(Posted March 16, 2023) Everybody make it through yesterday okay? No stab wounds or anything? I ask because, at least in the legal profession, March 15 has been an unlucky day for over 2,000 years. (Gaius Julius Caesar was walking to court when he was murdered.)

On the assumption that all is well in your world, let’s take a look at a brand-new opinion from the Supreme Court of Virginia.


Criminal law

There’s no doubt that a woman named Kimberly Paul Barney robbed a drug store in Hampton early in the morning on Christmas Day in 2015. Here’s how today’s opinion describes the relatively simple factual setup; the person identified as Daugherty was the drug-store cashier:

Barney presented Daugherty with a box of candy and a handwritten note that stated: “[T]his is a robbery, stay calm, [and] don’t make a sound if you want to live.” Id. at 157. Mistakenly thinking the note was a shopping list, Daugherty initially ignored it, “rang up” the candy on the cash register, and put the candy in a bag. Id. Displeased by the oversight, Barney verbally commanded: “[G]ive me the money.” Id. at 158. Daugherty then read the note.

“[W]hen I saw the note,” Daugherty testified, “I looked and it appeared to me that she had a weapon in her pocket[,] and it was pointing at me in a motion for me to notice that she had what I believed to be a weapon.” Id. She continued, “I was being robbed at what I believed to be gunpoint.” Id. at 157.

I’ll quickly add that no one was physically harmed in this encounter. Barney got a fistful of cash and left the store without taking her right hand out of her sweatshirt pocket. The matter ended appropriately, with Barney’s arrest the next day by local police. Authorities never found a firearm.

The issue in Commonwealth v. Barney isn’t the robbery; Barney pleaded guilty to that charge, and is probably receiving a substantial period of free room and board with the compliments of the Director of Corrections. The issue today is Barney’s conviction for a companion firearm charge – use of a firearm in the commission of a felony. At trial, Barney admitted the robberies, but denied that she actually had a weapon at the time.

When it comes to victims, Virginia law emphatically is not heartless; you can be convicted of robbery even when you bluff your way through it by convincing a victim that her life really is in danger. The store clerk unquestionably feared for her life. But the companion-firearm statute is different: It affirmatively requires the use of a firearm, or a replica that looks enough like a firearm. The question in this appeal is whether the prosecution proved that Barney had a gun, and not merely an extended finger, in that pocket.

Although no one ever saw a gun and Barney never claimed that she had one, a jury was satisfied and convicted her of the firearm charge. A panel of the Court of Appeals semi-unanimously reversed that conviction, holding that the evidence didn’t establish the presence of a weapon beyond a reasonable doubt. (It was semi-unanimous because one judge concurred in the result.)

That made it the Commonwealth’s turn to appeal; it sought and obtained a writ. Today a sharply divided Supreme Court reverses the CAV, reinstates the conviction, and enters final judgment.

Justice Kelsey pens the majority opinion; he’s joined by Justices Powell, McCullough, and Chafin. The majority concludes that there was enough circumstantial evidence to enable the jury to find the presence of a weapon.

In a 2004 SCV decision, the robber had stated to his victim that he possessed a gun. The Dubya-era justices found that sufficient to establish possession of the weapon. In voting to reverse Barney’s conviction, the CAV had found this factual difference critical, but today’s majority calls it “a feather-weight distinction,” continuing,

Barney threatened to kill Daugherty. Barney made this threat while pointing at Daugherty what looked like the barrel of a handgun. The murder weapon in her pocket — Barney’s words and gestures obviously implied — was a handgun, not a finger. We thus see no persuasive value in the observation that unlike in Powell, Barney’s note “mentioned nothing of a weapon, let alone a firearm.”

I noticed a few other disputed angles in today’s opinions, but in my mind, this is the key dispute. Today’s dissenters – Justice Mann, joined by the chief justice and Senior Justice Mims – see things differently:

An affirmative inculpatory statement by a defendant that he or she possesses a firearm establishes an essential element of Code § 18.2-53.1. Without such an affirmative statement, to satisfy its burden of proof, the prosecution is required to present other evidence, which is sufficient to prove beyond a reasonable doubt, that a defendant did in fact possess a firearm.

The dissent adds, “Here, the feather is mighty when weighed against silence.”

