[Posted November 2, 2007] This is the day criminal practitioners in Virginia have been waiting for; the Supreme Court, concluding its November session, hands down 16 published opinions, most of which are in criminal cases from the Court of Appeals. If you practice in the field of criminal law, on either side of the aisle, carb up and get ready to start reading. In one of the non-criminal cases, we see the extraordinary development of the removal of a sitting judge from office.

In addition to the published opinions, there are four cases decided by unpublished order, and three more are carried over to the January session, with a presumptive decision date of January 11, 2008. For those of you following the celebrated case of Jaynes v. Commonwealth, implicating Virginia’s anti-spamming law, you’ll have to wait, as this is one of the cases that are being held until January.

Today’s rulings reflect a remarkable degree of accord among the justices. Even with some hotly disputed issues, 14 of the 16 rulings are unanimous, and there is a concurrence in one of the others. Only one decision produces a dissenting opinion.

Criminal law
The Commonwealth is in the unusual (though by no means unheard of) position of being the appellant in a criminal case today, in Commonwealth v. Juares, involving an alleged ex parte contact between a juror and court personnel. Juares was arrested on suspicion of aggravated sexual battery. He spoke only very limited English, so a deputy sheriff who was fluent in Spanish agreed to serve as translator. But when the deputy acknowledged that his translation wasn’t perfect, the defense sought and obtained the court’s permission to have a court-appointed translator listen to the audiotape and prepare a translation.

At trial, as the tape was played for the jury, the court-appointed translator gave oral testimony of the English content of Juares’s statement. The jury then retired to deliberate. During deliberations, a juror asked an unidentified member of the court staff (presumptively the bailiff) if they could have an interpreter (and I infer that this means they wanted one in the jury room with them). The staff member told them that no such translator would be provided. He or she didn’t tell the judge about the inquiry. The jury convicted Juares, but before sentencing, his lawyer learned about the contact with the juror.

Juares moved for a mistrial, but the trial judge refused, noting that nothing substantive had been communicated. Today’s opinion doesn’t say so, but evidently the court felt that this was no more prejudicial than, “Are we going to break for lunch?” The Court of Appeals, however, disagreed, and it reversed the conviction. Citing precedent that any ex parte contact with a juror is presumptively prejudicial, it found that the burden wasn’t on Juares to show the trial court that he was prejudiced; it was on the Commonwealth to show that there was no prejudice.

Now it’s the Commonwealth’s turn to appeal. Today, the Supreme Court reverses and reinstates the conviction. It acknowledges the presumption applied by the CAV, but points out that the presumption only kicks in when the subject of the communication is “about the matter pending before the jury.” The court rules today that this inquiry was on an administrative detail, not about guilt or innocence. In that event, it really was Juares’s burden to show prejudice, and the court has little difficulty in concluding that he didn’t do that. It rejects one potentially intriguing argument, that the refusal of the interpreter was an implied endorsement of the reliability of the in-court translation, as being without merit. My sense is that this was a nice try by the defense lawyer, but on this record, it was too much of a stretch for the court.

The court releases two short opinions, both authored by Justice Lemons, that deal with ancillary terms added onto criminal convictions. The first, Howell v. Commonwealth, started with the burglary of an office building in Roanoke on Thanksgiving, 2004. The bad guy got away with “a computer, two printers, calculators, an ‘open’ sign, and a number of smaller items.” The good news for the victims, a tax preparation firm, was that the police got the guy. The bad news is that they felt so insecure afterward that they went out and plunked down $1,040 for a new security system.

The inveterate punster in me absolutely must stop here and point out that a tax service paid exactly $1040 for something. For those of you who don’t immediately recognize the irony of that figure, trust me; you will, in April.

Back to our story: The trial court convicted the burglar and sentenced him to various prison terms for burglary and grand larceny, plus an unrelated robbery. Doing the math, I come up with 16 years to serve. The court added a requirement of restitution in the amount of $1,399, which included the cost of the new security system. With all that time hanging over his head, you may or may not be surprised to learn that the burglar appealed the imposition of the restitution. (In fairness to the burglar, he may well have assigned error to a lot more than that, but this is the only assignment of error on which the court awarded an appeal.)

For procedure geeks – and I use that term lovingly, considering I’m one of them – this is a very interesting issue. The Supreme Court rules that the general rules that apply to restitution don’t permit a victim’s lot to be “enhanced” in this way. Basically, the victims should be made whole, but not given a brand-new security system as a consolation prize for having been burgled. The court finds the nexus between the loss and the subsequent purchase to be too tenuous, and since courts can’t include consequential damages (as they would be called in a contract case) in restitution, this small aspect of the overall sentence is reversed.

