REPORT ON RECENT APPELLATE DEVELOPMENTS

 

[Posted December 19, 2012] Here’s a quick read on several newsworthy items in the appellate world as 2012 draws all too speedily to a close.

 

Former Solicitor General passes away

I learned this morning that Robert Bork has died at 85. Bork served in the Nixon Administration as Solicitor General, and played a key part in what came to be known as the Saturday Night Massacre in October 1973. During the Watergate investigation, the President decided to fire Special Prosecutor Archibald Cox, perhaps because Cox was asking the wrong kind of questions. He directed Attorney General Elliott Richardson to carry out the task, but Richardson refused, electing to resign instead. Nixon then turned to the second in command at the Justice Department, Bill Ruckelshaus, but he, too, stepped aside rather than carry out such a distasteful order. Bork, as Solicitor General, was next in line, and he carried out the President’s directive.
 
(At the time of these events, I was engaged in the vital process of figuring out how to survive my sophomore year in high school with my dignity intact, so I was too busy being young and stupid to appreciate the enormous significance of what was happening. I did have a good sense, even at that tender age, that a lot of people were seriously worked up over this development, and seriously infuriated with the president’s decision to fire the guy who was investigating him.)
 
Bork served as Acting Attorney General for a time before returning to the SG post (which was probably much more fun anyway; the SG is the highest-ranking lawyer in the government who actually practices law). Years later, President Reagan nominated him for a seat on the Supreme Court to replace Justice Lewis Powell of Virginia; but the Senate refused to give its consent, probably in no small measure because of the Massacre. Bork’s confirmation hearings have become known as the point at which the process of approving judicial nominees became far more political than it had been before.

 

In addition to his time in the Justice Department, Bork served for six years on the Court of Appeals for the DC Circuit, and his tenure at Yale’s law school included some time at the lectern in front of a couple of students named Rodham and Clinton.

 

A bludgeoning from the Court of Appeals

Make no mistake about it; I love what I do for a living. Even the time-consuming process of reading and analyzing appellate opinions presents a novel challenge each day; the “constant variety of sports” in the appellate arena is just icing on the cake.

 

But every so often, I see an opinion that causes me to wince as I read it; often repeatedly. Usually I do so when I see opinions that point out meritorious but waived arguments; often these decisions involve sharp rebukes to the lawyers who handled a given case. (Some appellate jurists half-jokingly refer to such admonishments as “bench-slaps.”) Yesterday’s decision in Sutphin v. Commonwealth constituted just about the longest 6½ pages I’ve ever read. It begins with this sentence, which tells you clearly that the thunderclouds are gathering on the horizon: “Despite the fact that the evidence is clearly insufficient for the offense charged, . . . we must nevertheless affirm the judgment of the trial court.”

 

Sutphin was charged with a particular form of perjury – he was alleged to have given divergent testimony about the same topic on two different occasions. This is different from plain-vanilla perjury, for which you need two witnesses or one witness plus corroboration. His sin was in stating in open court, in the course of a probation hearing, that he was duly employed. He knew (as his former boss testified) that he had been fired two days earlier.

 

End of case, right? He made a materially false statement, and his boss corroborated it, but that’s only one witness. But let’s go back to the indictment, which specifies exactly what the defendant is being charged with: the two-testimony variety of perjury. The evidence here establishes that the erstwhile employee testified only once. He’s not-bloody-guilty.

 

Except this fact somehow escaped prosecutor, defense lawyer, and trial judge. It even escaped the notice of both appellate lawyers assigned to the case. Behold, from page 2: “apparently neither party was aware of the actual charge brought in the indictment until it was brought to the attention of the parties by this Court during oral argument.” This, we can agree, is the wrong time and the wrong place for a case-dispositive issue to surface.

 

The court affirmed yesterday, as I telegraphed above, despite the panel’s clear distaste for such an outcome. On appeal, Sutphin assigned error to the trial court’s failure to require corroboration from two witnesses, despite the fact that the two-testimony variety of perjury doesn’t require any corroboration at all. The court rules that the assignment of error identifies a ruling that the trial court clearly got right, without identifying the plain-view part that it got wrong. The court declines to apply the ends-of-justice exception to the contemporaneous-objection rule because Sutphin never asked for it. The court’s precedent is clear; it won’t apply this exception sua sponte. You have to ask, and Sutphin didn’t.

 

There is a closing footnote that instructs Sutphin on the proper spelling of the Latin term habeas corpus, should he choose to pursue an avenue that seems highly likely to succeed.

 

Finally, the court expresses its frustration with this situation in a scathing footnote earlier in the opinion. It hurt my eyes to read it, so I won’t go through that ordeal again; I will, however, copy and paste it here, so the appellate rubber-neckers among you can view the carnage:

 

“It would seem obvious that a prosecutor, in drafting an indictment, would ensure that the indictment conformed to the proof he or she expected to present and seek an amendment if a material variance from the evidence developed during trial, and it would seem equally obvious that in defending someone charged with a crime, any defense should logically begin with a review of the indictment since that document frames the charge and its elements that must be proved, yet neither apparently occurred in this case. After our decision today, the issue of whether Sutphin committed perjury remains an open question but what is clear is that neither his trial nor this appeal has been fair by any objective standard. Our system of justice necessarily fails in its purpose when attorneys who are oathbound to champion the cause of the public or their individual clients, prepare so inadequately to do so. This case provides a vivid example of such a failure.”

 

Pending rule changes

There are several changes in the Rules of Court that will take effect on January 1; here’s a linkto a page where you can read through them. Of particular note, Rule 1:4(l) will require attorneys to put their State Bar Number on pleadings. There’s a new provision in Rule 4:5(c), dealing with the always contentious subject of depositions (I am so glad to be out of trial-court practice for this reason alone) dealing with objections on the record: “Any objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Good attorneys have been obeying this rule for years, but apparently the practice of “speaking objections,” whereby a lawyer can “educate” the witness as to how to answer a given question, is still pervasive enough that it requires a specific rule.
 

Appellate courts’ holiday closings

The Supreme Court of Virginia and the Court of Appeals of Virginia will be closed next Monday and Tuesday, December 24-25, plus the following Monday and Tuesday, December 31-January 1. In addition, they’ll be closed Friday, January 18 for Lee-Jackson Day and Monday, January 21 for King Day.

 

The Fourth Circuit will also be closed December 24-25 and January 1, but they’ll be open on New Year’s Eve. That office will also be closed January 21.

 

With each of these closings, if you have a deadline that falls on one of those days or an adjacent weekend, your filing deadline is extended unto the next day on which the court is open. Of course, if you believe the Mayans, we won’t have to worry about upcoming deadlines after tomorrow, now, will we?
 

One last point: If you have to file something with your local trial court’s clerk, that clerk will probably adhere to the same schedule as set forth above. But you should call to make sure; if you have something to file in the local court (a notice of appeal or an appeal bond, for example), and that court is open on a given day when the appellate clerk is closed, you don’t get the extension. Of course, you shouldn’t play with deadlines anyway; you should always file early.