 |
ANALYSIS OF JULY 27, 2010 CAV OPINIONS
[Posted July 27, 2010] Criminal appellants went to the appellate well three times today and came up empty each time.
Criminal law
All criminal-law practitioners know about the US Supreme Court’s landmark 2004 decision in Crawford v. Washington, which swept away numerous hearsay exceptions in criminal cases by virtue of the Confrontation Clause. Today the Court of Appeals finds that one of those traditional exceptions survives even Crawford; the case is Satterwhite v. Commonwealth, and involves a dying declaration in a murder prosecution.
The victim clearly identified Satterwhite as his assailant in the hour after he was shot four times. Despite his grievous wounds, he lasted another six weeks before expiring. The prosecution sought to introduce the identification at the trial, and the trial court overruled Satterwhite’s motion to suppress. Today’s opinion affirming the murder conviction contains several interesting rulings, some of which might be surprising to you. Behold:
First, the law applicable to dying declarations requires that the victim sense his impending death, but it doesn’t require that he say something like, “I know I’m going to that great ball field in the sky.” That fact can be proved by other evidence, specifically including the seriousness of his wounds. This victim had been shot thrice in the chest and once in the head, so it was obvious that he was in serious medical trouble.
Second, the fact that this victim survived for several weeks doesn’t vitiate the status of the statement as a dying declaration. Caselaw establishes that the length of the interval between statement and death “is an immaterial matter,” so long as the victim perceived that he was on his way out. (This makes perfect sense when you think about it.)
Third, several post-Crawford cases (and even Crawford itself) recognize that some exceptions to the right of confrontation remain, and dying declarations are among those. (The Crawford opinion even refers to such declarations, calling the exception “sui generis.”)
The next case, Hunter v. Commonwealth, presents an intriguing argument by a probationer who just couldn’t bring himself to behave once he got back on the streets. Convicted in 2002 of grand larceny, Hunter got a four-year sentence, with all but 22 months suspended conditioned upon his completing a term of three years of supervised probation. He was released early the next year (evidently had some credit for time served), but 14 months after that, the probation officer advised the trial court that he had been unable to continue behaving. The court issued a show-cause order.
It was several years before the authorities found him in a likely spot – the Fairfax County Jail. They served him with the show-cause order. But those authorities, it seems, had a problem. A statute, in effect on the date of the conviction, required that the defendant be brought before the court on any probation-revocation proceedings within one year after the termination date of his probation. That date was long gone by the time the order was actually served on Hunter, so it looks like he’s going to skate on this one.
As my introductory paragraph has already blabbed, Hunter loses the battle and the war. Today, the CAV panel affirms the reimposition of the suspended sentence. As for that statute? The court notes that it was amended in 2002, eliminating the one-year rule; as it reads now, the only thing that has to happen within a year is that the court must issue the rule within that time, and that definitely happened here. Hunter contended that he had a right to be processed under the laws in effect at the time of his conviction. But the CAV notes today that this was a procedural statute that dealt with the regulation of his probation. The legislature always has the right to change procedural rules, upon which no one can obtain a vested right. And at the time his probationary period began, the statue had already been changed.
The defendant in Armstead v. Commonwealth was pulled over by a police officer at a singularly unpropitious time – while his license was suspended, and there was a stash of marijuana and cocaine in the car. In such an emergency, he came up with a clever ruse to avoid being arrested and prosecuted: He lied to the officer about his identity.
Well, in retrospect, perhaps this isn’t the first time in the history of law enforcement in the Western Hemisphere that someone has tried this routine. The officer smelled a rat, and when the driver’s name came up empty in the DMV registry, the driver explained that he was licensed in the District of Columbia, not in Virginia. He assured the officer that he had a valid license up there.
That nuance might have worked a few decades ago, but these cops have fancy computers in their cars nowadays. You can lie to them about being licensed anywhere this side of Zimbabwe, and they’ll see through it in a matter of minutes. Since the officer had no way to know in what name he should issue the traffic summons (and thus no assurance that he’d have a breathing defendant at trial), he arrested the driver. A subsequent search of the vehicle turned up the stashes.
Convicted of the two drug-possession charges, plus driving on a suspended OL (Armstead was in the DMV database after all, with a suspended license) and lying to an officer, the driver appealed. The Court of Appeals affirms the trial court’s finding that the search-incident was lawful, despite the issuance (after the date of Armstead’s conviction) of Arizona v. Gant by the US Supreme Court. In Gant, the Big Supremes had limited the availability of vehicular searches to specific situations. The Commonwealth argued that Armstead hadn’t made a Gant argument in the trial court. (Really, now; how could he? The doctrine hadn’t even been born as of the time Armstead stood before the trial judge.)