One other aside comment. If you took the time to do the math, you’ll figure out that all of those other items the burglar took – the computer, the printers, etc. – must have aggregated to just $359 in value. They must be using some pretty old computers there (or more likely, some of those stolen items were recovered and returned). It might have occurred to the victims to seek the money for a badly needed upgrade of their computing system, but they evidently had the good sense not to get greedy. Given the overwhelming likelihood of the burglar’s limited earning capacity over the next 16 years, the tax guys probably shouldn’t sit by their mailbox looking for a check, anyway.

The second of these cases presents a familiar situation – in Martin v. Commonwealth, Martin got pulled over for a burned-out tail light on his car. When asked for his license, he just shrugged. There was a good reason for the shrug, the officer soon discovered – Martin had been adjudicated a habitual offender several years past, and the Commonwealth had tagged him with personal service of the adjudication. This is starting to look bad. The trial court hit him with five years in prison, but suspended 42 months on various conditions. One of the conditions presents the basis of today’s appeal: Martin was required to register for child support for one of his children (basically, to “turn himself in” to DCSE).

Perhaps anticipating Justice Lemons’s conclusion in the Howell case, Martin argued that child support had nothing whatsoever to do with a driving offense; he appealed the DCSE requirement. Today, the Supreme Court reaches the opposite conclusion, ruling that this is a perfectly permissible term for the suspension of a prison sentence. Why the completely opposite result? Simple; there’s a statute that makes child support an acceptable term of probation. While you and I may agree that child support and traffic crimes are not related, the General Assembly has rendered them so. This time, the condition gets affirmed.

There’s an interesting wrinkle in Meeks v. Commonwealth, a credit card theft case from northern Virginia. As far as the theft is concerned, you’ll have to admit, they got Meeks, red-handed. On the very day on which a mental health worker’s wallet turned up missing, Meeks used one of the credit cards in it to check herself into a hotel and get the princely sum of $20 as a cash advance. The opinion doesn’t describe the investigation in great detail, but it shows that the police nabbed her the next day at the hotel. It looks to me as though she did everything short of leaving a trail of bread crumbs.

The wrinkle is something that shows up fairly seldom in criminal cases: Venue. The wallet was lifted in Fairfax County; the trial was held in the Alexandria Circuit Court. Meeks got charged with both credit card theft (for taking the card) and credit card fraud (for using it), but she argued that only the latter of those events had taken place in Alexandria, where the hotel was located. In rejecting this defense, the trial court relied upon a 1974 Supreme Court case in which the court held that retention of a stolen card was an act in furtherance of the theft. That means that every day she kept the card, Meeks committed another act in furtherance of credit card theft, thus bestowing the Alexandria courts with the authority to hear the case.

The problem with that, Meeks argued in the Supreme Court, is that it means that every jurisdiction through which a defendant travels conveys proper venue authority upon the courts of that city or county. That argument pays off today, as the Supreme Court reverses not only Meeks’s conviction, but also the 1974 case. It holds that retention is no longer an element of the crime of credit card theft. A theft is a complete offense when the thief takes possession, and since that happened in Fairfax, the Alexandria court was the wrong place to try her on this count. The fraud charge, by the way, was not in issue in this appeal.

The court announces two interesting cases today that implicate sentencing phases of criminal trials. The longer of these is Alston v. Commonwealth, a voluntary manslaughter case in which a jury recommended a three-year prison term. The trial judge followed that recommendation and imposed the prison term, then added the mandatory period of post-release supervision. By statute, the judge got to choose a term anywhere between six months and three years; he chose three years.

This last ruling spurred today’s appeal. Citing the US Supreme Court’s recent celebrated sentencing rulings (Apprendi, Blakely, and Booker), Alston argued that the trial judge should not have added this term, since all such matters had to be settled by the jury. This argument gets him nowhere today, because of a colloquy at sentencing between Alston’s lawyer and the judge. The lawyer asked the judge to set forth any facts upon which he relied in imposing the post-release supervision. It is possible to view this question as a very subtle trap laid by the lawyer, though I have no idea whether he had this in mind or not; if the judge had answered with Facts A, B, and C, then the case is set up perfectly for an Apprendi appeal, since the jury has to make all factual findings under the Sixth Amendment. But if this was a trap, the judge disarmed it by pointing to the guilty verdict form and saying that’s all he needed.

That proves to be the correct answer, according to today’s ruling. The judge had no discretion on whether to impose a term of supervision, so the decision to impose it required no facts at all beyond the conviction. Pursuant to statute, the judge did have discretion on how long the supervision should be, but he selected a time that was within the permissible range. And the two terms (3 years in prison plus 3 years supervision) add up to less than the statutory maximum of ten years for this offense, so Alston isn’t going anywhere with an excessive imprisonment argument, except to prison.

