[Posted August 4, 2009] This morning, for just the second time since the General Assembly authorized writs of actual innocence, the Court of Appeals has issued such a writ, exonerating a former sailor of murder in a Virginia Beach case. Today’s opinion in Turner v. Commonwealth is the first time the court has issued such a writ over the Commonwealth’s objection (unlike last year’s writ in Copeland v. Commonwealth, in which the Commonwealth agreed to the issuance of the writ). I’ll post analysis here a bit later this afternoon, along with discussion of the three appeals decided today.

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The Turner case has been well-reported here in Tidewater, where the crime occurred. Turner was one of two aspiring Navy SEALs who were convicted of the 1995 abduction and murder of a college student from Georgia. The other defendant, Billy Joe Brown, had previously testified that he and Turner had acted in concert in the crime; years later, Brown recanted, saying that he had acted alone in the killing.

Turner filed this petition, seeking relief because the new evidence was not available to him during his trial. Pursuant to statute, the CAV remanded the matter to the trial court for a credibility determination of the recantation; the trial court conducted a hearing and found that Brown was truthfully acknowledging that Turner did not participate in the killing.

Despite this, the Commonwealth still fought the issuance of this writ. It contended that a rational trier of fact could have disbelieved Brown’s new statement. But the majority (Judge Elder and Senior Judge Coleman) today finds that argument to be, in a sense, procedurally barred; it rules that the trial court’s finding that Brown was credible cannot be second-guessed by the appellate court. Judging the remaining circumstances of the case, the majority concludes that no rational finder of fact could have concluded, beyond a reasonable doubt, that Turner was guilty of either murder or the predicate offense of abduction with intent to defile.

In dissent, Judge Powell argues that a jury could still, by disregarding the defense’s evidence, find that Turner participated in an abduction with intent to defile. The key to this issue is a very fine evidentiary point – whether the evidence could have established a “nefarious intent” (I’m quoting Judge Powell here) on Turner’s part to have sex with the victim against her will, in the event she resisted a request for consensual sex. The majority finds that that evidence falls short of what’s required, and chides the dissent for turning this into just another sufficiency-of-the-evidence analysis.

There is a procedural conundrum of sorts with regard to the relief to be granted. At trial, the jury had been instructed without objection that Turner could be convicted of being an accessory after the fact, as a lesser-included offense of murder. Guess what? Accessory-after-the-fact isn’t a lesser-included offense of murder; the Supreme Court has specifically so held. But because the parties agreed to this instruction, it’s the law of the case, and Turner now has to acknowledge that the evidence established that he was such an accessory.

The net effect of the issuance of today’s writ is that the convictions for murder and abduction are vacated, and the sentencing order is modified to the accessory charge. Since the maximum sentence for the accessory charge is one year in jail, and since Turner has spent 13 years in prison, he will be released unless the Commonwealth appeals.

One more procedural issue: Can the Commonwealth seek en banc rehearing in the Court of Appeals? Normally, the answer is yes; Rule 5A:34 says that any party “aggrieved by a decision of a panel” of the court can seek such rehearing. But wait; this isn’t an appeal, and the normal rules governing rehearings might not apply. This is an original proceeding, so we look to the provisions of Rule 5A:5. That rule provides, in pertinent part: “(12) The petitioner or the Commonwealth may petition for appeal to the Supreme Court from any adverse final decision issued by the Court of Appeals . . . to issue or deny a writ of actual innocence. Such an appeal shall be initiated by the filing of a notice of appeal pursuant to Rule 5:14.”

Remember the old rule of statutory construction that says that specific provisions govern over general ones? The rule on rehearings is general, but there is a specific provision for appeal of adverse rulings on these writs, and that rule mentions nothing whatsoever about en banc rehearings. Does that mean that the CAV will refuse to hear a petition for rehearing if the Commonwealth files one? Gee, how’s a guy to know? This is the first time the court has ever granted one of these things, so we’re sailing in uncharted waters.

As long as we’re on the subject of lesser-included offenses, let’s take up the short but very interesting ruling in Chibikom v. Commonwealth, involving a reckless-driving conviction.

