REPORT ON RECENT APPELLATE DEVELOPMENTS
[Posted December 19, 2012] Heres 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
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 Yales 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.) Yesterdays decision in Sutphin v. Commonwealth constituted just about the longest 6½ pages Ive 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 thats only one witness. But lets 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. Hes 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 panels clear distaste for such an outcome. On appeal, Sutphin assigned error to the trial courts failure to require corroboration from two witnesses, despite the fact that the two-testimony variety of perjury doesnt 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 courts precedent is clear; it wont apply this exception sua sponte. You have to ask, and Sutphin didnt.
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 wont 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
Appellate courts holiday closings
The Supreme Court of Virginia and the Court of Appeals of
The Fourth Circuit will also be closed December 24-25 and January 1, but theyll be open on New Years Eve. That office will also be closed January 21.
One last point: If you have to file something with your local trial courts 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 shouldnt play with deadlines anyway; you should always file early.