[Posted November 5, 2009] As I noted last week, opinion day arrives 24 hours ahead of schedule this week, since the Supreme Court condensed the argument docket to four days. We get 20 published opinions today, including a new opinion in Kellermann v. McDonough, in which the court had granted rehearing after initially announcing a decision in July.

The theme of today’s opinions is overwhelmingly criminal. Of the 20 decisions, 11 are pure criminal-law, and another three are in habeas corpus cases. (And that doesn’t even include the one sexually-violent predator case, which is quasi-criminal.) In the November session, which concludes today, fully 2/3 of the argument docket is in criminal or habeas cases, so the trend toward taking more criminal appeals is unmistakable. That’s bad news for civil appellants, as criminal cases crowd the civil ones off the docket.

One thing that’s largely missing from today’s batch of opinions is the chief justice. He is the author of only one of today’s opinions (the re-issued Kellermann decision from July), and he participated in only one of the other 19 cases decided today (the Hash habeas corpus appeal, which was argued in June and carried over last session). The chief had been hospitalized for an illness before the September session, and he was therefore unable to participate in the cases argued that time.

Civil procedure
Finality is an important word in many arenas, but it’s absolutely critical in the world of appellate practice. Today we get a decision in a case that helps to define finality in the context of an order that suspends a judgment under Rule 1:1. The case is Hutchins v. Talbert, a medical malpractice case in which the plaintiff hit a home run at trial, scoring a $4 million verdict. The trial court reduced that to the med mal cap and then offset monies that had already been recovered in settlements from other defendants, and entered judgment for $885K.

At the time judgment was entered, the defense indicated that it wanted some time to file post-verdict motions. The court agreed to allow that, so on the same day as the judgment order, the court entered a separate order suspending the judgment for 14 days. The defense duly filed its motions, and the trial court denied those motions within 35 days of judgment (the 21 days provided by Rule 1:1, plus the 14 days in the suspension order). So far, so good; the court had jurisdiction to enter that order.

The defense decided to appeal (good thing, or else we wouldn’t be having this cyber-conversation right now), and filed its notice of appeal 22 days after the date of the order denying its motions, thus beating the mandatory 30-day deadline in Rule 5:9.

But when the case matured, the plaintiff moved to dismiss the case, claiming that the notice had been filed too late. (Motions like this are the third-leading cause of death in trial lawyers, after gluttony and curiosity.) The appellant responded that the notice was timely because the effect of the suspending order was to push everything back to the date of entry of the order disposing of the motions. Hence today’s problem: Just how do you sort out all these dates?

Easy; you go through the rules, one at a time, and see how they line up. The defense motion to set aside the verdict didn’t extend the period for noting an appeal (Rule 5:5). The suspension order merely postponed the start date for the judgment. And since the order entered by the court denying the motions didn’t modify, vacate, or suspend the judgment (in fact, it confirmed it), that order didn’t give the defense a fresh 30 days within which to note its appeal. That means that the notice had to be filed within 30 days after the expiration of the 14-day suspension, and that deadline passed ten days before the notice was actually filed. The appeal is thus dismissed for lack of appellate jurisdiction, a quality you can never fudge.

Lesson: If you’re going to note an appeal, why wait? Once the trial court enters its order finally disposing of your case, the best advice is to go ahead and file the notice right away. Doing that protects your right to appeal, but doesn’t obligate you to do so, so if the client wants to think about whether to spend the money to pursue the case, you won’t have to put a lot of billable hours into the case for a simple 3-sentence notice. It also doesn’t constitute entry of an appearance in the appellate court (since the notice is filed with the clerk of the trial court, not the appellate court), so if you’re worried about becoming counsel of record on appeal (when you really plan to do the sensible thing and hire an appellate lawyer), you haven’t bound yourself to that, either.

The only pure-tort opinion of the day is the reissuance of Kellermann v. McDonough. I posted extensive analysis of that decision here, so I won’t repeat that. Today’s opinion reaffirms the rulings in the July opinion; the parents each must defend claims of a common-law duty, and the mother must answer for her alleged promise to take particular care of the decedent. The principal difference between today’s opinion and the July version is a new paragraph that notes that the duties that will be at issue on retrial are “a general duty of ordinary care and an assumed duty,” and the plaintiffs will have a burden of establishing proximate cause in both of those claims. As before, the vote is 5-2, with Justices Koontz and Kinser dissenting.

Harbour v. SunTrust Bank is a squabble between some family members and a church over who gets most of the assets of Aunt Mollie’s inter vivos trust. She set it up to provide for herself and her husband, Uncle Harry, and listed four contingent beneficiaries: Her three siblings, and a church. The trust provided that upon Uncle Harry’s death, the trust res would be distributed in equal shares to those four. But there was a catch: In order to get a share, her siblings had to survive her. If one of them didn’t outlive Aunt Mollie, then his or her share would go into the church’s column.

Two of the three did just that, no doubt attending Aunt Molly’s funeral in 1999. But Uncle Harry hung on another eight years, and by then, both of the remaining siblings had passed on, leaving one heir apiece. The question in this case is whether those two remainder interests had lapsed.

The language of the trust states that all the siblings had to do in order to be entitled to a share was outlive their sister, Aunt Mollie. But somehow, the trial court interpreted that as a requirement that they outlive Uncle Harry, too; it accordingly ruled that the church got the whole caboodle. Today, the Supreme Court reverses, applying the plain text of the trust. The way Aunt Mollie set it up, the siblings’ interests would vest upon her death, but they would only be entitled to receive the proceeds when Uncle Harry passed away, too. That means that the church will have to make do with only half of the trust res, while the two grateful nephews get the other half.

