler located in the room. He also discovered his own business card in a drawer that contained drug paraphernalia.

A week later, the detective spoke with Cordon and told him what he’d found during the search. Cordon denied living there and ended the chat.

That was enough for the trial court to convict Cordon of possession of the cocaine, after a bench trial. The Court of Appeals affirmed. Undeterred, Cordon sought succor in the Supreme Court.

Today, a bare majority of the court (Senior Justice Lacy, joined by the chief justice plus Justices Koontz and Goodwyn) finds that the mere presence of something as portable as a cooler isn’t enough to establish possession by someone who’s absent from the location. The court distinguishes two comparable cases where a defendant denied possessing items in a room where he was physically present at the time of the discovery, and notes that two days had expired between the initial police report (including Cordon’s statement that it was “his” room) and the discovery of the cocaine and paraphernalia. That, in the view of the majority, means that no rational trier of fact could have convicted Cordon beyond a reasonable doubt.

The dissent (Justice Kinser, speaking for Justices Lemons and Millette) is forceful but measured as it lays out the primary flaw in the majority’s reasoning: This evidence has to be viewed in a light most favorable to the prosecution, since we’re reviewing a conviction here. As with any sufficiency challenge, the question isn’t whether these seven justices would vote to convict; it’s whether a jury could plausibly have convicted.

Taking the Commonwealth’s view of the evidence, it seems likely to me that a factfinder could well have decided that he drugs were there with Cordon’s knowledge. When police find controlled substances in a room that the defendant has this recently claimed as his own, and when he suddenly changes his story about living there immediately upon being confronted with the discovery, I’d have a hard time agreeing that no factfinder could possibly have convicted on this evidence. Based on the discovery of the detective’s business card (plus other papers with Cordon’s name on them) in the room, the judge could well have concluded that Cordon was lying as soon as he learned that the police had discovered the cooler.

If you scan the above scorecard of justices carefully, you’ll note that one of the active justices took no part in the case. That would be Justice Mims, who recused himself presumably because he was Attorney General while this case was pending in the Court of Appeals, so his name would have appeared on the Commonwealth’s briefs. Conceivably, that made a difference, because his replacement, Senior Justice Lacy, not only joined the majority but wrote the court’s opinion. I offer no speculation on what will happen in a comparable future case in which Justice Mims participates – not because I want to be coy, but because I really don’t know how he would react to a set of facts like this.

Also back for a return engagement is the case of Town of Leesburg v. Giordano, a political hot potato up in the State of Northern Virginia. Two years ago, the Supreme Court considered a statute-of-limitations issue in an interlocutory appeal. Ruling on the same day as the original decision in Whitaker v. Heinrich Schepers, the court reversed a limitations ruling and sent the case back for trial on the merits.

I discussed the case here (you’ll need to scroll down to the fourth case this time), so I’ll save redundancy and deal with the equally juicy issues that are decided today. The Readers Digest version of the dispute is that it’s a question of whether the Town had a right to slap a 100% surcharge on water rates for people it served who lived outside the town limits, in Loudoun County. At trial, the citizens persuaded the trial judge, even under the extraordinarily lenient “fairly debatable” standard, that the town’s actions were unreasonable. (Setting water rates is a legislative act, and legislative judgment calls are reviewed under this standard.)

Both sides had presented expert opinions on the question, and predictably each expert supported his client’s side of the dispute. (This is not to say that they’re shills; it merely acknowledges that they would never have been called to testify against their own clients if their conclusions had been different.) Today, a majority of the Supreme Court determines that the town met the fairly-debatable standard, so it reverses and enters judgment in favor of the town.

I spent nine years in local government, so I’m familiar with this lenient standard. It’s based on the separation-of-powers doctrine, which holds that courts can’t review political decisions made by legislatures as long as the issue is even arguably disputable. Here, the majority notes that the town’s expert offered credible testimony based on his area of expertise:

[The town’s expert’s] testimony that the water rate charged to out-of-town customers is fair and reasonable, and that the sewer rate charged to out-of-town customers is practicable, equitable, and uniform, supported by his justifications for his opinion, is sufficient to make the issue fairly debatable.

That, the court finds, makes the question one for the legislature. The majority finds it unnecessary to address the citizens’ assignments of cross-error, a fact it consigns to a footnote.

