Tuesday, May 16, 2006, produces a number of interesting developments in the appellate courts across Virginia.

Fourth Circuit
One published opinion handed down today provides an unwelcome glimpse into the price of integrity for a few citizens in Caldwell County, North Carolina. US v. Shatley involves convictions on a time-tested version of bribery – that of buying votes in a general election.

Buying votes is not unique to American politics; it has been around since the most corrupt days of classical Roman elections, whether the purchases were made with coinage or just more “bread and circuses.” Wayne Shatley evidently turned to the former tactic in support of a Republican candidate for Sheriff in a 2002 election. In concert with four other individuals, he conspired to raise money “in a widespread scheme” (including over $5,000 of his own funds) to buy votes from the good voters of that county. The purchase price for each vote was usually $25.

[Digression: Twenty-five dollars?!? Is that all a self-respecting voter can get for the franchise these days? More troubling, is that the real price of a voter’s integrity?]

In a trial for one count of conspiracy and three counts of actually purchasing the precious ballots, a jury got Shatley on all counts. Sentencing was conducted after Blakely v. Washington, but before US v. Booker, meaning that (1) sentencing under state, but not federal, mandatory guidelines was improper, and (2) everybody and his brother figured the other shoe would drop soon, and federal guidelines were presumptively the next to fall.

In between those two landmark cases, and before Shatley’s sentencing, the Fourth Circuit handed down US v. Hammoud, in which it suggested that district courts append a “backup” sentence, treating the guidelines as advisory only. The district court heeded that advice, and sentenced Shatley both ways. Then came Booker, and this appeal.

Today, for the second time in two weeks, the Fourth affirms such a safety valve sentence; the previous ruling was US v. Revels, handed down on May 1. As a result of this ruling, Shatley gets his full sentence (33 months) to ponder the price of creative election reform.

Supreme Court
The Supreme Court of Virginia announces two new writs today, both handed down recently in criminal cases. Hodges v. Commonwealth, arising in Henrico County, involves, presumably, a grand larceny conviction, where Hodges challenges the sufficiency of the evidence of value (grand larceny requires theft of goods with a value of more then $200). And Davis v. Commonwealth, which comes from Virginia Beach, contains this single, intriguing assignment of error: “The court erred in finding that the actions of the appellant, in touching the police officer over top of her clothing, was sufficient to find a penetration of the police officer’s labia majora, when the officer was dressed in uniform trousers and wearing undergarments.”

These two items merit mention because of the paucity of criminal writs granted. Generally, the Supreme Court grants only about one out of forty such petitions, so seeing two at once is at least noteworthy. In case you think the Supreme Court is hard-hearted when it comes to criminal cases, think again; unlike other cases the court generally considers, criminal cases have been “filtered” through one appellate layer already in the Court of Appeals. That being said, the CAV isn’t exactly a reversal factory, but this arrangement helps to explain why so few criminal cases make the merits argument docket for the Supreme Court.

Court of Appeals
This court, too, takes an unusual step today, granting en banc rehearing in a criminal case decided last month. Gilman v. Commonwealth involves a contempt of court conviction arising in juvenile court. Gilman appealed that to the circuit court, where the trial judge admitted the juvenile court judge’s certificate of conviction over her objection.

The certificate came in under a Code provision, §18.2-459, which specifically directs a lower court judge to prepare a certificate of the conviction that is then sent upstairs. According to the statute, the circuit court judge may then “hear the case upon the certificate and any legal testimony adduced on either side, and make such order therein as may seem to him proper.” Wait a minute, insisted Gilman; what about the Sixth Amendment? You know, that part where they give me the right to confront my accuser?

In the context of the US Supreme Court’s recent decision in Crawford v. Washington (“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”), this is a sticky issue. The juvenile court judge’s certification is undoubtedly “testimonial” in the sense that it is a recitation of facts to be used against the defendant. On the other hand, the lower court judge is unquestionably unavailable (one of the prerequisites to the application of Crawford is that the witness be unavailable at trial), given the Court of Appeals’ recent en banc opinion in Epps v. Commonwealth (holding that Code §19.2-271 forbids a judge from testifying as to any matter that came before her).