I’m a bit surprised that this appeal is decided by published opinion instead of by unpublished order, since the decision is entirely driven by the unique language of this trust.

I have had the good fortune to meet Justice Koontz on several occasions, and I’ve always found him to be a pleasant, personable, and gracious man. That makes it all the more lamentable that he’s the one who’s saddled with the chore of authoring the court’s opinion in today’s only SCC appeal, Piedmont Environmental Council v. VEPCO. Having read this 35-page opus, I can tell you that the subject matter is as dry as last week’s toast, although his honor does a fine job of jazzing it up with something near and dear to my heart – a history lesson. (If I had followed my early interest instead of heading off to law school, I probably would have become a history teacher, and you’d be reading something else right now.)

Since the audience for SCC appeals is probably fairly limited, and since all the strawberry preserves in the Commonwealth can’t make last week’s toast any less dry, I’m going to summarize the primary rulings, so you can get on to reading all the salacious stories in the criminal law section. This appeal involves a decision by the SCC to approve two applications to construct high-voltage transmission lines in several counties in northern Virginia. The counties had appealed the approvals, and since appeals from SCC decisions are of-right (you don’t have to petition the court to grant a writ), the parties headed off to Richmond.

Today the court holds that the SCC didn’t improperly find that the construction of the lines was necessary, and that it afforded appropriate weight to data received from the utility itself in support of the applications. It finds ample support in the evidence for the commission’s decision, and acknowledges the deference that courts must give to decisions by fact-finding agencies. That’s true in ordinary situations like jury trials, but it’s double-dog true with the SCC, which has special expertise within its subject area.

Criminal law
Enough of this civil stuff; let’s go check out the crooks.

Let’s suppose you’re out for a stroll one evening, and you encounter a uniformed police officer. He pauses to ask you, “Excuse me; would you please give me your name, address, Social Security Number, and date of birth?” We can probably agree that in that situation, most citizens would feel duty-bound to comply. But lawyers know that one perfectly permissible response is, “No, thanks; have a nice evening,” followed by ambling on down the sidewalk.

A Danville man with the imposing name of Chauncey Lamont Montague evidently isn’t a lawyer, because he gave up that requested information when two off-duty officers, working security at an apartment complex, asked him that question one day almost three years ago. Montague and a companion were seen walking toward a car in the complex, and the officers wanted to ensure that the two weren’t on the “banned” list (those ordered off the premises by the landlord).

One of the officers passed the information on to a police dispatcher to check for outstanding warrants. In the couple of minutes while they waited for a return on that inquiry, the officers checked the banned list (nope; no Chauncey) and the four may have chatted idly; the companion sat down on a nearby doorstep while they waited.

The request was productive; Montague had two outstanding warrants. One of the officers immediately told him he was under arrest, and the peacefulness of the encounter ended as Montague struggled to escape being taken into custody. In the course of the struggle, several things happened, the most important of which were (1) Montague struck one of the officers in the chest with his elbow, and (2) it started raining evidence as the contents of Montague’s pockets escaped in the struggle. Those contents included a gun and several packets of cocaine.

Montague moved to suppress the evidence, claiming that he had been unlawfully seized. The trial court was unmoved by the argument; it admitted the evidence and convicted Montague. The CAV affirmed in an unpublished opinion, but the Supreme Court granted a writ.

In the past couple of years, that’s been an ominous sign; the Supreme Court has granted a significant number of writs in case where the Court of Appeals refused to hear the case, and has reversed quite often in that situation. But the CAV gets a respite today as the justices affirm the conviction in Montague v. Commonwealth, due to the fact that Montague wasn’t seized when the officers asked for his identifying information. Since he was free to refuse, and a reasonable person would have known that (poor Chauncey, condemned by today’s opinion for all time as an unreasonable person), this was a consensual encounter, so he wasn’t seized until the news of the warrants came over the radio and he was placed under arrest.

Mind you, not every situation in which the police casually ask for ID will be consensual. I can think of at least a couple of situations in which a seizure unquestionably takes place: Envision such a polite inquiry while the defendant is surrounded by six officers with guns drawn, all pointed at his torso; or one where the nice officer has the defendant in a hammerlock. In both of those cases, there’s no question that a seizure has taken place. But here, there was no show of force or authority; just an inquiry.

For the second time this year, we get a published opinion in Wright v. Commonwealth, implicating the question of whether one can possess something that’s miles away. Wright was convicted of possession of a firearm while possessing cocaine with intent to distribute. The rub is that he was arrested five miles from home, and the gun was back at home.

I wrote about this case in conjunction with the Court of Appeals’ published opinion on January 13, and the Supreme Court’s ruling is essentially the same (the courts differ on a minor procedural point that turns out not to affect the decision anyway), so I’ll refer you to that essay. The bottom line is that one can constructively possess both drugs and a gun simultaneously, even though the gun is elsewhere. The key terms in the statute, while and simultaneously, are components of time, not space, so Wright’s conviction is affirmed.

I have been eagerly awaiting a ruling in the consolidated appeal of Singleton v. Commonwealth and Zedd v. Commonwealth ever since I learned that the Supreme Court had granted writs in the cases. The appellants are two lawyers here in Tidewater who had the misfortune to do what countless other lawyers have long done, only to find themselves before the wrong judge on the wrong day.

The sins of these lawyers were simple: They agreed to continuances of traffic-court cases, and told their clients to appear on the new date instead of the original one. Once upon a time, when I worked in the Virginia Beach City Attorney’s Office, I made arrangements like this with defense lawyers virtually every time I went to court to prosecute misdemeanor appeals. No one thought the process even slightly unreasonable.