One thing is clear: The driver was tooling down the highway at more than 80 miles an hour. Reckless driving by speed includes driving 20 or more miles per hour over the limit, or exceeding 80 in any speed zone, even the 65-mph zones that pervade rural Interstates. Since this case comes from Loudoun County, we know that the driver wasn’t on a rural Interstate (believe it or not, there are no Interstate highways in Loudoun County, although there are limited-access roads such as the Dulles Greenway). But 80 is 80, so the jury got to decide whether this was reckless driving or not.

The driver’s lawyer remembered to bring a proposed jury instruction for the lesser-included offense of improper driving. The Code specifically provides that when the defendant is charged with reckless, “where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving.” This matters, a lot, because a reckless conviction is absolute death to your auto insurance premiums, not to mention six points on your driving record.

The driver’s attorney asked the judge to instruct the jury that it could find the driver guilty of improper if it wanted to do so. To his probable surprise, he heard the prosecutor object, claiming that improper isn’t a lesser-included offense of reckless by speed, since the “degree of culpability” is irrelevant; there is a great beauty to mathematics, but also a savage ruthlessness to it when thresholds are involved. Either you exceeded 80, or you didn’t, the prosecutor argued, and the trial court agreed. No instruction, and no reduction, either, as the jury convicted the driver of reckless.

On appeal, the CAV begins by noting that by definition, a lesser-included offense must be violated whenever the greater offense is violated. That isn’t the case here (see the above philosophical musings about math for the reason why). In addition, the statute specifically gives “the court” the right to make the reduction, “in its discretion.” That means that such a reduction isn’t permitted for juries. The CAV even cites several statutes in which the General Assembly has consigned to juries similar powers to reduce penalties, and needless to say, that language isn’t present in this statute. In the end, the court affirms the conviction, and hones the body of caselaw on this often-visited area of the law.

Domestic relations
If you had peeked in my office within the past 20 minutes or so, you’d have seen me standing and cheering while reading de Haan v. de Haan. Okay; metaphorically cheering. But for appellate lawyers, decisions on finality are always welcome, and the court issues a stern sermon on the topic today.

For my whole career, I have practiced in the Tidewater area. I seldom go up into the wilds of the State of Northern Virginia. If I want utterly stalled traffic, I can get that by staying here in the southeastern corner of the state. If I want suburban sprawl, well, . . . I can get that here, too. But one effect of my provincialism is that I have never had to deal with the arcane docket control system in the Fairfax Circuit Court. Apparently, judicial business is so brisk up there that divorce litigants have taken to commissioning private judges to adjudicate their disputes in a timely manner. The practice is specifically sanctioned by statute; here’s the short text of Code §17.1-109: “Any cause pending in a circuit court, when the judge of the court is disqualified or unable for any reason to try the same, may be tried by a judge pro tempore who shall be a citizen of this Commonwealth and shall be licensed to practice law in this Commonwealth.”

(Here, then, is a way for a lawyer to become a judge without going through all that politics stuff: You find some prospective divorcees, impatiently tapping their toes while waiting for justice, and you offer to handle the matter for them. The statute says nothing about compensation, so I infer that that can be negotiated and paid privately. Is this a great country, or what?)

But I digress. Here, husband and wife secured the appointment of a lawyer as a judge pro tempore to decide the issues in their divorce. The new jurist issued some rulings and withheld others, claiming that resolution of them was premature. But he issued a custody order that looked pretty darned final, awarding custody of the kids to wife, and declining to prevent her from moving from Fairfax down here to Tidewater. (Sorry you didn’t get any traffic relief, Ma’am.) Husband decided that he couldn’t live with a couple of those rulings. He tried to get one of the duly-constituted Fairfax Circuit Court judges to review the pro tem judge’s rulings, but that judge wouldn’t touch the matter, since “This has been decided.”

With the rest of the case proceeding at a glacial pace, father decided to seek review of the final rulings in the Court of Appeals. (Note that unlike criminal and traffic cases, CAV review of domestic relations rulings is of right.) He filed an appeal challenging those rulings, and the trial court understandably stayed further proceedings in the case pending the outcome of the appeal.

Well, after all that waiting, the parties are no closer to a resolution than they were a year ago, when the judge pro tem entered his semi-final order. That’s because the appellate court dismisses the appeal for want of appellate jurisdiction.

