(Posted June 1, 2023) New day, new month … new opinion! This morning the Supreme Court of Virginia hands down a published opinion plus a single unpub, just the second of those this year. Both rulings are in appeals argued during the April micro-session, meaning that the court has now decided all three appeals argued that month.


Criminal procedure

The published opinion comes in Walker v. Commonwealth, involving a prosecution for a bank robbery and associated charges. The robber entered a bank wearing a mask, and –

As an aside, you don’t have to think back too long to recall that if a guy entered a bank wearing a mask, all hell would break loose. Then for a time during the pandemic, if someone walked in without one, he got sideways looks as if to convey, ‘Smatter, Mac? You don’t have the good sense to mask up?

But let’s return to our tale, which actually predates the pandemic by several years. The masked robber displayed a gun and angrily demanded cash from several tellers. He got away with $15,000 in currency and stepped into the passenger seat of a white Acura, which sped off.

Alas for our hapless perpetrator, ensuing circumstances conspired against him. A concerned citizen at another bank received word of the suspicious activity and noticed a white Acura. That person notified police, providing a description that included the license plate. Alas, the car was registered to our appellant, Walker.

The bad news is just starting. The efficient thing about stealing currency is that it’s more portable than, say, a boatload of dimes of the same value. (Fans of Blazing Saddles and the William J. LePetomane Memorial Thruway are going to have to forgive me for the edit there.) The drawback is that banks wrap bills of a single denomination with identifiable wrappers that a bank manager initials, providing a handy way to identify specific bills.

Two days later, police stopped our familiar white Acura doing 91 mph in Maryland, where the speed limit is somewhat lower than that. The officers found a bag in the back seat with lots of currency, including a bunch of bills that were – uh-oh – still in wrapped, marked, and initialed packs. Walker, who was in the passenger seat at the time of the traffic stop, eventually “testified that he had no idea there was money in the car when it was pulled over in Maryland. He blamed the robbery on his brother.”

But prosecutors had done their homework, and they called one of the bank tellers at the jury trial. That teller told the jury that while the robber wore a mask, she got a good look at his eyes, from close enough that she could have reached out and touched him. She identified Walker as the robber.

To get to our first appellate issue, I need to backtrack just a bit. Walker, acting pro se with standby counsel, moved the circuit court in limine to exclude any in-court identification by a witness unless the court had first “vetted [the witness] in their ability to identify the suspect in a blind 6-man photo lineup with only their eyes showing, because the suspect wore a ski mask.” In my uneducated view – I don’t hold myself out as an expert of any degree in criminal cases – I’d say that that’s not bad for a pro se. The circuit court denied the motion.

On appeal, Walker (this time aided by highly capable appellate counsel) asked the justices to rule that the inherently suggestive nature of in-court identification requires a prior ruling by the trial judge that the evidence is trustworthy – essentially asking the court to impose a Daubert-like threshold finding by the trial court before the jury can hear this kind of evidence. The Supreme Court notes the genuine risks attendant to in-court identifications, but declines to impose such a requirement. Justice McCullough’s opinion for a unanimous court observes that Virginia thus joins the majority of courts that have ruled on this issue.

The foundation for such a holding is an imposing one – the Due Process Clause of the federal Constitution. (Virginia’s constitution contains a nearly identical clause, but a footnote tells us that the litigants here “do not ask us to construe that Clause.”) Ultimately, the court holds that the proper place to test the reliability of this kind of evidence is “the crucible of cross-examination.” That means that the jury itself is the proper body to determine the reliability of an identification. We have model jury instructions that can warn juries about the possibility of unreliable identifications, and the court today rules that this safeguard is sufficient.

In an unrelated finding, the court confirms that a defendant can suffer a “second or subsequent” conviction – here, the issue is firearm charges, with their mandatory minimums and enhanced sentences for second and subsequent convictions – even when the events happened all at once. The jury convicted Walker of multiple firearms offenses, one for each victim in the bank at the time.

Today’s opinion notes that someone who robs multiple people deserves a worse fate than a crook who robs only one. I’ll admit that it’s hard to argue with that conclusion, and prior caselaw seems to indicate that someone who commits a string of crimes in rapid sequence is indeed liable for multiple firearms offenses. Here, we see that even simultaneous events can justify “subsequent” convictions.