Ah, but I didn’t have to go to Norfolk, where both of these gentlemen of the bar found woe. Singleton agreed with the prosecutor on a new date and even endorsed a continuance order and gave it to the prosecutor. Neither he nor the client appeared on the original return date. On that date, when the prosecutor told the judge about the agreement and tendered the order, the judge asked, “Where’s Mr. Singleton, and where’s his client?” “Uh, they’re not here, your honor; we agreed on a new date.” The judge insisted that he, not the lawyers, got to decide whether to grant a continuance. He wound up finding Singleton in contempt and fining him $250.

Zedd’s story was even less egregious (at least in my humble view): This time, the prosecutor wanted a continuance, too, because the state trooper in the case couldn’t come to court. The lawyers agreed on a new date, and this time, Zedd showed up to ensure that the case was continued. Again, no client, and again, the judge found the lawyer guilty of contempt for inviting his client not to waste a trip to court.

The Court of Appeals affirmed both lawyers’ convictions – Singleton’s was published, and Zedd’s followed inexorably in unpublished fashion shortly thereafter – although I thought I detected a subtext of unease in the opinions. The CAV held that a judge really is the master of his docket, and lawyers can’t circumvent that by ensuring that the case must be continued because the parties and witnesses aren’t there.

But how can this be, I wondered. Lawyers do this all the time, hundreds of times a day, all across the Commonwealth. These two, it seemed, just happened to be unlucky enough to be assigned to the courtroom of a grumpy judge who decided to assert his authority. (The judge is no longer on the bench, since the General Assembly did not reelect him last year. These cases may have played a role in that decision, as the attorney-legislators in the General Assembly must have read about the convictions and checked their own hole cards.)

The Supreme Court rides to the rescue today, reversing both convictions based on the absence of any evidence that the lawyers intended to obstruct or interrupt the administration of justice. Contempt is a specific-intent crime, and the court notes that both lawyers thought that what they were doing was perfectly normal and perfectly permissible.

But wait! There’s a cautionary note at the end, in which the Supreme Court warns against lawyers’ assuming too much. The last page and a half of the discussion section of the opinion warn lawyers about doing this kind of thing “in the absence of an established contrary policy by a particular trial court.” That is, if the judges of a particular court generally empower the prosecutor to agree upon continuances (as virtually always happened in Virginia Beach when I handled those cases), then you can do as you’ve always done. But if a given judge wants to make his own mind up on whether to continue the case or not, you must allow him to do that. That means that you show up on the return date, with your client in tow, even though you know that the officer will be in training in Kansas on the original return date. This will result in more than a few trips to court that the client thinks are unnecessary; but that’s the price of living in an orderly criminal-justice system these days.

Okay; that’s a nice set of guidelines. But in my experience, one of the most common reasons for a first continuance request by the defense is the unavailability of the defendant on the return date. (It might not be as common as the famous unavailable witness, Mr. Green; but it’s up there.) According to this opinion, a prosecutor and a defense lawyer cannot safely agree in advance on a continuance because, say, the defendant has a long-planned (and prepaid) trip that day, or has had to rush to the side of an ailing parent in another state. The way I read this opinion, the lawyers must ascertain in advance that a judge has granted a continuance before telling the client that it’s safe to go and be with Dad as the end of his days draws nigh. In essence, to be safe, the defendant must appear in court on the original date, to explain why he should be excused from being in court on the original date.

Does everyone see how thoroughly impractical this approach is? In the past, continuances were agreed to under long-standing courtesies of the bar, as prosecutors and defense lawyers, knowing they’d be dealing with each other on a regular basis, virtually always agreed to routine requests like this, as long as the privilege wasn’t abused. This final appendage to today’s opinion takes the human element, the professional courtesy of the bar, out of the practice of law, and forces attorneys into formulaic requests, just in order to ensure that they don’t get convicted of a crime. Lawyers should be entitled to treat each other as colleagues, and to extend professional courtesies in these circumstances. But for now, such lawyers do so at their peril.

The court addresses a tragic case involving a high-speed police pursuit in Brown v. Commonwealth. You can probably deduce most of the facts from just the introductory sentence above: Brown fled from the police on US 1 between Chesterfield County and Colonial Heights, driving at speeds of up to 110 mph. At one point in the chase, the police officer collided with an innocent third party’s vehicle, killing the driver of that car. The question here is whether Brown is guilty of involuntary manslaughter.

This case is an analysis of proximate causation. That issue is common to civil and criminal cases, so the court looks to both types of decision for guidance. It concludes that since Brown set into motion the police officer’s response, speeding away even as he knew the officer was pursuing him, he was a proximate cause of the death, so his conviction stands. Note the article I used: A proximate cause. Just as in civil cases, there can be more than one proximate cause of an event, and unless the officer’s actions constituted a superseding cause, then Brown can’t escape liability just by saying that his car never hit the decedent’s.

Brown also asked the court to import an element from the felony-murder rule (“that responsibility for an accidental death occurring during the commission of a felony will be placed on a defendant only if the death is inflicted by the defendant or by a third-party acting in furtherance of the defendant’s crime”), but the court declines that invitation because malice is not an element of involuntary manslaughter.

Following up on the Wright case above, we get another constructive-possession decision in Smallwood v. Commonwealth. This one involves possession of a firearm by a convicted felon. Smallwood was driving in Cumberland County one day when he encountered a roadblock where police were evidently checking licenses and registrations. He had a passenger in the car, and the passenger had a gun. The question here is whether Smallwood possessed the gun.

The gun was lying right there in plain sight, on the console between the driver’s and passenger’s seats. The passenger testified that she put it there because she had applied for, but failed to receive, a concealed-weapon permit after she was assaulted. At trial, the passenger testified that Smallwood had never touched the gun the entire six or seven hours that the couple had been in the car.