The next sentencing decision lays down a very important rule regarding admissibility of scientific evidence in the sentencing phase. In Billups v. Commonwealth, Billups was convicted of two counts of forcible sodomy of a juvenile under 13, and one count of soliciting. Before sentencing, the trial court ordered psychosexual testing, including a plesythmography. (You’ll have to excuse my imperfect typing from this point forward; my computer’s spell checker just had a heart attack.) A plesythmograph is analogous to a lie detector that was used to detect “deviant sexual arousal” by measuring blood flow through Billups’s penis while he was shown sexual photographic images. (Now the civil libertarians among my audience, not to mention a few blue-haired little old ladies, are having the heart attacks.) A positive test result is considered a reliable indicator of sexual recidivism.

Ironically, the trial court ordered any actual polygraph test results to be struck from the presentence report, but he agreed to consider the results of the plesythmograph test. At the sentencing hearing, the test results showed Billups to be “in the highest re-offense risk category.” The judge gave him two life terms.

On appeal to the Court of Appeals, Billups pointed out that the trial court had received no scientific evidence of the reliability of the plesythmograph, so it was, in his view, just another inadmissible lie detector test. The Court of Appeals rejected that, pointing to the “relaxed standard of admissibility” that applies in sentencing hearings. As long as the machine has some indicia of reliability, then it’s okay to report the results. Billups had not introduced any evidence that it wasn’t reliable, so the trial judge had the discretion to consider it.

The Supreme Court begs to differ. In a 1990 case, the court determined that scientific evidence must be preceded by “a threshold finding of fact with respect to the reliability of the scientific method offered,” subject to three exceptions. [If you’re keeping score, the exceptions are (A) an obviously reliable test, such as fingerprints; (B) an obviously unreliable test, such as polygraphs; and (C) a test that’s specifically sanctioned by statute, such as BAC testing. None of those exceptions applied here.] The Commonwealth had not, in fact, offered any expert testimony on the reliability of the plesythmograph, and the Court of Appeals wrongly placed the burden upon Billups to prove its unreliability, instead of placing it on the proponent to prove reliability. That means the trial court erred in admitting the evidence without such expert foundation.

This is about the closest the Supreme Court will come to grafting a Daubert test from the federal system into Virginia jurisprudence. In order to get a scientific test into evidence, a proponent (and this applies to civil cases as well as criminal prosecutions, so you civil practitioners need to pay attention here) must enable the trial judge to make that “threshold finding of fact” relating to reliability. Failing that, the test results aren’t admissible.

The court unanimously reverses and remands for resentencing, but there is the hint of disagreement here; two justices (Justice Kinser, joined by Justice Agee) file a concurring opinion. They maintain that there really is a “relaxed standard of admissibility” in sentencing phases. They argue that the court need not reach the question of whether the threshold-finding rule applies in sentencing proceedings.

The concurrence also points out one important point that the majority does not address: What happens on remand? The concurring justices regard the admissibility question as dead and gone; since the Commonwealth didn’t adduce evidence of reliability the first time around, this remand should not be an opportunity for them to correct that mistake and get the evidence in on remand. The fact that the majority is silent on this point may well embolden the Commonwealth to try to offer an expert witness on the reliability of the test, so it can get the results in anyway. My sense is that Billups should be able to resist such an effort, and should be resentenced without the test results being considered, but that’s not a detail that we’re likely to find out at the appellate level.

There’s also one other practical matter for resentencing. For that, I take my readers back to my favorite lawyer movie, Anatomy of a Murder (1959). (My favorite trial movie, 12 Angry Men (1957), actually has no lawyers in it.) When a criminal defense lawyer (played magnificently by Jimmy Stewart) loses a ruling, and the judge admonishes the jury to disregard what it has heard, the defendant, an Army lieutenant charged with homicide (played by Ben Gazzara) whispers, “How can a jury disregard what it’s already heard?” The attorney whispers the response that every trial lawyer knows to be true: “They can’t, Lieutenant.” So how does even a judge disregard what he knows about Billups’s probability of recidivism? We entrust judges to do that all the time in bench trials, so it’s essentially presumed in our jurisprudence that a judge will disregard inadmissible material. So what happens if the same judge hands down the same sentence on remand? The answer, in my view, is that Billups is probably out of luck; it will be impossible to prove on appeal that the judge considered any inadmissible material.

Criminal practitioners know this next statute well, but we get an important refinement today in Jackson v. Commonwealth. The “DUI-drugs” statute prohibits operating a motor vehicle while “under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature . . .” So what about drugs that someone else administers? Does the first clause of that quote criminalize such conduct, irrespective of the separate second section, or must all DUI-drug prosecution be based on self-administered drugs only?