That argument would actually be fatal to Armstead’s cause, as sniper John Muhammad found out in 2005 when he tried to append a similar after-born argument to his appeal, based on a Crawford violation. Too late, the Supreme Court noted, essentially telling litigants that they have to anticipate future changes in the law, or else lose the issue to a waiver ruling. The CAV is more charitable to Armstead here, assuming without deciding that the Gant argument was timely raised, but then finding that the new doctrine didn’t bar this search.
In a subsequent section of today’s opinion, the court rejects a sufficiency challenge, but the Gant-based ruling is the reason why this one’s published.
FOURTH ISSUES MAJOR PRIVACY RULING
[Posted July 26, 2010] The Fourth Circuit today hands down a significant decision in a civil suit challenging a Virginia statute that's designed to limit the republication of personal information. The case is Ostergren v. Cuccinelli.
Back when I was a baby lawyer, I performed hundreds of title examinations on property, preparatory to real estate closings. Some of them (usually the suburban rectangles) were uncomplicated, while others were more complex. In doing that, I spent hundreds, maybe thousands, of hours in local record rooms, examining deeds and mortgages (something today’s lawyers virtually never do). Eventually, the mortgage industry started putting borrowers’ Social Security Numbers on the deeds of trust, presumably to assist the lender in matching up the deeds with the correct borrowers (especially those with common surnames).
A lady in Hanover County with the uncommon surname of Ostergren decided that she didn’t like that practice, especially when court clerks started posting land records on the Internet in the 90’s. She’s a privacy-protection advocate (something I heartily endorse), and evidently her initial efforts to secure an end to the practice met with limited success; the legislature enacted laws that stopped the process of posting private materials online, but did nothing about the several years’ worth of such documents that were already there. It later permitted, but did not require, court clerks to redact SSN’s, but lacking a funding source, such an effort was sporadic.
Ostergren accordingly decided she needed a more effective tool to get her point across. The tool she selected was to start her own website, on which she posted documents containing elected officials’ own deeds, complete with their SSN’s. This was a form of taking the war to the enemy’s turf, a tried and true method ever since the days of Sun Tzu.
Instead of regarding this tactic as helpful, the Commonwealth set out to outlaw it. It eliminated a statutory exemption for disclosing publicly-available SSN’s, and indicated that it would prosecute Ostergren if she continued her efforts. Instead of backing off, Ostergren headed to federal court, seeking a declaration that the Virginia statute was unconstitutional as applied to her.
The district court ruled in favor of Ostergren, finding that the statute was indeed unconstitutional since it restricted her efforts to lobby for political change. It permanently enjoined enforcement of the statute against Ostergren to the extent that it prohibited her from posting documents containing SSN’s of Virginia legislators, executive officers, or court clerks. Virginia appealed, contending that it shouldn't have lost; Ostergren cross-appealed, complaining that her victory shouldn’t have been so narrow. She sought the right to post all records, of any person, until the right person – presumably one with significant political connections – squealed in pain.
The Fourth Circuit today affirms in part, reverses in part, and remands the case for further proceedings. While an outcome like that may sound like something of a tie, in reality Ostergren gets a sweeping victory today. The Fourth Circuit finds the Virginia statute to be unconstitutional as applied to Ostergren’s website, since it chills a form of political speech. Ostergren had the right to “criticize the government without fear,” just as we all do, and the court finds that the Virginia statute was not narrowly tailored to address a compelling state interest. And the fact that she used public records bolsters the contention that she had the right to engage in this form of political advocacy – albeit in a manner that some observers might find problematic. Problematic or not, it works, and you can’t curtail a particular kind of speech simply because it’s especially effective.
On the cross-appeal, the court finds that the district court’s decision to limit its injunction to the publication of Virginia public officials was too narrow. While it would make sense for this sort of effort to initially target the public officials themselves, that limitation isn’t essential to the remedy. Indeed, elsewhere (in an Arkansas county) Ostergren had no success in her efforts to induce change when she limited her publications to the affected public officials; only when she started “exposing” prominent private citizens did the government decide to act. The court accordingly remands for the district court to refine (and presumably expand) its injunction order to provide Ostergren with an even greater victory.