The test for constructive possession (which is all the prosecution needs to show in a case like this) is whether Smallwood (1) knew the gun was there, and knew what it was (I think they’ve got ‘im on this prong); and (2) it was “subject to his dominion and control.” It is perfectly feasible for the Commonwealth to show joint dominion and control in this kind of situation.

That clause (2) is where the real scrap is in this appeal, and in the end, Smallwood loses the fight. He suffers from the deference that the court gives to the trial courts findings of fact, and constructive possession is definitely a finding of fact. Because the gun was right beside his leg the whole time, the Supreme Court finds that the record supports that factual finding: “In an instant, Smallwood could have had actual, exclusive possession of the firearm and Smallwood’s access to the firearm was not restricted in any way.”

The devil within me prompts me to pose this (purely hypothetical, of course) counter-point to the court: From time to time, I drive in a car in which The Boss is in the front passenger seat. When we do that, she typically places her purse on the floor, right next to the console, where my access to it would not physically be “restricted in any way.” Is the court prepared to hold that I, as a mere husband, can ever have constructive possession of that purse? Of course, the answer is plainly no. No husband can ever possess his wife’s purse, either actually or constructively – at least, not without paying for the sin for a long, long time.

Let’s turn to a robbery case next. Williams v. Commonwealth involves an intriguing question about whether one can rob someone who isn’t there when the defendant takes the property.

Robbery, of course, requires the victim’s presence: “The taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Williams and two accomplices approached some teenaged boys who were skateboarding in Newport News. Bad Guy #1 deflected the victims’ attention by grabbing a camera and running off. One of the victims ran after the thief, but gave up the pursuit after 150 feet. When the victim returned, he found that Bad Guy #2 – that would be Williams – had taken his cell phone.

Two of the victims confronted Williams a few moments later; he was casually using the kid’s phone to make a call. When the owner approached, he slipped the phone into his pocket. The victim demanded it back, but Williams reached into his waistband and started to pull out a flat, black object, asking (apparently in an ominous manner), “You guys got a problem?” They sensibly did not have a problem (the prospect of weapons alters one’s priorities persuasively) and backed off. A few minutes later, Williams evidently gave the phone back to one of the teenagers, who returned it to the victim.

The key issue here is whether Williams is guilty of robbery, as opposed to larceny. He took the phone, of course, but the owner was 150 feet away when he did so. Can mere larceny “mature” into robbery?

It sure can; the Supreme Court so held in a 2004 case involving a shoplifting that turned into a robbery when the store manager intervened and the defendant pulled a gun. That doctrine sinks what was looking to be Williams’s best hope for a reversal. He also argued that there was no asportation of the phone, because he never took it away. But the asportation requirement in larceny and robbery crimes is minuscule; Williams satisfied that by taking the phone from the ledge where he found it and putting it in his pocket. The conviction is accordingly affirmed.

Every lawyer knows that the results of polygraph tests are inadmissible in evidence at trial. Many lawyers know that the rules of evidence are significantly relaxed in probation-violation hearings. Those two doctrines collide today in Turner v. Commonwealth.

After his conviction on child-pornography charges, Turner was required to complete a course of sex-offender treatment. His probation officer got permission from the court to use polygraphic examinations in that treatment.

According to the polygrapher, Turner flunked. Between that and Turner’s missing four of his 14 appointments, he discharged Turner from the program (that term makes it sound like he passed, but it’s actually a bad thing for Turner). That brought a bench warrant, and Turner was looking at serving out the suspended three years of his five-year sentence.

At the probation hearing, the court admitted the polygraph report into evidence over Turner’s objection; the report indicated deception. The judge decided that Turner was “a danger to children in the community” and that he was “not amenable to treatment.” Three years to serve; do not pass Go; do not collect $200.

The Court of Appeals refused Turner’s petition for appeal, but the Supreme Court granted a writ, and today it reverses. It notes that the relaxed standards for admission of evidence in probation hearings still require that the evidence be “demonstrably reliable.” Caselaw from both the CAV and the Supreme Court establish fairly clearly that polygraph evidence is inherently unreliable, at least in the jurists’ views. That makes its admission reversible error, so Turner should get a new sentencing hearing.

Except that the Commonwealth has one more trick up its sleeve – the old harmless-error argument. Turner had admitted to missing those four sessions, so even if you throw out the polygraph results, there’s still support in the record for the revocation of his probation.

Well, yes. But given the choices available to the trial judge, he had selected the most drastic one possible. The sentencing guidelines had recommended the re-imposition of probation, with no active incarceration, but the court went to the other extreme, and sentenced him to serve the full unserved term of imprisonment. The Supreme Court reasons that it cannot determine the extent to which the improper evidence affected the trial court’s ultra-harsh decision, so it remands for a new sentencing hearing.

The next case will occupy a fairly small niche in Virginia jurisprudence; it’s Baker v. Commonwealth. In this case as well, the trial court dropped the hammer on a defendant, sentencing him to a year in jail (that’s the statutory maximum) for the crime of trespassing. Here’s what happened:

Baker was walking along a street in Petersburg one day, no doubt earnestly focused on the important task of minding his own business, when a police car stopped near him and two officers started to get out. (The officers were investigating a report of shots fired in the area.) At that point, the cocaine that was allegedly in his pocket whispered to him, “Hey, Bud; we should get the hell out of here.” Baker agreed, so he took off running through the neighborhood, only to be tackled by one of the officers in someone’s back yard.

After making the arrest, both officers noticed the signs on the fenced-in yard where they had nabbed poor Baker – “No Trespassing.” Why, here’s a second, separate offense with which they can charge him, and they did.

