(Posted January 7, 2020) Here’s a quick look at a few things happening now in the appellate world.


The appellate bar gets smaller – in a good way

Virginia Attorney General Mark Herring announced yesterday that he’s chosen Roanoke appellate lawyer Erin Ashwell as his new chief deputy. The current chief, Cynthia Hudson, will leave next month after six years on the job; she’s reportedly going to return to the private sector. Erin is a terrific lawyer and a delightful person; the AG has chosen wisely.


The incredible vanishing docket

Back on December 19, the Supreme Court announced its January session schedule, featuring just eleven appeals. The first session of the calendar year is usually the smallest; for the prior two years, the court calendared just 13 arguments each, and it was 12 in 2017. Eleven is a step down, though still in the same ballpark.

But that was then. Last Friday, the court issued a revised schedule featuring just ten arguments. As of this morning, we’re down to nine.

I don’t know about you, but I regard the shrinking merits docket with alarm. The justices are granting fewer writs than at any time since I began publishing this website. That means fewer arguments to keep appellate lawyers from getting bored. More important, it means fewer published opinions to guide bench and bar. This is not a good sign.


A painful ruling from the CAV

This one’s a real head-scratcher: The Court of Appeals today agrees with an appellant that the trial court mistakenly applied Rule 1:1 to bar consideration of her post-trial motions. There’s no suggestion that the error was harmless. And yet the court affirms. How did this happen? Let’s look into Nelson v. Commonwealth to find out.

This is a prosecution for embezzlement. A trial judge convicted Nelson after a bench trial in September 2017. A few days later, in early October, the court entered a conviction order that directed preparation of a presentence report.

Three and a half months later, while we’re presumably still waiting for the report, Nelson’s lawyer filed a motion for a new trial, citing an allegedly erroneous evidentiary ruling. The prosecution replied that this motion came too late, since it was more than 21 days after trial.

That reply is, to put it diplomatically, deficient in the merit department. Okay, I’ll say it candidly: It’s flat-out wrong. Rule 1:1 starts operating when the court enters a final order. In criminal prosecutions, that’s the sentencing order. And the trial court hadn’t entered one of those. The motion was perfectly timely.

Alas, that fact escaped the attention of the defense lawyer. Perhaps he read the prosecution’s reply, checked the rule, and caved, figuring that a career prosecutor wouldn’t get this wrong. The defense lawyer stated orally to the judge that the motion was, indeed, untimely and the court didn’t have jurisdiction to consider it. The court entered a consent order – a consent order! – denying the motion on jurisdictional grounds.

We now jump forward to September 2018, almost a year after trial. The defense lawyer filed yet another new-trial motion, this time alleging a violation of Brady v. Maryland. The prosecution again asserted the bar of Rule 1:1. The court denied the motion without explanation and finally, in December 2018, entered a sentencing order.

We now have an obvious problem: The trial court was patently wrong in its ruling, but it entered an agreed order to carry it out. Nelson’s appellate counsel asserted the unmistakable error in the Court of Appeals, and unsurprisingly a panel of that court today agrees with the defense’s analysis: the trial court got it wrong. But the panel declines to address that error, finding that Nelson’s lawyers have approbated and reprobated – said one thing in the trial court and the opposite on appeal. It also declines to apply the ends-of-justice rule, because that provides an exception for failure to preserve error; not for a waiver like this.

Nelson has one other appellate contention, urging reversal to correct a hearsay ruling. Today’s opinion contains this tragic trial-transcript excerpt:

[DEFENSE COUNSEL]: Okay. Did you hear him say anything about that check?

[COMMONWEALTH ATTORNEY]: Your Honor, I’m going to object. That’s trying to get out hearsay, but just not asking for the specific [sic] of it.

JUDGE: Mr. Tyler.

[WITNESS]: I heard him say . . .

JUDGE: Whoa, whoa, ma’am. Hang on. [Defense Counsel].

[DEFENSE COUNSEL]: I withdraw the question.

JUDGE: Okay.

(Sigh.) I have no way of knowing, without more context, whether the question was improper or not. But I can tell you, with 100% certainty, that the defense waived the objection. Trial lawyers often want to be seen as reasonable, or perhaps curry favor with trial judges, by withdrawing objections. That may or may not prove ingratiating, but from an appellate standpoint, this is always fatal; you can’t appeal a ruling that the judge never made.

I’ve included some editorial comments here that make it appear that I’m rooting for Nelson. That’s not quite true; I don’t know if she’s truly guilty or not. What I mourn is the tragic loss of appellate issues to entirely avoidable trial mistakes. Nelson may be able to state an ineffective-assistance claim under Strickland v. Washington, but this direct appeal is going nowhere; the CAV panel affirms the conviction.


A new Wellness Coordinator

The Supreme Court announces today the hiring of a Wellness Coordinator to serve in the Office of the Executive Secretary. The justices import Margaret Hannapel Ogden from the Commonwealth of Pennsylvania as the first occupant of this office. The announcement describes her duties as to provide “education of, and assistance to, judges, lawyers, and law students regarding professional health and wellness initiatives, with a focus on improving mental health and addressing substance abuse in the legal profession.”

I’ve been very pleased to see the new emphasis on lawyer wellness in the past year or two. Most of you have seen the reports that our profession suffers disproportionate rates of substance abuse, depression, and suicide. The old approach has been for lawyers to feel they have to suck it up and accept these risks as part of the price of being in this profession. I’m glad we’ve moved past that.

This initiative comes too late to help a couple of my lawyer pals – one of whom was an appellate attorney like me – who chose to end their lives. I’ll be thinking of you, my brethren Tom and Gray, as I follow the progress of this new program.