Appellate courts have sharply limited jurisdiction. Primarily, they hear appeals of final judgments in civil and criminal cases. They can also hear a very few appeals of interlocutory rulings. The court rules today that the issues raised here aren’t among those very few exceptions to the finality requirement, and that the case still belongs in the trial court until it can crank out a final decree that resolves all of the issues in the case.

Today’s opinion gives a number of citations that explain why appellate jurisdiction should be thus limited, but it really comes down to efficiency and the avoidance of delay. There’s a great quote in there (one I plan to steal shamelessly for heart-to-heart talks with hopeful appellants in smaller cases) from the Supreme Court back in ‘77, describing an appeal as an “expensive remedy.” (By the way, that’s 1877.) The opinion cites examples of premature appeals where the trial court went to great lengths to ensure appealability – stopping just short of writing “THIS IS A FINAL ORDER, BY GOD” with a red Sharpie across the top of every page – only to be told that the order isn’t final, and that trial courts can’t convert an interlocutory order into a final one just by calling it final. Appellate jurisdiction doesn’t work that way, and cannot be conferred by waiver or by consent.

As an appellate guy, I have been heartened to see so many decisions on finality in recent months. The Supreme Court has issued three this year, including the seminal rulings in Comcast of Chesterfield v. Chesterfield County and Seguin v. Northrop Grumman. I hold out hope that the message of these cases will spread far and wide to the corners of the Commonwealth, so the finality doctrine will be better understood. But I’m skeptical. Here, by the way, is a rule of thumb to help determine finality: If the trial court has any decisions left to make, or anything left to do other than ensure compliance with its orders, then the case isn’t final and aggrieved parties can’t appeal yet. That’s a rough guide – to get the full story, you need to read the cases – but it should help litigants and trial courts to understand this important concept.

Workers’ compensation
The final opinion of the day comes as at least a bit of a surprise to me. James City County Fire Dep’t v. Smith involves a 62-year-old man who worked fire and rescue calls for the county. He retired under a disability in December 2006, due to a cardiac condition. His doctor told him to avoid work that entailed stress or hazardous situations.

Smith filed this claim for benefits in October 2006. The following July, he got a notice of a deputy-commissioner’s hearing on the case, including the county’s suggestion that he had failed to market his residual employment capacity. A week before the hearing, he got a part-time job with a sign company, evidently paying very little.

At the hearing, Smith described his effort to find suitable work. He said he had applied for two jobs and had gone to the VEC’s web site to seek employment. Other than that, he explained, he had “spoke[n] with a ‘few here and there just putting feelers out just trying to find – and going through newspapers looking at ads . . . .’”

The deputy commissioner figured that that was good enough, and the commission agreed that Smith had made a sufficient effort to find suitable replacement work. Now, I mentioned at the outset that this case was a bit of a surprise; here it is: The Court of Appeals reverses this finding, saying that there was no evidentiary support for the commission’s conclusion.

Why is that out of the ordinary? Because the question of whether the employee has sufficiently marketed residual employment capacity is – no question about it – one of fact, not one of law. Ordinarily, the appellate courts don’t touch the commission’s factual findings; even today’s opinion recites familiar caselaw with this ominous language: “An award by the Commission is conclusive and binding as to all questions of fact.”

Well, if it’s “conclusive,” then how on earth do you reverse it? The court does so by concluding that, as a matter of law, this smokeater didn’t do much of anything until just before the hearing drew nigh. Go back to the beginning of this essay and check; he filed the claim in October 2006, and only got a job a week before the hearing, more than a year after he applied for benefits. That looks to the court an awful lot like – perhaps I should say, conclusively like – he only got started on his search when the legal posture of the case made it urgent to do so. By waiting that long, the court finds, he unreasonably limited the kind of jobs he might find to those few that happened to be open during his very narrow window.

My sense is this: If I were deciding the matter as one of first impression, I would probably agree with the appellate court. It looks for all the world like Smith really did sit back and wait for the employment crisis to arise. But viewing the matter on appeal? Where you have to afford that much deference to the factfinder, it’s hard for me to say that there’s no way that factfinder could possibly have come to that conclusion. (That being said, today’s ruling is unanimous, so even if I had a vote, the result would still be the same.)