The cocaine charge was eventually dismissed, but the trespassing charge stuck, despite Baker’s contention that the prosecution hadn’t established an essential element of the offense. That element, you may be surprised to learn, is whether the “no Trespassing” signs had been placed by someone with authority to do so.

At this point, you’re probably thinking, “Aw, c’mon; is that the best you’ve got?” Nobody puts up a “No Trespassing” sign on somebody else’s yard, without authority; indeed, there’s a statute making it a crime to do that. The trial court accordingly presumed that the signs were placed by a person with authority, and held that the burden then shifted to Baker to show that he wasn’t actually barred by the sign. Upon being arrested, Baker had told the gendarmes that the house belonged to his cousin, so he had a right to be there. But Baker offered no evidence at trial, so the court convicted him and slapped him with the maximum penalty allowed for misdemeanors. The Court of Appeals affirmed.

In the Supreme Court, the battle over authority is once again joined, and here, Baker gets his long-postponed victory. The court rules that since the prosecution has the burden of proving every element of a criminal offense beyond a reasonable doubt, that proof must include some evidence that the sign was indeed posted by a person with authority to do so. The result of this assuredly will be that future prosecutions for trespassing will have to include some testimony from a person with authority over the property – the owner, or maybe a lessee – saying that the sign was posted with authority, and that the defendant wasn’t given a specific right to ignore it.

I’m going to change the way I get certified copies of orders based on our next discussion, relating to Waller v. Commonwealth. This is a prosecution for possession of a firearm by a person who had previously been convicted of a violent felony. The prosecutor proved the priors by introducing certified copies of the conviction orders. The copies apparently looked very much like what I’m used to seeing – they don’t contain the judge’s signature, but the Clerk has stamped, “A Copy, Teste” on it and signed it. That certifies that it’s a true copy of a record of the court.

Around here (and I recognize that the practice varies across the Commonwealth), that’s the primary way we get certified copies. When a lawyer tenders an order for entry, she encloses the original and as many copies as she wants certified. The judge signs the original, which goes into the file; the Clerk then certifies the furnished copies and returns them to the lawyer. The certified copies don’t have the judge’s signature, but the Clerk’s signature suffices to establish that the order was, indeed, entered.

Okay; whoa. At least in the context of criminal matters, that approach won’t work anymore, as the Supreme Court rules that the absence of a judge’s signature means that the copy of the order hasn’t been duly certified and authenticated, so it isn’t admissible in evidence. The direct effect of this ruling is that Waller’s conviction is overturned, and he goes back to be re-sentenced on a lesser charge. The indirect result is that henceforth, you need to start getting copies of orders that have been burned after the judge signs the original.

One underpinning of today’s ruling is that the absence of a judge’s signature means that this element of the offense hasn’t been proved beyond a reasonable doubt, so there is at least the possibility that this ruling will be limited to criminal cases. The way I read the opinion, I doubt that it will be so limited; but in any event, why run the risk? Get your certified copies with the judge’s signature on them, so you won’t have to worry about a needed proof element.

Dowdy v. Commonwealth is primarily about the access that an indigent defendant ought to have to private investigative services. Charged with murder, he asked for and got court-appointed counsel. But since the public defender had a conflict, his lawyer was from the court-appointed list. He sought appointment of an investigator, mostly to prove an alibi defense.

As I have written before, the word alibi is Latin for “elsewhere.” The sole purpose of such a defense is to show that the defendant was somewhere else when the crime was being committed, thus demonstrating that he couldn’t have been the perpetrator. The major problem with this defense, from Dowdy’s standpoint, was that he acknowledged that he was with the decedent around the date of her death. The trial court thus correctly refused to appoint him an investigator to hunt up alibi witnesses, since they’d only be contradicting his own version of the events.

There’s an important aspect of the Supreme Court’s legal analysis of this issue that merits mention here. The US Supreme Court in 1985 held that in order to establish the need for court-appointed expert help (which would include a professional investigator), an indigent defendant must address three factors. Those are the private interest; the public interest; and the “probable value” of the expert’s assistance. The goal is to make things more-or-less fair for the defendant, when the resources of the prosecution are vastly superior to his own.

Eleven years later, the Supreme Court of Virginia handed down an opinion in which it quotes that 1985 ruling, and added that the defendant had to show “that he will be prejudiced by the lack of expert assistance.” In this appeal, Dowdy contended that that extra language imposed an additional burden upon him, to prove something that the 1985 decision had not called for.

The court notes today that its “prejudice” language “is nothing more than another way of asking whether the denial of expert assistance would result in a fundamentally unfair trial, thereby bringing into question the accuracy of the criminal proceeding.” That is, the prejudice language merely restates the obligation of the court to balance the public and private interests to decide whether the appointment would be meaningful to the case. This ruling makes eminent sense to me; Dowdy didn’t exactly make out a compelling case for the value of the testimony in the trial.

There was one remarkable feature about this case that I think I’ve never seen before. The court had granted Dowdy an appeal on ten assignments of error. That’s a lot, but in a criminal case it’s often perfectly appropriate for the attorneys to raise as many assignment of error as they think they can support with plausible arguments. The remarkable thing is that when he filed his brief on the merits, he only listed six of those. I have never heard of an appellant who gets a multi-assignment writ and then decides to jettison several of his potentially-winning arguments. Of course, those assignments are waived, although the court does consider some of the issues, which were subsumed in another assignment.

When the defendant in a criminal case raises an insanity defense, the statutes prescribe procedures for mental examinations. Those procedures are at the heart of Grattan v. Commonwealth, involving murder, attempted capital murder, aggravated malicious wounding, and eight companion firearms counts. Grattan, quite obviously a seriously-disturbed individual, emptied a clip from an AK-47 into his neighbors’ car as they passed by his house, killing the wife and seriously wounding the husband. He engaged in a 20-hour standoff with police before being taken into custody. His only explanation for the crimes was that the neighbors had been bombarding his house with gamma rays.

