ANALYSIS OF JUNE 1, 2023 SUPREME COURT OPINION

(Posted June 1, 2023) New day, new month … new opinion! This morning the Supreme Court of Virginia hands down a published opinion plus a single unpub, just the second of those this year. Both rulings are in appeals argued during the April micro-session, meaning that the court has now decided all three appeals argued that month.

Criminal procedure

The published opinion comes in Walker v. Commonwealth, involving a prosecution for a bank robbery and associated charges. The robber entered a bank wearing a mask, and –

As an aside, you don’t have to think back too long to recall that if a guy entered a bank wearing a mask, all hell would break loose. Then for a time during the pandemic, if someone walked in without one, he got sideways looks as if to convey, ‘Smatter, Mac? You don’t have the good sense to mask up?

But let’s return to our tale, which actually predates the pandemic by several years. The masked robber displayed a gun and angrily demanded cash from several tellers. He got away with $15,000 in currency and stepped into the passenger seat of a white Acura, which sped off.

Alas for our hapless perpetrator, ensuing circumstances conspired against him. A concerned citizen at another bank received word of the suspicious activity and noticed a white Acura. That person notified police, providing a description that included the license plate. Alas, the car was registered to our appellant, Walker.

The bad news is just starting. The efficient thing about stealing currency is that it’s more portable than, say, a boatload of dimes of the same value. (Fans of Blazing Saddles and the William J. LePetomane Memorial Thruway are going to have to forgive me for the edit there.) The drawback is that banks wrap bills of a single denomination with identifiable wrappers that a bank manager initials, providing a handy way to identify specific bills.

Two days later, police stopped our familiar white Acura doing 91 mph in Maryland, where the speed limit is somewhat lower than that. The officers found a bag in the back seat with lots of currency, including a bunch of bills that were – uh-oh – still in wrapped, marked, and initialed packs. Walker, who was in the passenger seat at the time of the traffic stop, eventually “testified that he had no idea there was money in the car when it was pulled over in Maryland. He blamed the robbery on his brother.”

But prosecutors had done their homework, and they called one of the bank tellers at the jury trial. That teller told the jury that while the robber wore a mask, she got a good look at his eyes, from close enough that she could have reached out and touched him. She identified Walker as the robber.

To get to our first appellate issue, I need to backtrack just a bit. Walker, acting pro se with standby counsel, moved the circuit court in limine to exclude any in-court identification by a witness unless the court had first “vetted [the witness] in their ability to identify the suspect in a blind 6-man photo lineup with only their eyes showing, because the suspect wore a ski mask.” In my uneducated view – I don’t hold myself out as an expert of any degree in criminal cases – I’d say that that’s not bad for a pro se. The circuit court denied the motion.

On appeal, Walker (this time aided by highly capable appellate counsel) asked the justices to rule that the inherently suggestive nature of in-court identification requires a prior ruling by the trial judge that the evidence is trustworthy – essentially asking the court to impose a Daubert-like threshold finding by the trial court before the jury can hear this kind of evidence. The Supreme Court notes the genuine risks attendant to in-court identifications, but declines to impose such a requirement. Justice McCullough’s opinion for a unanimous court observes that Virginia thus joins the majority of courts that have ruled on this issue.

The foundation for such a holding is an imposing one – the Due Process Clause of the federal Constitution. (Virginia’s constitution contains a nearly identical clause, but a footnote tells us that the litigants here “do not ask us to construe that Clause.”) Ultimately, the court holds that the proper place to test the reliability of this kind of evidence is “the crucible of cross-examination.” That means that the jury itself is the proper body to determine the reliability of an identification. We have model jury instructions that can warn juries about the possibility of unreliable identifications, and the court today rules that this safeguard is sufficient.

In an unrelated finding, the court confirms that a defendant can suffer a “second or subsequent” conviction – here, the issue is firearm charges, with their mandatory minimums and enhanced sentences for second and subsequent convictions – even when the events happened all at once. The jury convicted Walker of multiple firearms offenses, one for each victim in the bank at the time.

Today’s opinion notes that someone who robs multiple people deserves a worse fate than a crook who robs only one. I’ll admit that it’s hard to argue with that conclusion, and prior caselaw seems to indicate that someone who commits a string of crimes in rapid sequence is indeed liable for multiple firearms offenses. Here, we see that even simultaneous events can justify “subsequent” convictions.

Here are a couple of items that caught my eye in today’s decision. First, in a couple of places, I thought I detected a surprising measure of scorn for the appellant. For one example, here’s part of the last paragraph of the facts section:

Walker offered alibi evidence from a “good friend” and five-time convicted felon, who testified that Walker worked on the moving job all day, from around noon to about 6:00 p.m. Walker himself testified to that effect. However, this evidence differed in a number of ways from the alibi he provided to a detective just days after the robbery. Walker also offered evidence from another convicted felon that a man named “Mike” may have committed the robbery.

As I see it, the entire alibi issue is a red herring in today’s analysis, which has little or nothing to do with the strength of Walker’s defense. Even if it’s more germane than I perceive, I can see little justification for including the felony history of the alibi witnesses, other than to convince the reader – and remember, this will enter the annals of Virginia Reports, so “the reader” means posterity – that Walker is guilty as charged, because his alibi evidence leaks like a ’73 Chevy Vega. If this were a harmless-error opinion, I might see the relevance; but as it stands, it looks merely inflammatory. So does the recitation on p. 5 that the motion in limine, seeking to exclude the in-court ID, was handwritten. That fact has no relevance to today’s discussion; it merely makes the defense look amateurish.

The other glaring aspect of this opinion comes in the passage on p. 14 in which the court rules that juries alone should have the power to decide what evidence is reliable:

Of course, a defendant can make use of the traditional safeguards of the right to counsel, the right to present evidence, and cross-examination to expose mistaken eyewitness testimony. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (concluding that “[t]he[ ] conventional devices” of “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence … rather than [its] wholesale exclusion.”).

Daubert? DAUBERT? Of all the case cites in all the courts in all the world, that one walks into mine …. The irony here is that while the opinion today cites Daubert for the premise that the opponent of challenged evidence can attack it in court, the major holding of Daubert is very different: It directs federal judges to assess the reliability of expert testimony before a jury can hear it, and to exclude it if the judge concludes that it’s unreliable. With this incongruous citation, the Virginia court, while attempting to extol the sanctity of trial by jury here, has embraced one of the primary federal anti-jury-trial decisions.