It’s been a long, long time since I handled criminal work, so I know better than to start making broad pronouncements about that area of the law. I try to stay in my lane. But today’s opinion does pique my interest in an area that emphatically is in my lane: appellate review of jury findings.

Criminal prosecutions demand the strongest burden of proof known to the law: proof beyond a reasonable doubt. In this case, that means that the prosecution had to establish the presence of a weapon, and that proof had to be so strong that any doubt about its presence would be unreasonable.

If this had been a civil case, measured by a preponderance standard, then it would be easy to shrug and say that the jury could well have concluded that the robber probably had a gun. But in a criminal case, one must conclude that the possibility that Barney used only her finger is not only improbable; it’s unreasonable.

In that context, I invite you to envision yourself trying to explain to a layman the difference between this case, in which the Supreme Court defers wholly to the jury, and the recent civil ruling in Colas v. Tyree, where the justices on January 26th simply discarded a jury’s well-supported fact finding in favor of a little-used evidentiary presumption.

I encourage you to keep this conversation hypothetical. Don’t actually try to convince a real layman, because you won’t succeed. You will instead get a puzzled look and a question like, “So does the appellate court allow the jury to find the facts, or not?” In these two decisions, the majorities – Colas was 4-3, too, with the same four justices in the majority – defer to the jury in the case with the tougher burden of proof, and intervene on the more lenient one. That’s the reverse of what I would expect.

Today’s decision is the latest in a small number of rulings in which the Supreme Court ironically splits 4-3 on the question whether reasonable people can disagree on something.




(Posted March 9, 2023) For the fourth consecutive Thursday, The Robes by the James leave us wanting in the opinions department. Let’s look instead to the south, where our Tar Heel cousins have been busy making news in the appellate arena.

Those of us with at least a passing interest in Those Other Robes, the ones across the Potomac, know that in December, SCOTUS heard oral argument in Moore v. Harper, an election-law case. The argument made news because it raised the issue of the “independent state legislature” theory of constitutional election law. Specifically, the petitioners there argued that the courts of North Carolina cannot review redistricting decisions, even where the gerrymanders are egregious, because (the argument goes) the Constitution consigns election issues to state legislatures; not to states. Under this concept, the legislature can do whatever it wants about districting, free from judicial review.

Early in 2022, the North Carolina Supreme Court affirmed a lower-court ruling that had struck down the district map passed by a legislature dominated by Republicans. Predictably, that map skewed rightward, paving a smooth electoral path for Republican candidates. In a 4-3 ruling, the North Carolina court ruled that such tactics were impermissible.

A word about that court: North Carolina is among those states that use what I regard as a singularly repugnant method of choosing jurists: popular election. What can be wrong with that, you wonder? Why shouldn’t governmental officials be chosen in the most democratic way possible?

Think about this from the perspective of an appellate advocate. Jurists have to interpret the law in ways that are occasionally unpopular; that’s why the United States insulates them from the winds of political change. (States, in contrast, aren’t required to do that.) Now, imagine yourself at the lectern, arguing for a politically unpopular ruling that you nevertheless believe is legally correct. As you argue, you imagine what thoughts are going through Justices Smith and Jones’s minds: If I rule the way Steve wants me to, I could lose my reelection bid next year. Our beloved Commonwealth takes such crass considerations away from our legal system. North Carolina’s doesn’t.

Last year, when the North Carolina Supreme Court handed down its ruling, Democrats held four seats and Republicans three. The issue was inherently political – the court was evaluating an effort to stuff legislative halls with a disproportionate number of Rs – and the vote came down along party lines.

But something significant happened last November: In the statewide election, Republicans gained two seats on the Supreme Court, giving them the prospect of a 5-2 majority. That majority came to fruition in January 2023 with the new jurists’ investiture. Three weeks later, the losing litigants, sensing an opportunity, filed a petition for rehearing. The new court granted that petition on February 3 by a vote of 5-2. I’ll let you guess the political lineup of the votes on that one.

The two justices in the new minority filed dissenting opinions, and they weren’t gentle. The majority cited a 1959 decision in which the court said this: “No petition to rehear was filed. That is the appropriate method of obtaining redress from errors committed by this Court.” The dissenters point out, in so many words, that this unremarkable statement doesn’t set up a decisional rubric for PFRs; and it’s just dicta, since “no petition to rehear was filed” anyway.