His lawyers understandable interposed an insanity defense, and the court appointed two mental-health experts to assist him. It simultaneously required him to cooperate with the prosecution’s experts, and informed him that if he failed to cooperate with the Commonwealth’s experts, his own expert testimony could be barred at trial.

Grattan was, in the view of the Commonwealth, less than fully-cooperative with the prosecution experts, refusing to meet with them on several occasions. He also refused to meet with his own experts on a few occasions, but his cooperation with them was noticeably better than it was with the prosecution’s witnesses. The judge warned him again two weeks later, but that didn’t seem to help. Ultimately, the court elected to bar the defense experts from testifying at trial.

The threshold issue was whether Grattan was competent to stand trial. After listening to both sides’ experts fully (the exclusion order applied only to the trial itself, not to the competency hearing), the court ruled that Grattan was competent. Under Virginia law, a finding like that is one of fact, so on appeal, the prevailing party below (the Commonwealth) has a formidable advantage. As with any other fact determination, the appellate court won’t second-guess the trial court’s credibility and fact determinations. Today, that standard of review compels affirmance of the competency ruling.

The full nature of the dispute is much too long to recreate here – the facts-and- proceedings section of the opinion is 16 pages long – but the court finds today that the trial court was entitled to believe testimony that Grattan was faking several bizarre behaviors while in jail, solely in order to bolster his insanity defense. Any good appellate lawyer is going to tell you that the appellant almost certainly isn’t going to prevail on an issue like that.

Once it affirms the finding of competence, the court turns to the question of whether the trial court abused its discretion in striking the defense experts as a non-cooperation sanction. While the court had the option of imposing a lesser remedy – informing the jury of the defendant’s refusal to cooperate – the court finds today that this didn’t amount to an abuse of discretion. The convictions are thus affirmed.

Sexually-violent predators
Whenever opinion day includes a case in this field, it brings to mind the extraordinary scrutiny that these cases require. The concept itself runs counter to much of our thinking about crime and punishment – holding a person in custody (albeit civilly, for treatment, instead of criminally, for punishment) after the time by which he is supposed to have paid his debt to society. It’s a form of prior restraint, taking someone off the streets because we think he will commit a crime in the future. We don’t do that with potential murderers and arsonists, a libertarian skeptic might point out.

As a result of this, the Supreme Court concludes more often than not (based on my wholly-unscientific recall, not on a formal survey of the decisions) in the published opinions that commitment is inappropriate. Today’s decision in Commonwealth v. Squire is no different; the trial court declined to find that Squire was a SVP, and the Supreme Court affirms that decision.

The only testimony at trial came from the Commonwealth’s two experts, both of whom opined that Squire was likely to commit sexually-violent crimes. He had been convicted of rape in 1994 and was in prison until 1999 when he was paroled. He was reincarcerated twice for violating the terms of his probation, once for assault and battery and once for breaking and entering. But in the whole time he was out of prison (about six years in all), he never committed a sexual offense. (A careful critic would note that all we can say for sure is that he was never convicted of such an offense in that time, and he’d be right. But from the standpoint of the circuit court, he had been a good boy — more or less.)

The trial court found that Squire had a mental abnormality, but refused to find that he was sufficiently likely to commit sexual offenses so as to justify his continued commitment. The Supreme Court determines that the trial court had a legitimate basis for so deciding – none other than Squire’s history, after his parole, of avoiding sexual crimes. That can count for more, in the trial court’s calculus, than scientific predictions of his percentage-likelihood of sexually-predatory conduct.

The court also cleans up a bit of dicta from a previous case. Today it specifically rules that the trial judge’s specific finding, that Squire had a mental abnormality or a personality disorder, isn’t enough by itself to trigger commitment. The court rules that the statute speaks in the conjunctive – requiring such an abnormality or disorder, and a likelihood of recidivism – before commitment may be ordered. That ruling makes it just a bit harder still for trial courts in the future to find commitment appropriate.

Habeas corpus
There are no fewer than three habeas opinions today, a real bounty for practitioners in that field. The first case is Williams v. Warden, a case brought in the first instance in the Supreme Court under the court’s original jurisdiction. Williams got a whole lot of years to serve based on a pretty thin articulable suspicion for a traffic stop, so there’s quite a bit at stake here.

A police officer driving on I-95 saw an SUV one night that was being operated with the interior dome light on. That enabled the passenger in the SUV to see what he was doing, but it also enabled the officer to see the passenger. The passenger, our hero Williams, was rolling a cigarette. But the manner in which he was doing so aroused the officer’s suspicion; he had family who worked on tobacco farms, and they all rolled their cigarettes in a very different manner. This, in contrast, was exactly how the officer had seen people roll what I will euphemistically describe as “funny cigarettes.”

The officer stopped the vehicle and when he approached it, the familiar aroma of a funny cigarette greeted him. He asked Williams to step out, and as he did so, a couple of packets fell from Williams’s pants onto the floorboard. They looked to the officer like “funny tobacco,” so he placed Williams under arrest and searched Williams and the vehicle.

What a payoff! The officer found wads of cash, plus cocaine, heroin, and a .357. All that stuff generated 55 years to serve for Williams, who hadn’t been doing anything worse than rolling a smoke.

His lawyer appealed and pressed two issues. The first was his standing as a passenger to challenge the traffic stop, and the second was whether the stop was valid or not. The CAV granted a writ on the first issue but not the second. Undaunted, the lawyer headed upstairs, appealing onward to the Supreme Court. But while he argued both issues upstairs, he somehow assigned error only to the first issue. The justices accordingly refused to consider the second issue.

