ANALYSIS OF JUNE 10, 2008 CAV OPINIONS

[Posted June 10, 2008] The Court of Appeals of Virginia hands down three published opinions today. The court also grants en banc rehearing in the contempt case of Scialdone v. Commonwealth (plus two consolidated companion cases), decided April 29. The court won’t convene for en banc arguments until October, so it’ll be a while before that case gets resolved at this level. My earlier analysis of the April ruling is here.

Criminal law
Hopson v. Commonwealth probably doesn’t break any new legal ground, but it’s always good to get additional guidance on challenges for cause to veniremen, which is the only issue in today’s opinion.

The judge who presided at this manslaughter trial must have been a man of prodigious patience. He permitted the defense lawyer to engage in a lengthy voir dire that most other judges I know would have cut off. The questions included lengthy hypotheticals and a few “gotcha” questions that were ostensibly designed to awaken the potential jurors to a subliminal bias against criminal defendants. For example, he asked the venire, “Do you think Mr. Hopson is guilty?” He gave them three choices: Guilty, not guilty, or “I don’t know.” The venire unanimously went for the last choice, but then he told them that the correct answer was not guilty, citing the presumption of innocence.

[Memo to self – Never, ever try this kind of tactic in federal court.]

There was some colloquy between the lawyer and the veniremen on this and other questions, after which the prosecutor undertook to rehabilitate some of them by eliciting promises that they could understand and obey the trial court’s instructions on things like presumption of innocence and the defendant’s right to choose not to testify. The trial court struck two of the veniremen for cause, but Hopson objected to its refusal to strike six others, and that’s the sole basis of this appeal.

The Court of Appeals rules today that there was no error in leaving the six veniremen on the panel. It notes that even where, for example, a prospective juror says she would take the stand herself if she were accused of a crime, such a response doesn’t disqualify her if she agrees to follow the judge’s instructions at trial.

One other approach goes down in particularly spectacular fashion. The lawyer posited a situation where Junior comes home with a bad-boy note from school, but in response to the parent’s questioning, the kid clams up and invokes his Fifth Amendment right not to speak. The lawyer then asks the venire to “Raise your hand if you’re not putting up with that at home.” Of course not, the venire answers. How, then, the lawyer the retorts, “could you possibly put up with that in a trial?”

Unfortunately for Hopson, the author of today’s unanimous opinion is smarter than he is. Judge Kelsey responds, “The answer is too plain to say. Because the defendant in not my schoolboy son, and the courtroom is not my home.”

[Second memo to self – Keep a copy of this opinion handy, in case my daughter gets any Fifth Amendment ideas in Civics class, and tries to use them around the house.]

The issues in today’s other criminal decision, Podracky v. Commonwealth, are nowhere near as clear, and today’s opinion is a difficult read. Podracky was prosecuted for “using a communications system to solicit a person he knew or had reason to know was a minor for certain sexual offenses.” The issue here is a facial challenge to that statute.

I have read this opinion twice now, and have come to the conclusion that unless my analysis is to be longer than the opinion (12 pages), I will have to discuss the issues decided in summary fashion. Accordingly:

• The court assumes without deciding that Podracky has standing to make a facial challenge to the statute. In doing so, it refers to the recent Supreme Court decision in Jaynes v. Commonwealth, involving a facial challenge to Virginia’s anti-spam statute. I mention that because the Supreme Court granted rehearing in Jaynes, and reheard those arguments last week.
• The statute isn’t facially overbroad under the First Amendment. Remember the difference between a facial challenge and an as-applied challenge. A facial challenge means the defendant thinks the statute is unconstitutional in the abstract, without regard to his particular set of circumstances. The other type of challenge asserts that the application of the statute to this defendant is unconstitutional. (To give you a crude example, a city council can implement reasonable restrictions on the right of citizens to speak at council meetings. You can’t speak out of turn, for example, or go on for hours and hours. But if the council used that policy to deny anyone who isn’t a Christian from addressing the body, then that restriction would be unconstitutional as applied to a Jewish speaker.)
• Hobson thought he was sending his little naughtygrams to a 16-year-old girl. In fact, he was sending them to a very adult police detective who was posing as the girl in an Internet chat room. He contended that what he did wasn’t, in fact, criminal, because he wasn’t sending anything naughty to a juvenile. The court finds that this raises an issue of “factual impossibility,” and under well-established precedent, that gets him nowhere. (If it were legal impossibility, then he’d be on solid ground; you can’t, for example, be convicted of felonious attempted singing badly, since singing badly isn’t a crime. We’ll leave my opinion of Stevie Nicks’ vocal ability out of this discussion, to avoid any possible defamation concerns.)

Domestic relations
There’s a short opinion today in Gooch v. Harris, on adoption. The child in this case was demonstrably in need of a different set of parents – so the trial court found, with the father in prison for the long haul and the mother a drug user. The child’s great-great aunt and uncle filed an adoption petition, and the trial court granted it, finding that the adoption was in the best interest of the child. The mother appealed, contending that the trial court never found that it would be detrimental to the child not to order the adoption.

The trouble with this contention, the Court of Appeals rules today, is that it’s been superseded by statute. Once upon a time (and as recently as 2006), adoption law did require a finding of detriment. But that year, the General Assembly amended the statute, so that it now requires only a best-interests finding. That’s exactly what the trial court did, so the judgment in favor of the aunt and uncle is affirmed.

In my view, the only reason why this opinion is published is to highlight to practitioners and trial courts the new statutory provision.