So where does this leave us? It left last month’s panel split, Judges McClanahan and Haley combining to outvote retired Judge Fitzpatrick. Now the full court will consider this thorny issue, to earn their pay.

Judicial personnel
About that pay. Some of you may regularly monitor appellate web sites, as I do. For the rest of you, those who have a life, I’ll tell you that the ether is still buzzing about the abrupt resignation of Fourth Circuit Judge Michael Luttig last week, to take a (presumably far more lucrative) position as an officer of The Boeing Company. My cyber-colleague at Have Opinion, Will Travel, an appellate judge himself, posted a very interesting inside glimpse into the mindset of the appellate jurist on May 12. Steve Minor at SW Virginia Law Blog added some interesting comments on May 10, and the news did not escape the notice of other sites across the nation; my pals at Appellate Law & Practice had this terse comment, also on May 10: “Now who will we get to explain how the executive can do whatever it wants?”

In truth, Judge Luttig didn’t always rubber-stamp the government’s wish list in the cases that came before him. Recently he raised more than a few eyebrows, and probably some blood pressures on Pennsylvania Avenue, with his biting rejection of the government’s effort to play hide-the-enemy-combatant with famed detainee Jose Padilla. It’s one thing, he reasoned, to ask the courts to sanction your efforts to fight a war; it’s quite another when you resort to subterfuge to get out from under a decision you don’t like.

I will not, as others have done, attempt to look behind his honor’s offered reasons for this career move; for someone of his intellect, a new challenge every fifteen years or so is not too much to ask. Nor is the prospect of increasing one’s income by, well, . . . let’s just say a multiple. The resignation does, however, leave the circuit troublingly understaffed; three vacancies have languished in Congress for some time now, and this move means that the Fourth is missing a fourth. The court now has twelve active judges. Aside from the caseload issues (which are themselves nothing to just shove aside), this move affects things as relatively mundane as rehearing petitions. Rule 35 permits rehearing upon the vote of a “majority of the circuit judges who are in regular active service and who are not disqualified . . .” At this point, it still takes seven affirmative votes to get a rehearing, but it’s seven out of twelve instead of out of thirteen. Of course, if a judge is disqualified, the requirement drops to just six votes.

Nor does the move leave the so-called most conservative court in the land leaderless. Unquestionably, Judge Luttig was a vocal standard-bearer for a conservative jurisprudential agenda. But the court is not exactly hurting for voices from the right; Judge Wilkinson is, in reality, more conservative than Judge Luttig, and as you will have noted if you’ve been reading carefully, a perfectly capable spokesman himself.

All of this matters for the simple reason that the Fourth matters, very much. Not just to us – the court of appeals is realistically the federal court of last resort here, given the Supreme Court’s cert rate of something around 1.5% — but to the nation. There is a reason why the government has brought its most high-profile cases to trial in the Eastern District of Virginia. The district, itself hardly a bastion of judicial liberalism, feeds directly into the highly conservative Fourth, a fact duly noted in a feature story on the court in the New York Times Magazine three years ago:

“. . . [I]t is true that the Fourth Circuit is the appellate court closest in thinking to the Rehnquist Court. But the relationship is symbiotic: the Fourth Circuit does not just imitate; it also initiates. It pushes the envelope, testing the boundaries of conservative doctrine . . .. Sometimes the Supreme Court reins in the Fourth Circuit, reversing its more experimental decisions, but it also upholds them or leaves them alone to become the law of the land.”

So here is the proving ground for the conservative element of our nation’s jurisprudence. And now, as noted above, a fourth of the Fourth is vacant, in part the victim of our nation’s decision to rein in not its legal doctrine but its judicial pay. Where once the prestige of the office proved irresistible, now practical constraints such as paying for college for two will make many jurists heed a tap on the shoulder from the private sector.

Health and happiness to you, Judge Luttig, my almost-classmate at U.Va. Law (he was Class of ’81, and I followed a year later). And good fortune to the Congress as it attempts to return the Fourth to its full complement of judges.