And that, my dear readers, brings us to the realm of habeas corpus. Williams asserted that his appellate lawyer was ineffective (oh, how could he say such a thing about an appellate lawyer?) in failing to preserve the second issue for review. Consistent with Strickland v. Washington and its progeny, the court today considers first whether the omission made a difference – no reason to decide whether counsel was deficient or not if it really didn’t matter – and determines that it did not. The court finds that the officer had plenty of articulable suspicion to make the stop, so the habeas petition is denied.

If you practice criminal law, you may have paused a moment back there, with a dim recollection of a case that says that mere possession of a hand-rolled cigarette isn’t enough to establish probable cause. (You’re right; it’s Buhrman v. Commonwealth, from just last year.) How do you square these two incongruous-seeming holdings? It’s the difference between probable cause (to arrest) and the lower standard of articulable suspicion (to investigate further). The court finds that the totality of the circumstances was enough to justify the officer’s poking around a bit to see what was going on. And once he got to the car and inhaled the bouquet, probable cause fell right into place.

It isn’t often that the Supreme Court formally announces the reversal of a long-established doctrine, but that happens today in Carroll v. Johnson, Director. Carroll was already in custody in New Jersey when a Virginia court charged him with separate offenses occurring here. Under the Interstate Agreement on Detainers, the New Jersey officials shipped him off to Stafford County, where he faced trial for, and was convicted of, . . . well, something or other; today’s opinion never does tell us what his Stafford County sins were.

Carroll was held here in Virginia for 288 days while awaiting trial and sentencing; at the end of that span, Virginia officials handed him back to their New Jersey brethren to resume serving his time up there. The Virginia sentencing order specifically gave him credit for “time spent in confinement while awaiting trial pursuant to Code §53.1-187.” It also provided that his sentences “shall run consecutively with all other sentences.”

Carroll did his time up north, but he never got to breathe the sweet perfume of freedom; he was transferred to the Virginia prison system as soon as his New Jersey sentence was up. He then claimed credit for the 288 days against his 13-year sentence. (That may not sound like much to you, but I imagine that serving 288 minutes longer than you have to is quite bad enough.) Prison officials declined to adjust his sentence, since he had essentially already been given credit in New Jersey for those 288 days (New Jersey counted those days as being served as part of his sentence in that state). The circuit court declined to overrule the prison officials, for two reasons. The first was one of standing.

It’s been the law in Virginia since 1948 that a prisoner can’t file a habeas petition if the result of the grant of a writ would not be his immediate release. Carroll wasn’t asking to be let go; all he wanted was for his time to be calculated the way he figured it should be calculated. Accordingly, applying this rule, the trial court held that it didn’t have jurisdiction over the habeas petition. The court issued an alternative ruling (this was one smart judge, who knows how to avoid the dreadful phrase, “reversed and remanded”), finding that in the event he did have jurisdiction, he would rule that Carroll could not “double-dip” and get credit in two different states for the same 288 days.

The Supreme Court reverses the first ruling, finding that changes in the statutes and in US Supreme Court caselaw (upon which the immediate-release rule was based) rendered the doctrine anachronistic. The court overrules its 1948 decision and holds that henceforth in Virginia, a prisoner can file a habeas petition to challenge the length of his detention in addition to the fact of it. The opinion is careful to exclude from this new rule matters that “tangentially affect” confinement, such as classification issues or parole board decisions. The court isn’t about to saddle itself with review of day-to-day administrative decisions like that.

The court thus goes on to reach the second issue, and it agrees with the trial court that Carroll can only get one credit for the 288 days, and he already got that in New Jersey. The ultimate ruling is thus affirmed. It occurred to me that the opinion might have been a little softer on the trial judge than it was, since it specifically ruled that he “erred” in his jurisdictional holding. Look, all the poor guy did was follow and apply clear caselaw from the Supreme Court, not knowing for sure that the appellate court would shift course like this. But trial judges have notoriously-thick skin when it comes to things like this, so I suppose this judge can live with the heartache of a sort-of reversal.

The final habeas case of the day is Hash v. Director, Dep’t of Corr’s. Hash was convicted of capital murder and sentenced to life in prison. In his habeas petition, he asserted that his trial counsel were ineffective because they didn’t get some letters from one of the witnesses against him, and then use those letters to impeach the witness at trial. The witness was a jailhouse snitch who testified that Hash confessed to the murder while in lockup.

Said snitch was in jail after being convicted of a federal crime, and he eagerly sought some adjustment in his sentence because of his assistance in securing Hash’s ultimate conviction. He wrote to his US District Judge five times, asking for help in getting his lawyer to get the US Attorney to file a motion under former Fed.R.Crim.P. 35(b) for a sentence modification. (Under that rule, only the prosecutor could make such a motion; the defense couldn’t do it.) The defense lawyers had enough information that they should have been able to get those letters, but they never did so; the director admitted in this habeas proceeding that that failure fell below the applicable standard for a defense lawyer.

Maybe he shouldn’t have. The court finds today that the addition of those letters would not have made a material difference in the trial, because the snitch readily admitted on cross that he had done just that, in the hopes of getting some sentencing relief from the feds. Accordingly, the letters were merely cumulative. The court thus finds that the second prong of the Strickland v. Washington analysis falls decisively against Hash, so the denial of the writ is affirmed. While this opinion doesn’t directly exonerate the defense lawyers from the sting of a finding that their actions fell below the standard of care, the net effect of the ruling today is that they really didn’t do anything materially wrong.