Here are a couple of items that caught my eye in today’s decision. First, in a couple of places, I thought I detected a surprising measure of scorn for the appellant. For one example, here’s part of the last paragraph of the facts section:

Walker offered alibi evidence from a “good friend” and five-time convicted felon, who testified that Walker worked on the moving job all day, from around noon to about 6:00 p.m. Walker himself testified to that effect. However, this evidence differed in a number of ways from the alibi he provided to a detective just days after the robbery. Walker also offered evidence from another convicted felon that a man named “Mike” may have committed the robbery.

As I see it, the entire alibi issue is a red herring in today’s analysis, which has little or nothing to do with the strength of Walker’s defense. Even if it’s more germane than I perceive, I can see little justification for including the felony history of the alibi witnesses, other than to convince the reader – and remember, this will enter the annals of Virginia Reports, so “the reader” means posterity – that Walker is guilty as charged, because his alibi evidence leaks like a ’73 Chevy Vega. If this were a harmless-error opinion, I might see the relevance; but as it stands, it looks merely inflammatory. So does the recitation on p. 5 that the motion in limine, seeking to exclude the in-court ID, was handwritten. That fact has no relevance to today’s discussion; it merely makes the defense look amateurish.

The other glaring aspect of this opinion comes in the passage on p. 14 in which the court rules that juries alone should have the power to decide what evidence is reliable:

Of course, a defendant can make use of the traditional safeguards of the right to counsel, the right to present evidence, and cross-examination to expose mistaken eyewitness testimony. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (concluding that “[t]he[ ] conventional devices” of “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence … rather than [its] wholesale exclusion.”).

Daubert? DAUBERT? Of all the case cites in all the courts in all the world, that one walks into mine …. The irony here is that while the opinion today cites Daubert for the premise that the opponent of challenged evidence can attack it in court, the major holding of Daubert is very different: It directs federal judges to assess the reliability of expert testimony before a jury can hear it, and to exclude it if the judge concludes that it’s unreliable. With this incongruous citation, the Virginia court, while attempting to extol the sanctity of trial by jury here, has embraced one of the great federal anti-jury-trial premises.




(Posted May 19, 2023) Last week, I posted a short note on the coming June session docket in the Supreme Court of Virginia, guessing that it would contain just five granted appeals. I was overly optimistic; the docket is out, and there are only three cases on it. The court will convene and adjourn for the summer all within an hour and a half on the morning of June 7. This will be the second consecutive session with a bare trio of appeals.

There’s hope on the horizon, though; based on the series of grants thus far this year, it now looks like we could see five or six – maybe even seven – appeals in the September session. But that’s probably the end of the good news, as November may well be barren.

How do I know this? Well, in truth, I don’t. But today is the Supreme Court’s May writ panel session. Appeals granted in this month’s Gathering of the Robes typically fuel the November argument docket. And the lineup for today is dismayingly small – just 24 hopeful appellants will seek precious grants today. For comparison, on April 4 the justices heard writ arguments in 36 cases and granted just one writ.

For those of you in the appellate guild, we are not in a growth industry these days. Let’s hope for a brighter 2024. It seems a little early to be looking to next year already, but that’s what we have to work with.




(Posted May 18, 2023) For the second time in three weeks, we get a significant decision interpreting Virginia’s Freedom of Information Act. The case is Gloss v. Wheeler and arises in Prince William County.

Wheeler chairs the County’s Board of Supervisors. When protests in Manassas and Gainesville arose – eventually growing into what county officials called riots – five days after the killing of George Floyd by a Minneapolis police officer in May 2020, county police officials notified members of the Board. The Board chair met with police shortly after noon the next day, May 31, and then attended a meeting of the police department’s Citizens’ Advisory Board at 1:00. Four other members of the Board also attended; the other three members weren’t made aware of the meeting.

At the CAB meeting, the Board of Supervisors chair addressed the audience and another Board member asked the police chief for an “after-action report” on events of the previous evening. At 4:00 that afternoon, all eight members attended a properly noticed emergency meeting of the Board to discuss the disturbance and the police response to it. At this meeting, the three excluded members of the Board learned of the CAB meeting that had begun just three hours earlier.