Senior Justice Russell, dissenting, picks up that buried footnote and waves it around for all to see. He notes (joined by Justice Mims) that one of those cross-errors was whether the fairly-debatable standard applies at all. True, it covers situations where political decisions are made by elected bodies. But here, the affected citizens have no voice in Town politics – they live out in the county, and cannot vote for or against the politicians who decided to double their water rates. In that situation, the dissent argues forcefully, the justification for the fairly-debatable standard floats away on the breeze. In most situations involving political judgment calls, disgruntled citizens can throw the bums out on Election Day. But here, these citizens are effectively disenfranchised. They can holler at their county’s board of supervisors, but those officials will just shrug. They can assail the town’s elected council, but those officials can safely yawn and turn their heads.

This situation was what troubled me so much two years ago, when the limitations issue was decided. If I’d been one of the affected County citizens, I would be furious at being sold down the river (well, across the county line; but it’s metaphorically the same principle here) by my elected officials. Justice Russell senses the same sort of cause for outrage, and expresses it with this sparkling closing paragraph:

Our people are not noted for their docility in the face of monetary exactions imposed upon them by a government in which they have no voice. In the late eighteenth century, a similar grievance led to considerable unpleasantness in this country, leading to a fundamental change of government. That grievance also arose from the fact that those aggrieved had no redress either at the polls or in the courts.

You know what? He’s right. Each citizen has to be given some opportunity to affect the government that regulates him, or in this case, that supplies him with something as fundamental as water. As the dissent correctly points out, citizens have to be able to turn to the courts in a situation like this, where they can’t turn to answerable legislators. By setting such a trivially low hurdle for the town to clear, the majority effectively cuts these citizens off from any form of relief, legal or electoral.

Sexually violent predators
There’s a very important due-process ruling in the only SVPA decision of the day, Hood v. Commonwealth. The decision addresses the point at which counsel must be provided for an inmate subject to the Act, and the question of whether decisions he makes before being assigned counsel will bind him later, after he gets a lawyer.

Shortly before his release date for a prison term for rape and abduction, Hood was identified as a potential sexually violent predator. Initially, he refused to cooperate with the psychologist assigned to evaluate him. Virginia law provides a pretty stiff penalty for a refusal like that, as explained in the notice Hood received:

If a respondent refuses to cooperate with the mental health examination to determine if he/she is a sexually violent predator, the court may admit evidence of the respondent’s refusal and may bar the respondent from introducing his/her own expert psychiatric or psychological evidence. Code of Virginia § 37.2-901. Furthermore, if a respondent refuses to cooperate, any expert appointed to assist the respondent shall not be permitted to testify at trial. Code of Virginia § 37.2-907(A).

Ouch. The psychologist was unable to persuade Hood to cooperate, so he filed a report containing only one side of the situation and that report concluded that Hood was a likely predator. Soon thereafter, Hood got a court-appointed lawyer. That lawyer evidently convinced Hood to go ahead and cooperate, in order to avoid the crushing blow of that statute.

But the trial court ruled that the time for cooperation had passed, and that Hood had refused. The court agreed to appoint a psychologist to aid the defense with trial preparations, but refused to receive that expert’s opinions, either ore tenus or by written report.

The question in this appeal is whether doing that violated Hood’s right to due process. This would be procedural, not substantive, due process, because it’s well-settled that if the Commonwealth follows the right procedures, it can civilly commit sexually violent predators. But can the Commonwealth hammer an inmate for making an uncounseled decision that he later reverses, agreeing to cooperate?

Not anymore, it can’t; the court rules that taking this approach would indeed be a due-process violation. Today’s opinion doesn’t rule the statute to be unconstitutional; it contains a permissive element (the trial court may bar the expert testimony if the inmate has refused cooperation), and that gives trial courts appropriate discretion in cases where the inmate persists in saying, “Hell, no.” But where the inmate changes his mind and the court doesn’t find that that change of heart is purely for purposes of delay (that definitely wasn’t the case here, as the Commonwealth had offered a continuance below), the Supreme Court rules that the inmate has to be given an opportunity to defend with expert evidence. The case is remanded for further proceedings.

A couple of additional notes about this case are worth mention. First, the prohibition in the statute only applies to court-appointed experts, not to those who are privately retained. Hood didn’t raise that issue, so it isn’t adjudicated today. But the court hints in a footnote that it might entertain an equal-protection challenge to a provision like that, which has a different effect on indigent inmates than it does on those who have money for an expert. Second, in yet another footnote, the court catches Hood using the wrong conjunction, when he asks to be allowed to present expert testimony on retrial “if he chooses to cooperate with the state’s expert.” “If”?? The court is careful to box Hood in here, noting that if he changes his mind once again and clams up on remand, the trial court would be fully justified in barring his expert testimony. I’ll assume that he’ll take the hint and will cooperate.