Jackson came to the Lynchburg hospital in the wee hours of one June morning in 2005, complaining of unspecified pain. The doctors gave him a strong analgesic, and another drug that was designed to keep the analgesic from nauseating him. After a nurse administered the drugs to him, and before she let him go, she told Jackson the drugs would make him drowsy and asked him if he had a ride home. “Sure,” he lied (or so you will probably infer from today’s opinion). Less than 30 minutes after his release from the hospital, he wrapped his car around a telephone pole. That brought him back to the same hospital, and eventually got him charged with DUI-drugs.

The trial court and the Court of Appeals listened, unimpressed, to his arguments that these were not “self-administered” drugs; he claimed that he had had a very nice professional lady do the honors for him, so he couldn’t be convicted of anything based on “self-administered” drugs. The trial court evidently ruled that he cold be prosecuted for operating under the influence of “any narcotic drug” without resort to the rest of the statute. The Court of Appeals affirmed in an unpublished opinion. Jackson then tried the Supreme Court, his final chance. It pays off.

The court today finds that the statute has to be read in its entirety, without disregarding phrases. The phrase, “any narcotic drug or other self-administered intoxicant or drug of other nature” means that the modifier “self-administered” applies to all such drugs. Accordingly, Jackson’s conviction has to be reversed, since he didn’t have any “self-administered” drugs in his system.

In case you’re wondering, the answer is yes; I do indeed expect someone in the 2008 General Assembly to introduce legislation to criminalize behavior like Jackson’s. (I also expect similar corrective legislation on the plesymograph, probably designed to put it on a par with a BAC test machine. I offer no odds on whether either such bill will succeed.)

Believe it or not, the term “common scheme or plan,” so familiar to attorneys handling criminal litigation, has never been authoritatively defined in Virginia before now. We get a definition (sort of) today, in Scott v. Commonwealth.

When Virginia Beach police officers stopped Scott for a traffic violation and found out who they had, they figured they’d hit the crook lottery. They eventually tied him to a string of robberies in that city in early 2003. In each of the instances, the robber accosted victims late at night, either just after they stepped out of their cars or were in their garages. The robber, a black male, always used a gun and usually demanded from the victims a PIN for use with a credit or ATM card. These crimes took place over a three month period.

With all those similarities, the Commonwealth undertook to try Scott for all of the crimes at once. Since he didn’t consent to joinder, the Commonwealth had to show that the robberies were part of a common scheme or plan, under Rule 3A:6(b). The trial court found these similarities sufficiently striking that it ordered a single trial for all charges, at which Scott was convicted and sentenced to prison for a total if 253 years. The Court of Appeals ruled that the trial court acted within its discretion in convening a single trial.

The Supreme Court, in analyzing the case, notes that it needed to address just what constitutes a common scheme or plan. It notes that a common scheme is not the same thing as a common plan. The scheme part refers to an idiosyncratic method used by the perpetrator, while a common plan requires that the prosecution show that the crimes were committed for the same specific purpose. The Court of Appeals had based its ruling on the “common scheme” aspect of the cases, finding the similarities were enough to justify a single trial. The Supreme Court disagrees today, noting that these circumstances amount to only “a general similarity of manner” in the crimes, not the sort of idiosyncratic method that would justify joinder.

The court next determines that there was no evidence offered to prove a common plan; again, there is only a series of offenses “bearing a general similarity to one another.” I suppose one could say that the common plan was to raise funds for the use of the robber, but we can probably agree that that’s far too vague; if that were true, any two robberies or larcenies could be combined on the barest of prosecutorial assertions.

The result of today’s ruling is that the convictions and sentences are reversed, and Scott heads back to the Beach to face a series of separate trials (or at least as many as it takes to get him sent away for the rest of his life expectancy). Based on his positive identification by several of the victims, it seems likely that he won’t be seeing the outside of a prison for a while, but he gets a reprieve from this ultra-long sentence.

The court addresses an appeal with an intriguing assignment of error in a criminal case, whether the Commonwealth may use a subsequent criminal act to impeach a defendant who testifies. Today’s ruling is McGowan v. Commonwealth.

McGowan found herself in custody on charges of distributing crack cocaine in Hampton. The offense occurred on March 4, 2004, when she sold two rocks of crack to an undercover policeman through an intermediary who shuttled back and forth between McGowan and the cop. But the officer didn’t bust her then and there; the Commonwealth waited until July to arrest her, pursuant to a subsequent indictment. When she was searched incident to the arrest, she did an unusual thing, as recounted in today’s opinion: She “turned her back, reached down into her bra and handed [the Detective] two items wrapped in small pieces of plastic.” These two items turned out to be – surprise! – crack cocaine.

Of course, this is a separate offense, for which she can be independently prosecuted. But first, we have to get the trial on the March offense out of the way. At that jury trial, McGowan did something that comparatively few criminal defendants do – she took the witness stand, raised her right hand, and started answering her lawyer’s questions, denying her guilt in the process. The prosecutor was probably salivating when it came time for him to cross-examine. One of his zingers was about her knowledge of crack. She responded that she “sure wouldn’t” know crack cocaine if she saw it.