Several citizens sued the five attendees, claiming that their appearance at the CAB meeting violated the open-meetings requirement of FOIA. At the ensuing trial, the circuit court granted a motion to strike the citizens’ evidence, concluding that the CAB meeting was only for informational purposes and not for the conduct of public business.

That ruling draws spirited debate among the justices this morning. By a 5-2 vote, the Supreme Court reverses and sends the case back to circuit court for a retrial. Justice Russell, writing for the majority, cites the legislative presumption of openness and the required “thumb on the scale” in favor of expansive interpretation of FOIA protections. The majority rules that “a topic is ‘public business’ for the purpose of Code § 2.2-3701 if it is either ‘pending before’ the public body at the time or it is ‘likely to . . . come before it in the future.’”

The chief justice, joined by Justice Powell, reasons that the majority’s rule would stifle open discussions, not prompt them. The dissenters perceive that there’s a difference between public business and a mere topic of discussion, so even an expansive reading of FOIA wouldn’t encompass the meeting at issue here.

Here are a couple of things that caught my eye in my stroll through the opinions. First, the majority cites a concession by the supervisors’ lawyer in oral argument that the majority’s reasoning would “logically follow from a ‘literal reading’ of” prior caselaw. Appellate advocates are well aware of the dangers of concessions made at the lectern; many an appeal has found itself scuttled by a lawyer who wasn’t circumspect enough to decline to concede something.

But the dissent doesn’t see it as a concession at all. Here, judge for yourself:

The unprecedented definition which is being criticized in this dissent is the assertion that certain topics constitute public business. The response perceived and cited by the majority as a concession (to the majority’s assertion that a topic can be public business regardless of the context in which it is discussed or by whom) was in response to a question regarding whether business that was likely to be on the agenda in the future could be public business, and the defendants replied: “That is a literal reading of Beck and I urge the Court to look at that case and that context when evaluating this case because that was a very different . . . that was a very different set of circumstances there.” That statement by defendant Board members is not a concession that a general topic can be considered to be public business.

In fairness, I agree with the dissent that this is far from an unqualified concession; the lawyer for the supervisors did what he could to distinguish the prior caselaw. This highlights the risks attendant to answering “will you concede …” questions in oral argument with anything less than a robust refusal to concede.

One other significant point in my mind: The citizens brought this lawsuit in 2020, shortly after the CAB meeting. After the trial but before entry of final judgment, the supervisors moved the court to reconsider its ruling, which it had announced from the bench at trial. The circuit court entered an order on May 18, 2021 that denied the reconsideration motion; this was evidently the final order in the case.

I’ll do the math for you: May 18, 2021 is two years ago today. It took this case two full years to proceed from final judgment below to a final appellate judgment. Note that because the citizens appealed in 2021, this case didn’t get diverted to the Court of Appeals first; it went straight to the Supreme Court.

This, my treasured readers, is what I call a problem. Here’s the timeline, including the approximate time elapsed at each stage:

  • May 18, 2021 Circuit court enters final judgment
  • October 12, 2021 The record arrives in Richmond (5 months)
  • April 21, 2022 Writ granted (6 months)
  • July 7, 2022 Merits briefing complete (2½ months)
  • November 1, 2022 Oral argument in the November session (4 months)
  • May 18, 2023 Final appellate ruling (6½ months)

That’s how you get to two years. Most of the earlier entries on this list are fairly normal time spans, though they each – other than the merits briefing – seem to be toward the longer end of the normal range. The most significant outlier is the last one. The Supreme Court entertained oral argument in this appeal 28 weeks ago, one of the longest delays I’ve seen since the court moved to rolling release dates for opinions in 2015.

I hasten to add that this case has features that tend to lengthen the time for a decision. It’s a matter of significant public interest, and it features a lengthy dissent. Where there’s a split vote, the authors of the majority and dissenting opinions share their drafts with each other, allowing the other to respond in writing. That often generates new passages that themselves call for revisions in the opposite draft; the process goes back and forth until the two authors are satisfied with the product.

But make no mistake: Judging from the statistics that I keep, including a copy of each argument schedule going back almost eight years, a six-month delay is extraordinary. I mention this not to be critical but to inform my readers who advise appellate litigants. The time it takes to resolve an appeal can be quite long, and your clients will want to know that.