There’s more. The dissenters aren’t subtle about accusing their new brethren and sister of exercising raw political power. They note that the court grants rehearing extremely rarely – far less, it would seem, than do our Robes here in Virginia – and always with a specific reason, usually an uncontroversial one. But nothing has changed in the law or the facts; there is no suggestion that the 2022 decision overlooked an important legal issue or created an undesirable unintended consequence. There is one, and only one, reason, the dissenters charge, why the majority granted this petition: They have the votes now to change the outcome.

That prompts consideration of the doctrine of stare decisis, by which courts respect precedent. Once a decision comes down, subsequent courts are supposed to continue to adhere to it, even if they disagree with the ruling or its rationale. That rule of law promotes stability in the law and, concomitantly, in society. Overturning established precedent is supposed to happen very rarely, and then only when circumstances have changed to the point that the old law is no longer workable, or is subject to a major shift in public mores. Brown v. Board of Education is one example of the latter justification.

I’ve mused before that, too often, the strength of stare decisis turns on what’s on the other side. If it protects a decision that the court’s majority likes, it’s an impregnable stone wall, eight feet thick and twenty feet high. For decisions that a court doesn’t like, it’s more like a well-worn speed bump, now eroded down to less than an inch high. When courts want to overturn precedent, they usually cite holdings like Brown and quote language that stare decisis “is not an inexorable command.” (If you want a collection of cases where a given court has overturned established precedent, search for that two-word term.)

These grants generate some pointed language from the dissenters. Justice Earls accuses her colleagues of “raw partisanship”; Justice Morgan cites an 1898 decision where the court had said, “A partial change in the personnel of the Court affords no reason for a departure from the rule” of stare decisis. Justice Earls’s dissent concludes this way:

The consequences of this Court’s orders are grave. The judiciary’s “authority … depends in large measure on the public’s willingness to respect and follow its decisions.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 446 (2015). The public’s trust in this Court, in turn, depends on the fragile confidence that our jurisprudence will not change with the tide of each election. Yet it took this Court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes. Because this Court’s decision today is an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve “impartially,” “without favoritism to anyone or to the State,” I dissent.

Well, now.

Last year, I cited Fourth Circuit Judge Jay Wilkinson’s warning that courts must avoid “the appearance of partisanship.” He continued that a descent into the politicization of the courts would “undermine our most valued asset, the public’s trust and confidence in the judiciary.” Middleton v. Andino, 990 F.3d 768, 773-74 (4th Cir. 2020).

But Judge Wilkinson was writing at a different time. Since Middleton came down, we’ve seen SCOTUS lead the charge away from stare decisis, valuing only the ability to count to five.

What about here in Virginia? The title of this essay is a clue; while precedent-shifting does sometimes occur here, I sense that it’s fairly rare. More likely, an appellate court here will grumble slightly about the precedent while upholding it. For one easy recent example, Justice McCullough’s opinion for a unanimous Supreme Court in Doe v. Baker, 299 Va. 628 (2021), expressed skepticism that a company could be vicariously liable for a criminal act by its employee, but concluded that “our precedent, … combined with the long-established standard under which we review the grant of a demurrer, constrains us to reverse and remand.” That patently reluctant conclusion echoes Justice Kelsey’s reversal-with-a-sigh opinion on the same issue in Our Lady of Peace v. Morgan two years earlier (297 Va. 832).

Stability in the law requires an approach like this. In contrast, then-presidential-candidate Donald Trump famously promised in 2016 that he would appoint Supreme Court justices who would vote to overturn Roe v. Wade. He delivered on that promise, as we saw in Dobbs v. Jackson Women’s Health last year; this ruling followed Justice Sotomayor’s warning about a “restless and newly constituted Court.” I don’t know if the new North Carolina justices campaigned on an overt promise to reverse Holmes v. Moore and Moore v. Harper, but deliver they did, just a few weeks into their terms on the court. These jurists either hadn’t seen Judge Wilkinson’s warning, or else they didn’t care.

As a result of this rehearing grant – oral argument in the NCSC will be next week, and the betting line on a different ruling is probably around -32000 – SCOTUS has asked the parties in that Court to brief whether it has appellate jurisdiction.

Back here in Virginia, our method of judicial selection isn’t perfect, or even close to it. But it brings to mind Winston Churchill’s bon mot about democracy, that it’s the very worst form of government, excepting only all the other ones that have been tried from time to time.