Uh-oh. You know what’s coming next. The prosecutor asked about those two little packages that she so cheerfully handed over when she was arrested. The defense lawyer objected, but the trial court permitted the questioning to continue. McGowan denied that she had possessed crack when she was arrested in July, after which the arresting detective was only too happy to describe the July events, and the result of the subsequent chemical analysis. The jury unsurprisingly found McGowan guilty.

The case then went to the Court of Appeals, where a divided panel affirmed. That court then granted en banc rehearing, and this time, a VERY divided court, by a 6-5 margin, also affirmed. With this much appellate support for her position, McGowan did the sensible thing; she moved on to the Supreme Court for one more try. (I almost typed in “one more crack at it,” but there are limits to even my punning.)

Today, the Supreme Court unanimously reverses the conviction and remands the case for a new trial. It finds that the subject of the later arrest was entirely collateral to this trial, so injecting that issue into this case was impermissible to set up the defendant for impeachment. Interestingly, if a cross-examiner wants to start out on this tack, it’s not entirely forbidden, but the well-established rule is that the cross-examiner must take whatever answer is given. That means that it was okay for the prosecutor to ask whether McGowan had cocaine when she was arrested, but when she said no, the prosecutor was not entitled to put on contradictory evidence.

This might surprise some of my readers. If McGowan really was lying to the jury about the July event, shouldn’t the jury know about that in assessing her credibility? The answer is no, because of the courts’ careful approach to “other bad acts” evidence in criminal cases. Such evidence inherently contains great danger for prejudice outweighing any probative value. And allowing this approach would enable a prosecutor to set up a “straw man” issue that doesn’t relate to the subject of the current prosecution, and then knock it down in order to score impermissible points with the jury.

The final criminal opinion of the day (well, only if you line them up this way) is Perez v. Commonwealth, which answers the question of whether an undated juvenile adjudication order can serve as the foundation for a prior offense.

Shortly after midnight on September 14, 2004, Perez looked in his rear view mirror, and probably swore under his breath to see the red flashing lights of a police car. It was just a burned-out bulb on his license plate, but there was the little matter of the handgun under the front seat, not to mention his prior felony adjudication. So he did the only thing he could think up, on what must have been very short notice: He gave the police someone else’s name.

Now, if you’re hunting around for sensible advice on how to break the law, I’m probably not a good resource for you. I have been a good boy for long enough that I don’t know many sophisticated ways in which you can break the law and get away with it. But this case offers one good, solid idea: If you’re going to impersonate someone, pick someone reputable. Perez hadn’t considered this advice, so he gave the policeman the name of someone (evidently an acquaintance) who had three felony convictions. Three felonies plus one gun equals the right to remain silent, which Perez promptly enjoyed.

At the magistrate’s office, Perez decided to come clean (since his initial attempt at fraud hadn’t fared so well) and give his real name. That at least got him away from the three felonies, but he still faced gun-possession-by-a-felon charges. The Commonwealth based its claim of prior conviction on a juvenile court order in a prior case involving grand larceny and burglary. But there were a couple of problems with the order. First, the petitions purported to originate in the “Woodbridge Juvenile and Domestic Relations District Court.” The problem with that is that there is no such court; Woodbridge is in Prince William County, and doesn’t have its own court. Second, the adjudication is from the Fairfax JDR court – now how did it get over there from Woodbridge? Third, although the order was filled out and signed by a judge, it was undated.

With this many anomalies, Perez challenged the use of the order to prove that he had been adjudicated not innocent of an offense that would be a felony if committed by an adult. The trial court and the Court of Appeals both thought that the juvenile order was sufficient, but Perez got a writ from the Supreme Court to review the case. Looking at the order in its entirety, and pointing to several indicia of genuineness, the court today finds that it is sufficient to establish the fact of a prior conviction, and affirms.

This case produces the lone dissent of the day. Justice Koontz, citing the court’s recent decision in Overbey v. Commonwealth, 271 Va. 231 (2006), argues that the many “holes” in this order render it incapable of constituting proof beyond a reasonable doubt of the fact of the prior conviction. He recites a number of possible scenarios, each consistent with the document in its flawed state, that could lead to a plausible conclusion that no final not-innocent adjudication was rendered. Among his arguments, he notes that the juvenile judge could have left the date off in order to postpone a final decision on the merits of the case. But he has no allies on the court in this position.

Judicial discipline
The prospect of a formal complaint against a sitting judge is both newsworthy for its rarity and, for those of us in the legal profession, very disquieting. The common view of a judge is that of a learned, experienced person of sound character; wise, dignified, and even-handed. I could add several other laudable adjectives to that list, and you would recognize and approve them all. The community has chosen to endow judges with a great deal of power, and trusts in each judge’s discretion to use that power sensibly and wisely.

