[Posted February 28, 2012] Do you like fireworks? No, not that kind; you’ll have to wait until early July to see those. This is an appellate website, and I’m referring, of course, to the kind of fireworks we see in divided appellate opinions. There are plenty of pyrotechnics in today’s en banc ruling in Henderson v. Commonwealth. I covered this case when it was decided at the panel stage back in June, so instead of replowing all that ground today, I’ll just give you this link so you can see my earlier analysis. (You may – ahem! – accidentally see my correct prognostication of en banc review of last June’s decision.)

Last year, a divided panel voted to reverse the judgment and send the case back. That panel majority, Judges Humphreys and Alston, maintains its belief that Henderson should get relief here. The panel’s dissenter, Judge Haley, gets lots and lots of company today, as all seven of the other participating members of the court (Judge McCullough doesn’t take part, presumably because the case was originally argued last year while he was in the Attorney General’s Office) join in making this an 8-2 vote to affirm the trial court’s decision to reimpose a substantial suspended prison term.

As I noted last year, there are often lots of goblins in the footnotes of appellate decisions, and that’s true of today’s opinion; if you want, you can have a pretty good time skipping the main text and just reading the footnotes, where Judges Haley and Humphreys trade barbs. The majority’s primary barb is in footnote 5, where it concludes that the primary issue in the case wasn’t properly preserved for appellate review. This single footnote occupies more than two pages of the slip opinion – and this is single-spacing, folks – and includes a finding that the issue wasn’t even the subject of an assignment of error: “The dissent maintains the trial court erred for a reason not presented to the trial court for consideration, not assigned as error, and unsupported on brief before this Court by any authority, that is, a failure to enunciate a finding of good cause.” It concludes with this jab at the dissent: “Finally, while respecting the dissent’s argument concerning the non-existence of good cause, the majority, also reasonable jurists, differs, and finds that good cause did exist for admission of the challenged testimony.”

Ouch! Of course, Judge Humphreys isn’t afraid to give as much as he gets, at one point referring to the majority opinion’s “’kitchen sink’ approach”; although in my view he doesn’t rise to Judge Haley’s level of shrillness. Indeed, two members of the court, Judges Petty and Elder, concur but decline to embrace the harshness of Judge Haley’s language in footnote 5. My primary surprise is that there aren’t more names behind that concurrence.

I’ll be candid here: I haven’t read all the background caselaw, and I certainly don’t have the portions of the record to which the opinions allude, so I can’t offer a definitive opinion as to which side has the better of the argument. This is clearly a complex case with complex legal issues, and I know better than to go spouting off on such things. But taking a step back, let’s consider the policy aspect of this dispute.

The dissent contends that Virginia courts should adopt a balancing test to determine whether good cause exists to excuse the Commonwealth from producing live witnesses in probation proceedings. While these proceedings certainly aren’t trials, and the two sides agree that Sixth Amendment analysis doesn’t apply, isn’t there an interest in ensuring that someone will be put away for many ears based on evidence that can at least be tested? Ideally, yes; otherwise, a vindictive witness could generate a fictitious affidavit to send someone up the river (actually, back up the river) without fear of having to be cross-examined. From a purely philosophical perspective, I find myself agreeing with the dissent here; even convicted felons should be afforded this basic level of Due Process.

Of course, the majority finds that Henderson got all the process he was due. The issue is therefore settled, at least pending a petition for a writ upstairs.