Judicial discipline
This is a rare category for one of my case analyses. In the nearly five years that I have been publishing analysis of these opinions, covering 30 sessions of the court, this is just the fourth judicial-discipline case I have had to analyze. This one, JIRC v. Taylor, is no more pleasant to read than were the first two.

Like the habeas case of Williams v. Warden above, this is an original-jurisdiction proceeding, and is not truly an appeal. Judicial-discipline complaints, as I understand them, follow a three-step process. First, someone files a complaint against a judge. The Commission notifies the judge, and the second step (assuming the matter is not concluded informally, as is usually the case in plainly-nonmeritorious complaints filed by litigants who are merely angry because they lost) is a hearing before the commission. If the commission determines after that hearing that the allegations are founded and the charges warrant it, the third step is the filing of a complaint in the Supreme Court, which hears the matter de novo and receives evidence in an in-court hearing. The rules for these proceedings are found in the Constitution and in the statutes.

As I see it, the commission’s role is analogous to that of a grand jury or of a district-court judge considering a preliminary hearing in a criminal case. The commission cannot, as I understand it, punish the judge in any way; all it can do is decide whether or not to make a formal complaint to the justices, who alone have the power to impose discipline.

This case involves a juvenile-court judge in Virginia Beach who adjudicated a teen as not-innocent in a criminal matter. She ordered a background study on the boy for sentencing purposes, and directed that he be held in custody pending receipt of the report.

The boy’s lawyer wanted to appeal, and told the judge so; she responded by saying that she believed that the finding and the presentence commitment were not appealable, since she hadn’t sentenced the boy yet. She even inserted that phrase (“interlocutory, non-appealable”) in her commitment order. The lawyer wanted to appeal anyway, and he appeared soon thereafter at the Clerk’s Office with a notice of appeal, seeking at least a bond hearing before a circuit court judge.

The deputy clerk did the sensible thing – she went to the judge and asked what to do. The judge reaffirmed her previous statement that the order could not be appealed, so the clerk went back to the lawyer and handed him back his notice of appeal. Within a few days, the lawyer obtained a writ of mandamus from the circuit court, directing the JDR Clerk to process the appeal; a bond order was entered that same day, and the boy was released after being held in custody for nine days.

The primary issue in this proceeding is whether the judge violated the Canons of Judicial Conduct by effectively thwarting review of her decision. As you can imagine, any suggestion that a judge is preventing appellate review of one of her decisions is going to be a hot-button issue for an appellate lawyer like me. It will be just as important to the justices, who make their living by performing appellate reviews of just such decisions.

The court today takes the rare step of censuring the judge, finding that “her actions rose to a level beyond a mistake of law when she affirmatively blocked [the boy’s] attempted appeal to the circuit court.” There’s a lot of strong language in the majority opinion. For example, the court repeatedly refers to the judge’s explanations as “implausible” and “disingenuous.” Those words, particularly the second one, have been overused by lawyers who want to say that someone is lying, but don’t want to use the L-word openly; the court hesitates not in using the euphemisms liberally today. The opinion is a legal bludgeoning, clad only in a gossamer-thin veneer of legal propriety, of a sitting judge who claims in her defense that, at worst, her sin was in misinterpreting a statute.

Two justices agree with her: Justice Koontz authors a dissenting opinion, joined by Justice Goodwyn. They argue that the evidence in the case points not to a sinister attempt to obstruct an appeal, but to the judge’s honest interpretation of an appealability issue. They note that the judge discussed the matter with her colleagues on the JDR bench, and by and large, they agreed with her interpretation. This case, they contend, is vastly different from the previous instances where the court has imposed censure.

There are a couple of rulings in today’s decision that surprise and trouble me, from a procedural standpoint. Both involve the contemporaneous-objection rule, and in both instances, the court finds that the judge has waived an objection by not raising it in a timely fashion. One of the rulings is the commission’s consideration of two prior contacts (essentially, prior JIRC complaints) between the judge and the commission. Both of those were determined to be not well-founded, so nothing ever came of them. Despite a statutory requirement that such contacts must be kept confidential, the commission considered them in deciding to press for censure in this instance. The second relates to whether a member of the commission should have recused himself from this proceeding, since he was a complainant in one of those two prior contacts.

The court today rules that both of these objections are waived because they weren’t raised before the commission, citing Rule 5:25. But here’s the relevant part of the text of that rule: “Error will not be sustained to any ruling of the trial court or the commission before which the case was initially tried unless the objection was stated with reasonable certainty at the time of the ruling . . .”

In my view, this waiver ruling by the court is fatally-flawed, because Rule 5:25, by its plain terms, simply cannot apply to original-jurisdiction proceedings like this one. The court isn’t being asked to “sustain error” to a ruling made below. Remember that the commission can only decide whether or not to file a complaint against the judge; it cannot “try the case” or impose any discipline. The court in which this case was “initially tried” (in the words of Rule 5:25) is the Supreme Court of Virginia. See Va. Const. Art. VI, §10. The judge emphatically raised the issue when and where the case was “initially tried.” This is, in my view a fundamental misapplication of the rule to fit circumstances where it clearly doesn’t apply.

In the analogous case I described above, that of a preliminary hearing in a criminal case, let’s suppose that the district court admitted clearly-inadmissible evidence, and that the defendant didn’t object at the time. When the case is subsequently tried in circuit court, would anyone seriously contend that the defense was powerless to object, because the evidence had been admitted at a point when jeopardy had not attached? Of course not; but that’s exactly what this ruling holds: That the judge had to raise an issue before the merits of the case were tried, before a body that was purely investigatory in its function.

The majority opinion essentially defuses the real effect of this ruling by concluding that, even without the prior contacts, censure would be appropriate. Especially in that circumstance, I’m very surprised to see the court push the envelope with a waiver ruling in a situation like this.