In the overwhelming majority of cases, judges fully justify that decision, and that trust. Stories about judges straying from these characteristics are out there, but they are thankfully rare. Today’s ruling in JIRC v. Shull gives court watchers an unpleasant glimpse into the rare instance in which that delegation proves to have been improvidently made.

The judge in this case had seen the inside of a JIRC hearing room before. He was brought up on charges in 2004, when he was evidently new to the bench, for demeaning a 14-year-old boy in a case before him. The judge on that occasion had referred to the boy, evidently a complaining witness in a juvenile assault case, as a “mama’s boy,” a “wuss,” and . . . well, and more. He also admittedly advised a domestic violence complainant that she could stop the abuse by marrying the abuser. The Commission on that occasion decided not to sanction the judge, but let it go at a warning.

If you fast-forward to early 2007, you’ll see how ineffective that warning proved to be. Today’s opinion relates testimony of several witnesses in detail (this is one of the very few instances in which the Supreme Court’s original jurisdiction makes the justices the factfinders), and I won’t recite all the competing testimony here. In sum, the court finds that the judge (1) refused a domestic violence complainant’s request for a continuance so she could get an attorney; (2) directed her to lower her pants in open court so he could see an alleged wound on her thigh; (3) rebuked her request not to be forced to disrobe in open court; and (4) looked on while she did as he directed, not once but twice, thereby exposing herself to several persons in the courtroom. (I will ask you to accept my representation here that the brevity of my summary actually detracts from the power of the accusation that the full story would compel. It’s bad; very bad.) The court also finds that the judge made a private phone call in chambers to a clinic, in an attempt to ascertain the truth of a disputed assertion, thereby discarding the parties’ right to cross-examine the recipient of the phone call. Finally, the Supreme Court accepts the judge’s admission that he twice flipped a coin in open court to decide a contested child visitation issue in another case.

Is that enough for you? It was enough for the Supreme Court; given the options of censure and removal from office, the court today unanimously chooses the latter, and orders the judge’s immediate removal from office.

Today’s ruling won’t have a great deal of precedential value – thankfully – since these cases are so very rare. In the event a future complaint lands another judge in the uncomfortable seat before the high court, then the court may turn to today’s opinion for guidance. But the better use of this decision is as a warning to other judges, to those very few who might be tempted to abuse their judicial power. There are very, very few judicial discipline cases, reflecting that judges overwhelmingly do their jobs in a way that justifies the use of the term, “your Honor.” When one of the robes strays like this, there is a certain man-bites-dog quality about it, but also a damaging blow to the public’s image of the judicial system.

In Virginia, when the clerk of a court delivers a writ of fieri facias to a sheriff, that act creates a lien against all property of the debtor within the jurisdiction. The question in Marcus, Santoro & Kozak v. Wu is whether that doctrine applies to funds held by a law firm in trust for its client, the judgment debtor.

Stanley Tseng owed Hung-Lin Wu and his companies a lot of money – close to $20 million in all, according to today’s opinion. Wu got judgments in Florida for that amount, and set out after Tseng in Virginia. Tseng hired two prominent Tidewater law firms to represent him and his companies, respectively, with regard to the collection efforts. He paid the firms retainers totaling $280,000, from which the firms peeled off accrued legal fees on a monthly basis.

On October 7, Wu got the Virginia Beach Circuit Court Clerk to deliver a fi fa to the sheriff. He served copies on both law firms the same day. If you think that stopped the gradual depletion of the trust funds for legal billings, you’re wrong; the firms kept paying themselves for their work, because the fi fa had not been served on their client, Tseng. Later, Wu obtained garnishment summonses, and eventually served those on the law firms and upon Tseng. At that point, the firms paid what was left into court and sought dismissal of the garnishment. Between October 7 and this point, some $95,000 had been moved from the firms’ trust accounts to their operating accounts. But Wu wanted it all, so the fight was on.

The statute on fi fa writs unquestionably creates that lien from the moment the sheriff gets the writ; the question is whether a companion statute required service on the debtor before the lien was effective against the firms. They both claimed that the terms of the companion statute applied to their holdings, since each was “a person making a payment to the judgment debtor.” The condensed versions of their arguments are (1) their relationship with Tseng was founded in contract, not in trust; and (2) since they only had contractual obligations to Tseng, the lien couldn’t reach the funds.

The trial court found this latter code section inapplicable, since well-ingrained caselaw holds that an attorney really does occupy a fiduciary relationship with respect to funds held in trust accounts. That is, the law firms weren’t just another pair of creditors; they were shepherds of the client’s assets, and liable for the incorrect disposition of those funds. Today, the Supreme Court affirms this ruling, and finds that the first statute, but not the second, applies to this situation, so the law firms must refund the $95,000 and pay it to Wu.

