WHAT DO APPELLATE COURTS THINK OF “GOTCHA” DEFENSES?

[Posted February 13, 2007] Today, the Court of Appeals hands down a ruling in a criminal case, Bolden v. Commonwealth , that illustrates the way appellate courts regard claims of prejudice that might seem a tad, well, . . . manufactured.

Bolden was charged with several counts of drug and weapons offenses. His trial was set for October 3, 2005, but it was continued that day, over Bolden’s objection. The Commonwealth wanted to introduce a drug analysis certificate, but had filed the certificate just five days before the trial, instead of the seven days mandated by Code § 19.2-187 . You can see there’s a problem coming here.

On the trial date, the Commonwealth moved for a continuance, citing the fact that a police officer was unable to attend. Bolden complained that the officer was absent for personal reasons, not for any official duties. No doubt he suspected (and perhaps even argued to the trial court) that the officer’s absence was an excuse concocted in order to get the Commonwealth a continuance.

Well, if that’s what it really was, it worked; the trial court continued the case to October 19, at which point the officer was present; the certificate was admitted; and Bolden got convicted. He appealed, and got a writ.

Today, the court analyzes Bolden’s objection to the continuance using the customary two-pronged test for such review. A reviewing court must find an abuse of discretion and prejudice to the party opposing the continuance, in order to reverse. Here, the court goes straight to factor #2, and finds no prejudice. In doing so, it applies the same time-saving device used in other contexts, such as habeas claims of ineffective assistance under Strickland v. Washington. (For such habeas petitions, the court must find that the attorney’s conduct of the criminal trial fell below an objectively reasonable standard, and that the outcome of the case would likely have been different otherwise. Courts routinely jump right to the second phase of that, to save time and no doubt to spare attorneys a finding of ineffective assistance.  For an example, see Yarbrough v. Warden .)

Bolden argued that he was prejudiced because if the continuance had not been granted, the certificate would not have been admissible. Disposing of this, the court notes today that this case is different from an earlier one, upon which Bolden relied, in that the trial had not yet begun for Bolden when the continuance was granted. (In the earlier case, the trial started; the parties evidently discovered the failure to file the certificate timely; and the court granted a mid-trial continuance.) Since jeopardy did not attach to Bolden on the initial trial date, there was no bar to the trial court’s granting the continuance.

The nature of Bolden’s prejudice claim is what leads to our sermon today. This is the second case in very recent memory in which an appellate court has rejected a litigant’s claim that his prejudice is that he didn’t get a cheap victory by virtue of what I’ll call a “gotcha” defense. Today, the court concludes its discussion of this issue by noting that, “[f]ar from prejudicing Bolden, the trial court’s management of this case amply protected Bolden’s right to a pretrial disclosure under Code §19.2-187 . . ..” That is, you can’t claim prejudice because the judge took steps to protect you from prejudice.

The Supreme Court reached a similar ruling last year, in Bitar v. Rahman, a medical malpractice case in which the plaintiff’s standard of care expert testified without using the magic words, “to a reasonable degree of medical probability.” The defendant doctor’s lawyers noticed this, and decided to spring a trap by waiting until the witness was gone (gone from the Commonwealth, in fact) before moving to strike. The Supreme Court ruled that an objection to the absence of the magic words must be made while the witness is on the stand, so that it can be corrected.

The doctor’s appellate attorneys evidently had argued that a rule like that would prejudice the doctor, because it would alert the plaintiff to the problem and enable him to correct it on the spot, thereby preventing a “gotcha” victory for the defense. In a footnote, the court gives this contention a backhanded, “This argument has no merit.” Reading between the lines, one can readily discern something along the lines of, “Take this cockamamie line somewhere else, counsel, because we’re not giving you a cheap win.”

In both of these cases, appellate courts express disdain for those who claim to be prejudiced simply because they are deprived of an easy technical victory. In a sense, this reminds me of the “offsides trap” in soccer, when defenders rush forward to take advantage of the rule against an attacker’s cherry-picking. (If you’re not a soccer fan, I apologize for the obscure reference.) Presumably, those defenders are pointing to the patent “unfairness” of allowing the opposing striker to slip behind them, when in fact, it is the defenders who are bringing the whole situation about. In this case, what works on a soccer field doesn’t fly in an appellate court. There still will be occasions in which appellate courts make what litigants might consider to be hyper-technical rulings. But feigning prejudice will never gain juridical favor, at least not in these courts.