Judge Davis files a short concurrence in which he essentially chides the Commonwealth for seeking to punish someone for republishing material that the Commonwealth itself originally published. He concludes, memorably, “when a state seeks to punish a speaker for republishing state-published information, the state should be expected, in the words of a contemporary colloquialism, not simply to talk the talk, but to walk the walk, as well.”
While it’s ironic that Ostergren was fighting here for the right to do the very thing that she thought was so very improper, you must admit that her tactics worked. At first blush, you might find it a bit disquieting that someone just won the right to post private, sensitive information on a publicly available website. But given her agenda and the apparent sincerity of her beliefs, the whole matter takes on a different appearance.
SUPREME COURT ORDERS TARGET TWO ATTORNEYS
[Posted July 21, 2010] Last week, the Supreme Court handed down two unpublished orders relating to lawyers. In one, the court decided an appeal argued in June, Brown v. Virginia State Bar, affirming the ruling of a three-judge panel that suspended a lawyer’s license for two concurrent twelve-month terms. The court found that the Bar proved misconduct involving dishonesty by the lawyer during the course of a circuit-court trial. It also concluded that the panel properly imposed the suspensions, both as a punishment and as a deterrent.
The other order came sua sponte in the course of an appeal of a sexually-violent-predator decision. In Smith v. Commonwealth, Smith’s lawyer filed a transcript (as was appropriate under the rules) in the Winchester trial court, and that transcript was duly forwarded to the Clerk’s Office in Richmond. Unfortunately for the lawyer, the transcript contained a colloquy that he probably wished he’d redacted. Describing a prior appeal in the case, the lawyer advised the judge that the Supreme Court had declined to consider one appellate issue, adding, “They didn’t have the guts to handle it.”
Ouch. When someone at Ninth and Franklin stumbled upon that bon mot, a show cause issued, directing the lawyer to come to Richmond during the next session to explain himself.
I don’t represent that lawyer, and I don’t give out legal advice on this website (other than tongue-in-cheek advice, such as telling arrestees, “You have the right to remain silent. Use it!”). If I did represent him, or if I did give out legal advice here, I think I might suggest the following:
- Hire a lawyer. The order permits him to have counsel, and that would be a very good idea.
- Be prepared to deal with a predecessor case, Taboada v. Daly Seven, which is the worst case of contempt-of-Supreme-Court in recent memory. Note that where the lawyer in Taboada filed a written (and presumably edited) brief containing his contumacious comments, this statement came during an oral argument to the court and was presumably unrehearsed. I can’t say for sure, but I suspect the court will recognize that the degree of culpability for a spur-of-the-moment comment, however foolish, isn’t quite as great as it was for a document that was filed after time for reflection.
- Be proactively penitent and don’t make excuses.
As both of these orders are unpublished, you won’t find them on the court’s website; contact me if you want to see a copy.
FIRST-IMPRESSION RULING FROM CAV
IN REPRESENTATIONAL-STANDING APPEAL
[Posted July 20, 2010] Forty-one years ago today, Neil Armstrong took a step into territory where no one had previously gone. Today, the Court of Appeals of Virginia assures us, it follows suit by issuing an opinion on an issue of first impression in an administrative-law case, Chesapeake Bay Foundation v. State Water Control Board.
The appeal focuses on Stumpy Lake, a reservoir down here in Tidewater that’s so named because of the cypress trees in and around it. (If you’ve seen hydrophilic cypress trees before, you know they sprout “knees” above the water line that look like the stumps of former trees. Hence the name.) The Water Control Board long ago issued a permit to a company to develop land adjacent to the lake. Two nonprofit organizations had opposed the project, and they appealed the issuance of the permit.
This case has some appellate frequent-flier miles. In 2005, the CAV issued a previous opinion holding that representational standing was an acceptable means to empower the organizations to appeal on behalf of their members. The court remanded the case to let the trial court decide whether the organizations met the requirements for representational standing.
On remand, the trial court found that one organization met the requirements, but the other one didn’t. The reason for the differing result is that at least one of the individual members of the “successful” organization had appeared before the board in his own name to oppose the permit; but no individual from the other organization did so. The trial court ruled (granting a motion to dismiss) that representational standing required at least one such individual effort.
Today, the CAV once again reverses and send the case back for a hearing on the merits. A unanimous panel (Judge Frank writes the opinion) finds that there is no requirement of individual participation in order to permit an organization to take advantage of representational standing. Doing that would write a new requirement into well-established rules for Article III standing, and the court doesn’t feel at liberty to do that.