This case settles the question of whether a creditor can seize funds being held in his opponent’s lawyer’s escrow account. It also defines the point at which such a lien becomes effective, by classifying the law firms’ relationship with their client in accordance with previous caselaw.

Easily the longest opinion of the day, at 41 pages, is Little v. Cooke, a derivative suit brought by several limited partners against an attorney who was effectively functioning as the sole general partner of a real estate investment partnership. I will confess that as I read the factual recitation, I was both astonished and borderline angry that a member of the bar would handle any matter in the fashion described here. But the issues in this appeal do not focus on whether the attorney’s actions were wrongful; he essentially conceded as much in the wake of the trial court’s finding, and admitted at trial that several of his actions were improper. Today’s opinion is about damages, and just how much the partnership can recover from the attorney.

I’ll give you the Reader’s Digest version of the partners’ allegations: Self-dealing; failure to keep clients informed; taking ill-advised actions hastily, after learning that he might be replaced as trustee; double-billing; and basically costing the partners a gob of money in unnecessary taxes. Trust me; that’s the sanitized version. The trial court clobbered the lawyer, awarding $3.1 million in damages, plus attorney’s fees and costs, after issuing a detailed opinion that set forth its factual findings.

In the end, the lawyer gets substantial relief on appeal, as the Supreme Court reverses the lion’s share (but not all) of the damage award. There are several categories of rulings, and it occurs to me that the simplest way to convey the message of this case is to summarize the lessons from today’s opinion. Here they are:

— The damages that may be awarded in a partnership derivative suit flow to the partnership, not to the partners. Accordingly, since the tax bills would have been borne by the partners, they have no claim in this type of suit for what amounts to jacking up their personal income tax liability by an improvident sale of the partnership’s principal asset. (This ruling alone saves the attorney $2.3 million.)

— In order to recover a given category of damages, a plaintiff must first plead them with reasonable specificity. Here, the partners tried to prove that the lawyer had overcharged them by about $18,000 – small change, considering the magnitude of the rest of the claims – by helping himself to inflated legal fees from the partnership’s cash account. They proved those overcharges to the trial court’s satisfaction, but they had not identified such a claim either in pleadings or in their discovery responses. The Supreme Court reverses the trial court’s award on this item, reinforcing its commitment to prevent trial by ambush.

— Attorney’s fees recovered by a successful plaintiff in a derivative suit (and the partners did win some of their claims, so they are in fact the prevailing parties) must be paid to the partnership, not to the individual partners. The Supreme Court doesn’t fuss with the award of fees, but orders that it be paid from the common fund recovered by the partnership, instead of directly by the attorney. This ruling saves the attorney over $700,000. The court acknowledges the American Rule, which requires that each party pay its own lawyer, and explains the common fund exception to that rule, but finds that because of a statute, the individual plaintiffs can’t get a separate award.

— Ruling on an assignment of cross-error, the court refuses to enhance the partners’ damages by the amount at which the real property was allegedly “under-sold” by the lawyer, in his haste to get rid of it before he could be fired. In this regard, there is a vitally important lesson for those litigating cases in which property or business valuations are offered into evidence. Because of the trial lawyer’s great bugaboo, the law of the case doctrine, the date of the breach of the attorney’s duty was October 16, 2002, which was the date on which the attorney notified the partners that he had contracted to sell the property. (This date could well have been challenged, but no one objected to the trial judge’s factual finding that this was the date of breach.) The partners offered two appraisals of its value, one as of January 30, 2003 (the date of the actual conveyance, roughly 3 ½ months later) and one as of June 30, 2005 (almost three years later, but closer to the trial date). Both of those figures were substantially higher than the sale price for which the attorney conveyed the property. The trial court had rejected the sufficiency of this proof, and the Supreme Court agrees. Note that the court rejects a valuation that is just 3 ½ months away for the “correct” date. The vital lesson is that lawyers who try similar cases will want to be aware of the Supreme Court’s admonition that the January fair market value was “irrelevant” to the amount of damages on the correct date. If you’re securing an appraisal, you need to make very sure that you select the right date; being in the ballpark may not be enough.

The court also remands an award of punitive damages, not reversing it entirely, but directing the trial court to recalculate it for proportionality to the newly reduced compensatory award.

Habeas corpus
Today’s lone habeas decision is Davis v. Johnson, an ineffective assistance case in a prosecution for cocaine distribution. Davis pleaded guilty to the charges and then, in a procedure familiar to many prosecutors, filed a petition for a writ of habeas corpus in which he asserted that his lawyer insufficiently prepared for trial and improperly advised him to plead guilty. But he didn’t stop there; he threw in several claims of prosecutorial and even judicial misconduct. There were 18 counts in all.

