ANALYSIS OF MARCH 24, 2020 CAV OPINIONS

(Posted March 24, 2020) How about a normalcy break? Let’s take a look at a couple of published opinions handed down by the Court of Appeals of Virginia this morning, both in criminal-law appeals.

The court addresses just when enough really is enough in Walker v. Commonwealth, an appeal of convictions on various violent sex offenses. After being indicted, Walker asked for a court-appointed lawyer. The circuit court appointed two counsel from the Public Defender’s Office for that purpose, but inside three months, they sought leave to withdraw. They explained that, among other things, Walker had stated an intention to file Bar complaints against them.

Experienced criminal-defense lawyers may see what’s coming here. The court relieved the PDs and appointed another lawyer. That relationship soured, too, resulting in another withdrawal and another appointment. This troubling pattern recurred again and again, as Walker experienced – or, reading between the lines, manufactured – conflicts with one lawyer after another. In all, the court appointed eight separate counsel (counting the original two PDs as one) before informing Walker that he had waived his Sixth Amendment right. The trial had been continued 30 times by this point.

Walker ended up representing himself at a jury trial that, predictably, did not go well for him. When he indicated a desire to appeal, the court appointed a ninth lawyer to handle that. Somehow, that relationship survived all the way to today’s opinion.

Judge Russell writes for a unanimous panel that affirms the convictions. The court respects the sanctity of the Sixth Amendment right to counsel, but cites prior holdings that a defendant can waive that right by engaging in the kind of abusive behavior that the circuit court found here. Walker’s conduct, the CAV agrees, “was part of a dilatory strategy and represented an abuse, not an assertion, of the Sixth Amendment guarantee.”

A couple of closing notes: I felt relief when I saw that Walker’s final lawyer, my colleague in the appellate bar Charles Haden, hadn’t been fired. Then I remembered that Walker still can appeal onward to the Supreme Court of Virginia, so Charles’s labors, and his risk of a frivolous Bar complaint, may not be at an end.

If you’ve ever met Judge Russell, you’ll know that he has a wry sense of humor. I can only imagine the degree to which he self-censored what he wanted to write in today’s opinion. This is one of the great advantages that I have over the Robes: Nobody tells me what I can’t write here.

On to today’s other opinion, a short decision that arose in my hometown of Virginia Beach. Our fair city has an ordinance that makes it a Class 1 misdemeanor for a citizen to fail to identify himself to a uniformed police officer. The ordinance applies “if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.” Back in the medieval period when I worked at City Hall, I occasionally prosecuted violations of this ordinance when a defendant appealed to circuit court from a GDC conviction.

I usually felt uneasy about this charge, and even that leaves aside the patent sexism in the language – the views of a reasonable woman are apparently immaterial. My concern then was that the public-safety risk seemed entirely subjective despite what should be an objective standard, and the ordinance was thus susceptible of abuse by a police officer who had had enough with an uncooperative suspect.

The Court of Appeals takes up this ordinance today in Herrington v. Virginia Beach. A police officer answered a call that two homeless people were begging customers for money, and wouldn’t leave the gas-station premises. He arrived and found two men meeting the given description. They stood off to themselves at the back of the property.

The officer approached the two and asked for identification. One man complied, but the other, who turned out to be Herrington, refused. When the officer asked again, Herrington …

Okay, you’re probably not going to believe this, but he cited Terry v. Ohio and Miranda v. Arizona as reasons why he didn’t have to identify himself. Really, he did. I found myself admiring him as I read today’s tale.

The officer, since joined by a backup, sensed an odor of alcohol and slurred speech – two more all-too-subjective signs – and arrested Herrington for being drunk in public. During the search incident to arrest, he discovered Herrington’s ID.

At trial, Herrington argued that, while he genuinely refused to provide ID, there was nothing about the surrounding circumstances that compelled him to do so, or that justified his arrest. The trial judge felt otherwise and convicted him, but a CAV writ panel decided to look into the case.

The Court of Appeals today reverses the conviction and dismisses the indictment. In doing so, it finds nothing about the surrounding circumstances that made the identification essential. Herrington posed no danger to the officers or himself. The court rejects the City’s contention that a need to identify arises whenever an officer suspects that someone may have committed a crime.

Virginia Beach’s ordinance is by no means unique; today’s opinion notes two instances in which the Court of Appeals has been called upon to review convictions like this one. The judges don’t find the ordinance unconstitutional on its face, so it can remain on the books for use in a proper case. But they’ve signaled that they won’t accept that the circumstances require identification merely because an officer says so.