Stumpy Lake occupies a soft spot in my heart, because I frequently played golf at the course adjacent to the lake in the 1980’s and 1990’s. On one particularly cold day, when I hit a shot that seemed destined for an arm of the lake on the 13th hole, I was surprised to find that my ball, instead of splashing into the water, skittered across a thin veneer of ice that I hadn’t realized was there, to land safely on the fairway beyond. I promptly dubbed such a feat a “Tonya Harding Ball,” a name that has stuck in my memory (if not in my actual subsequent play of the game).
ANALYSIS OF JULY 13, 2010 CAV OPINIONS
[Posted July 13, 2010] After a week’s hiatus, the Court of Appeals gets back into the published-opinion game today, issuing four such rulings.
Domestic relations
In Johnson v. Johnson, the husband evidently engaged in some expensive philandering. The trial court awarded his wife a divorce based on adultery, and directed that he pay his wife $1.2 million in equitable distribution. (Okay; so that’s not a lot of money compared with the most expensive philandering in world history, which will unfold in Florida in Woods v. Woods. But still, that’s a lot of cash.) Sensitive to the fact that even rich people may not have that kind of liquidity, the court directed husband to make ten equal annual payments of $120K.
Domestic-relations practitioners will have seen this next development coming: Husband missed the first payment, so wife sought a show-cause order. That sent husband hurrying off to his broker to arrange to transfer $120,000 from his retirement account to wife to satisfy the first year’s payment.
Yes, he can do that; both the statutes and this particular divorce decree permitted the transfers to be made in-kind. But wife wasn’t satisfied with this deal, and it’s easy to see why: Because she’s getting proceeds from a retirement account, she will have to pay a hefty penalty (not to mention a whole lot of taxes) in order to liquidate the transferred account. She produced a tax expert who opined that she would net less than $61,000 this way, far from the amount she was due.
After considering the arguments of counsel, the trial court decided that the transfer complied with the divorce decree, so wife headed for Richmond. Today, the Court of Appeals affirms, noting that this is really a matter of interpretation of the original equitable-distribution order. Trial courts are allowed to interpret their own orders, and the appellate court was not about to say that the trial court didn’t mean what it said it meant. (I hope you followed that.)
Criminal law
It was a gazillion years ago, but I remember it well. I had been appointed in US District Court to represent a defendant in a drug case that wound up going to trial. During cross-examination of the government’s key witnesses against my client, I was able to establish that almost all of them had prior felony convictions. I mentally rubbed my hands together as I contemplated the closing argument I would make, impeaching those ne’er-do-wells just as the model jury instruction said I could. I was a really naïve baby lawyer back in those days.
Imagine my chagrin when the learned district judge, upon reading the prior-conviction instruction, leaned over to the jury and offered his additional take on things, being careful to tell them that they were free to disregard whatever he said (this, I later realized, was a dose of reversal-prevention): “When you’re looking for witnesses in a drug-distribution case, you won’t find them by looking in a church choir.” I’m now going to give you two guesses how well my impeachment-by-conviction closing argument went over with the thus-instructed jury.
In state court (far more civilized place that it is), judges aren’t allowed to comment on the evidence, and that sensible doctrine is at the heart of Keefer v. Commonwealth, involving a conviction for construction fraud. The trial court, seizing upon a 2003 CAV opinion in a similar case, gave a detailed instruction that listed several factors the jury could consider in determining whether Keefer acted with fraudulent intent. The judge told them that they could consider things like his failure to obtain a timely building permit, or his request for an advance on the agreed price when he got into financial trouble.
The problem with this language, correct as it may be, is that it really is just commentary upon the evidence – the judge telling the jurors what particular items of evidence they should weigh in making a necessary factual finding. The CAV accordingly reverses the conviction, pointing out once again that just because certain language is suitable for an appellate opinion doesn’t make it a proper jury instruction.
Virginia has a set of statutes that criminalize certain gang-related activities, but as one paragraph in today’s ruling in Phillips v. Commonwealth notes, “there is a dearth of case law” interpreting those statutes. Today’s opinion will help to fill in some of the gaps that are inevitably left in crafting legislation.
Technically, this is a split panel decision. Judge Powell writes a majority opinion, which the chief judge joins; Judge Alston writes a separate concurrence, in which he agrees with the judgment but finds the majority’s reasoning to be too narrow. Phillips was convicted of recruiting a juvenile for membership in a street gang, and of participating in a criminal act for such a gang that had at least one juvenile member. The court unanimously reverses the former conviction, finding that the only juvenile member of the gang was the one being recruited; the statute requires that there be a minor in the gang before the recruiting activity. That count is remanded for retrial on a lesser offense.
