[Posted August 30, 2011] Following up on yesterday’s post, here’s a report on today’s lone published opinion from the Court of Appeals. It, too, is a criminal appeal, and again, the defense comes up empty, completing a clean sweep for the Attorney General’s Office in the month of August. This one contains a couple of very important rulings that go beyond the circumstances of this case.

Flanagan v. Commonwealth involves a guy with a deep, burning sense of curiosity. He read about bombings in London a few years back, and heard that it’s possible to make explosives like the one used there with commonly available materials. He decided to find out – purely as a matter of intellectual curiosity, unless you believe the prosecution – and so he started buying the ingredients. I’m not going to give you the formula, because I don’t want any of my readers to succumb to the same temptation and rely on this website for the recipe; but it’s stuff like hydrogen peroxide.

The experiment was a success. Flanagan found out that he could produce a powdery or crystalline substance described as TATP, which is highly volatile, to the point that it can be set off with static electricity or even friction. In case you’re expecting this story to end in a mushroom cloud somewhere, be assured that it doesn’t; the authorities managed to grab the substance before somebody could set it off just by sneezing loudly nearby. They were apparently alerted to the concoction by a couple of Flanagan’s employees who quit when they realized that theirs was apparently not as safe a workplace as they’d thought. When the FBI and local officers arrived with a search warrant, Flanagan blithely pointed them directly to what they were looking for, adding that he wasn’t trying to destroy anything, but “he just liked to hear things go boom.”

Virginia law proscribes the possession of materials from which explosives can be made; it’s the same statute that forbids ordinary citizens to possess bombs. There’s an exemption where such possession is “solely for scientific research [or] educational purposes.” It also helpfully excludes fireworks. Flanagan was indicted, and before trial, he moved to dismiss the indictment, claiming that the statute was void for vagueness. The trial court denied the motion and convened a trial, which resulted in a hung jury and a mistrial. On retrial, Flanagan was convicted. In order to lock down the vagueness issue for appellate purposes, he renewed the argument in a post-verdict motion, but the court denied that, too.

One of the major lessons for this case is the question of whether the vagueness issue is teed up for appeal. Let’s review: Flanagan argued it and lost it before the first trial. After he got convicted, he raised the issue again. He lost again. Note that this wasn’t a matter of the judge taking an argument under advisement and then allowing it to die of malnutrition. Flanagan actually got rulings on the merits, albeit not the rulings he wanted.

It may surprise you to learn that the CAV regards this issue as procedurally defaulted under Rule 5A:18. The reason is a trap that may ensnare many criminal-defense practitioners, even the wary ones: A mistrial requires the parties to start over. Not just to the beginning of the trial; it wipes out all pretrial rulings the court has made, so a defendant has to renew his arguments. To be sure, the trial court can enter an order that reaffirms for purposes of the retrial all the orders it previously entered, but unless it does that, the defense must renew its previous motions; otherwise, they’re waived for appellate review.

In case you think this is a brand-new trap that the CAV panel created simply to frustrate Flanagan’s appeal, you should know that the Supreme Court crafted this doctrine in a 2004 capital-murder opinion, Elliott v. Commonwealth, accepting positions taken by a couple of federal courts in other parts of the country. The CAV’s ruling thus firmly comports with existing Virginia law.

And yet it troubles me to find this obscure doctrine. This holding in Elliott has, as well as I can tell, been cited only three times before today. The first was in Elliott’s subsequent habeas proceeding, and then it was only to recite the fact that the Supreme Court made the ruling in the direct appeal. The other two are in unpublished CAV panel decisions. That brings us to today, where Mr. Flanagan’s unfortunate experience at least serves as a wake-up call to the criminal-defense bar.

Why is this troublesome? I can understand that this procedural bar would apply to something like evidentiary rulings or other in-trial matters; those arise in the course of each given trial, and no two trials are exactly alike. But in this instance, we’re talking about a pretrial ruling on a matter of pure law – whether a given statute is void for vagueness – and the trial court made a definitive ruling in the intermediate course of the prosecution. I know of no good reason why that ruling, made before any trial but clearly during the course of the proceedings against Flanagan, should not remain the court’s ruling throughout the rest of the case, even on retrial. Yes, it would have been best for Flanagan’s lawyer to raise the issue again before the second trial (or at least within 21 days after the sentencing order). But this doctrine appears to me to be an instance where a hard case – and Elliott’s capital-murder prosecution emphatically was a hard one – makes bad law.

What about the post-trial ruling? Flanagan moved the court to set aside the verdict after Trial #2. Alas; that motion was filed on the 22nd day after the sentencing order was entered, so the trial court had no authority to grant the relief requested.

There’s one other important ruling here, relating to the scientific-or-educational provision in the statute. Flanagan argued that the prosecution never established that his possession was not for such a purpose, so he contended that it denied him of due process to convict him without proof of a necessary element. The trial court held that that was an affirmative defense, so Flanagan had the burden to establish at least enough evidence to create a reasonable doubt. The Court of Appeals affirms that ruling today, concluding based on solid principles of statutory construction that this is indeed an affirmative defense. The exemption language is in a wholly separate paragraph from the proscription language, and this information isn’t something the Commonwealth would be expected to know anyway; it’s purely within the defendant’s personal knowledge.