The disagreement today arises over the evidence that the court can consider in deciding whether a criminal street gang exists. Again, the issue is a temporal one: Can the defendant’s activities in themselves provide the predicate criminal actions necessary to constitute a street gang? (The law defines such a gang as one that engages in criminal activity, so the question is whether there has to be a previously-classified gang or not.) According to the majority, the trial court improperly considered the defendant's direct acts as being both the predicate for a finding of a street gang, and the direct criminal acts themselves. But the court finds that there’s plenty of other evidence in the record of previous criminal activity in this case, so I affirms.
Judge Alston agrees with the affirmance, but he sees nothing wrong with “double dipping” (to use the Hilton hotels’ phrase) by using the defendant’s criminal acts both to establish the existence of the gang and to support the felony conviction of the defendant. The difference may not be a major one, and candidly, I don’t know enough about gang activity to know whether this will be a recurring issue in future prosecutions. But the dissent touches a raw nerve for many of the Commonwealth’s urban areas when it cites “the unfortunately pervasive presence of gangs in Virginia,” which was the basis for the statutes in the first place. Inner-city mayors are still reeling from the US Supreme Court’s recent decision in McDonald v. Chicago (holding that the Second Amendment bars many state or local restrictions on gun ownership and possession), and they will applaud Judge Alston’s more expansive view of the use of these gang statutes.
Nicholson v. Commonwealth involves the question of whether actual force is required for a conviction of aggravated sexual battery, where the victim has a diminished mental capacity. The Supreme Court decided a case very much like this in 2006, involving a 14-year-old child who was statutorily incapable of giving consent. In that case, the Supreme Court found that the requirement of force was satisfied by the age of the victim. Today’s decision applies that reasoning to find that where a victim is incapable of consenting (the victim had Down’s syndrome and had the mental capacity of a 5- to 10-year-old), it was unnecessary for the prosecution to show the use of actual force.
MUSINGS ON TURNER AND ACTUAL INNOCENCE
[Posted July 12, 2010] Last week’s quietude at the Court of Appeals (no published opinions) has given me some precious time to devote to my day job, but I still owe my loyal readers some thoughts about the June 29 en banc ruling in Turner v. Commonwealth, where the CAV dismisses a petition for a writ of actual innocence. I covered the case at the panel stage on August 4, 2009, so I won’t go over the facts again. But several aspects of the en banc ruling merit some analysis here, and some attention for those of you who handle such petitions.
First, the court splits 5-3-1 on the outcome. In my view, that might not be fairly characterized as “highly fractured,” but it’s close to that descriptor. Judge Powell authors the majority opinion (that fact doesn’t appear at the outset, but Judge Elder later spills the beans on page 53); Judge Petty submits a concurrence on behalf of two other judges, taking a different tack but reaching the same port; Judge Elder, the author of the original panel opinion (in which the court granted the writ) dissents alone. So how does a 2-1 panel majority turn into a solo dissent? The panel had included Senior Judge Coleman, who doesn’t get a vote in the en banc decision.
Judges Humphreys and Beales did not take part in the decision. I presume that Judge Humphreys recused himself because at the time of Turner’s convictions in 1996, he was the Commonwealth’s Attorney whose office prosecuted the case. I’m not sure why Judge Beales stepped aside.
There’s an important threshold issue on which the majority and the dissent agree, leaving the concurrence on the metaphorical outside looking in. That issue is the court’s evaluative role in the case, and it produces perhaps the most interesting legal and philosophical sparring of the 66-page set of opinions.
In most appeals, courts speak of the applicable standard of review. That standard can be, and often is, case-dispositive on appeal. But what about a case like this one, in which an appellate court exercises original jurisdiction? The court isn’t “reviewing” anything in the sense of a normal appeal; it’s making a new decision from square one.
[Short digression: The CAV judges aren’t the only ones to wrestle with this confusing issue. Recently the Supreme Court, in JIRC v. Taylor, inexplicably applied Rule 5:25, the contemporaneous objection rule, to one of its own original-jurisdiction proceedings. I mused then that it was analytically impossible to apply this bar to a case in which the case is “originally tried” in the Supreme Court; but that didn’t stop the justices from barring an argument that hadn’t been raised before an investigative body.]
That issue matters a great deal in this case because an original panel of the court sent the case back to the circuit court for a determination of whether or not the murderer’s confession (which exonerated Turner from the actual killing) was credible or not. The local trial judge listened to the testimony and decided that it was indeed credible, and the subsequent CAV panel majority relied on that finding in issuing the writ. The question is, what appellate deference does the en banc court have to afford that factual finding?
The answer isn’t as easy as you might think. It requires consideration of several sub-issues. For example:
A. When the CAV grants en banc review, that action vacates the panel decision, and presumably any interlocutory orders that preceded the panel’s decision. Does that include the original order remanding the case to the trial court for the credibility determination? The concurrence says that it should, but both majority and dissent think otherwise.
B. How does the court review the credibility determination? Again, the dissent and the majority agree that the appellate court should be bound by it, but the concurrence, noting the court’s role as the original decisionmaker, thinks the matter has to be handled differently.
C. Is there a “standard of review” at all in original-jurisdiction cases? The concurrence thinks not, but the dissent believes that this is just a matter of the courts’ using a shorthand for a concept about which there is no question.
Ironically, the majority finds that it is bound by the trial judge’s finding that the confession was credible. But it dismisses the petition anyway, since it concludes that the evidence (even with the years-later confession added in) was not such as would require a factfinder to reach a different conclusion. Keep in mind that this is an actual-innocence petition, not a habeas-corpus petition. The stakes are different (new trial when a habeas petition is granted; immediate freedom when it’s actual innocence), so the decisionmaking standard is different, too. That standard is much tougher for actual-innocence petitions, precisely because of the permanency of this remedy.
In a habeas proceeding, all the petitioner needs to show is enough to cast serious doubts on the legitimacy of the conviction. If he does that, then he gets a new trial. But in an actual-innocence proceeding, a petitioner must prove that the evidence is such that he is necessarily innocent, not merely that a reasonable doubt might exist. That’s the key difference between the majority and the dissent.
But let’s not leave the concurrence here, because I think that position has the better of the argument on some of the material issues on which the judges disagree. Judge Petty writes that “it is our proper function to evaluate the probable effect this evidence would have had on a jury. When properly viewed through the prism of the statute, [the murderer’s] statement becomes just another piece of evidence that the jury would have considered.” If you accept this premise, then the concurrence’s conclusion becomes inescapable: A jury could well have disbelieved the murderer and believed that Turner played a more active role in the killing.
There’s more: The dissent chides the majority (justifiably, in my view) for concocting “a novel theory of abduction by deception in order to manufacture an intent to defile, a required element [that] a rational fact finder would need to find Turner guilty of felony murder.” The majority points to Turner’s far-less-than-honorable conduct in concluding that he was a participant in the crime, but the dissent responds that we aren’t trying him here for being rotten “after the fact.” The relevant inquiry was what Turner’s state of mind was when he and the victim left the bar and went to his car. The murderer’s confession, no matter how detailed, can never address that.
In the end, I find that my sentiments lie with the concurrence. Given my concept of the role of an appellate court in matters like this, I believe that the court’s grant of en banc review necessarily cleared out all previous panel rulings in the case, and meant that the Court of Appeals was the court that had to make a credibility determination. I recognize that appellate courts, in which witnesses are as scarce as wings on a hippopotamus, are poorly suited for credibility determinations, but that’s what the statutory framework requires.
The philosophical weakness in this view, I will readily acknowledge, is that it makes these writs almost impossible to get, because a jury could almost always have disbelieved the newly-acquired evidence. But the finality of the remedy makes it appropriate that relief under this statute, and not merely a new trial under habeas corpus, should be very rare.
EN BANC CAV REFUSES WRIT OF ACTUAL INNOCENCE
[Posted June 29, 2010] In a published order issued this morning, the Court of Appeals has refused a writ of actual innocence in a murder conviction. Turner v. Commonwealth has been major news here in Tidewater, where the murder occurred, and the petitioner in today’s ruling, Dustin Turner, urged the court to grant him the writ based on the confession of another man to the slaying.
The court’s 30-page primary order does not list an author; the majority finds that the murderer’s confession is insufficient to clear Turner of all culpability in the killing. Judge Petty files a concurrence on behalf of Judges Kelsey and Haley, and would refuse the writ on a different theory. Judge Elder, who was in the original panel majority that granted the writ, files a dissent.
I will post analysis of this decision and today’s published opinion (State Water Control Board v. Blue Ridge Environmental Defense League) later today and likely into tomorrow morning.
|
|
|