The Commonwealth responded to the petition by denying most of the allegations, but it admitted that one of them formed the basis for a writ: The denial of Davis’s right to appeal. The Commonwealth conceded that Davis should receive leave to file a delayed appeal, and the trial court granted that. But it simultaneously dismissed all of the remaining claims, with prejudice. Davis argued in vain that the dismissal should be without prejudice, citing a 2004 Supreme Court ruling that held that, in instances like this, such dismissals should not bar a subsequent filing. Davis took his case to the Supreme Court, which gave him a writ.

The court finds today that the 2004 case gave trial courts the discretion to dismiss claims without prejudice, but does not mandate that result. Instead, the trial judge is expected to exercise that discretion, and should evaluate the underlying claims to see if they are “insufficient . . . or . . . procedurally barred as a matter of law.” If they are, then it’s okay to dismiss them with prejudice. That’s what happens here, so Davis loses this round.

But that’s not the end of the game, the court notes; that only gets the case into the ninth inning. Davis’s lawyer was smart enough to add an appellate challenge to the manner in which the trial court had exercised its discretion, contending that Davis had alleged sufficient facts to get to trial on the merits, if the case had gone on to trial. In reading today’s opinion, I found myself mentally jumping ahead to the conclusion, where the Supreme Court would reverse the case, concluding that Davis did, at a minimum, state a claim for which relief could be granted, and accordingly preserved his other claims to litigate on another day.

But alas for Davis, that promising argument dies as a result of a vexing procedural default that has snared many other appellant litigants. The trial court had based its ruling on two alternative grounds, and Davis had challenged only one of those. In the other one, the trial judge noted that Davis’s current allegations were wholly inconsistent with what he had assured the court during the sentencing colloquy. (“Are you satisfied with your lawyer?” “Yes, sir.” “Has he explained to you the consequences of pleading guilty?” “Yes, sir.” etc.) That finding rested undisturbed in Davis’s appellate briefs.

The Supreme Court has consistently enforced the requirement that alternative findings must each be addressed in any appeal. If not, the court will simply assume that the unchallenged finding is a sufficient basis to support the judgment, and refuse to consider the other one. That’s what happens today. The net result is that Davis gets his direct appeal, but loses his ineffective assistance habeas challenge for good.

By the way, if you’re thinking that this ruling constitutes a finding by the Supreme Court that a defendant who answers all of the sentencing colloquy questions in a predictable manner can never bring an ineffective assistance claim, you’d be mistaken. The court makes no such finding today, and indeed, I doubt that the court would ultimately rule in that way in a proper case. Today’s holding merely notes that Davis did not challenge the trial court’s finding. It is eminently foreseeable to me that a habeas petitioner could bring a successful challenge to a guilty plea in which his lawyer told him to answer the judge’s questions in a certain way, or else, and the hapless defendant went along out of ignorance and in reliance on the lawyer’s advice. But as we have seen, that wasn’t before the court in this case.

Medical malpractice
The topic of expert testimony gets an important explication today in Dagner v. Anderson, a wrongful death case arising in Farmville. Dagner was an insulin-dependent diabetic who came into the hospital emergency room one night after having been found unconscious in her apartment, evidently in hypoglycemic shock. The ambulance crew had revived her on the way in, by giving her an injection of glucagon.

In the emergency room, the doctor noted that she had a BAC of .24% (lawyers who handle DUI cases will immediately recognize that she had had a great deal to drink). He instructed her that she should go home, eat a snack, and rest. Citing the dangers of combining alcohol with insulin, he also warned her that she “should never drink [alcohol] again.” As we will see, she took his advice, though tragically not in the way he had intended.

Dagner was discharged from the emergency room less than 90 minutes after she arrived. The discharge nurse called Dagner’s daughter to pick her up (obviously, no one wanted to see a .24 behind the wheel), but the daughter said she couldn’t come until the next morning. Without anyone telling the doctor, Dagner then was left unattended in the waiting room for eight hours. When someone finally checked on her, she was found to be comatose and unresponsive, with a critically low blood sugar level. She was admitted to the hospital immediately, but never came out of her coma before dying three months later.

The subsequent medical malpractice trial focused on whether the doctor should have recognized the danger of releasing Dagner without further treatment. The estate contended that the death was brought on by a diabetic seizure. The doctor responded with expert testimony from an emergency room doctor who contended that the cause was more probably alcohol withdrawal syndrome. (The admissibility of the latter testimony is the heart of the appeal.) Considering these competing theories, the jury sided with the doctor and returned a defense verdict, from which the estate appeals.

There are two issues in today’s ruling. The first is that the trial court did not abuse its discretion in permitting testimony about Dagner’s alcohol use. The estate contended that such evidence was more prejudicial than probative, but the court finds that the evidence was the core of the defense’s case. If alcohol withdrawal syndrome really did cause this death, and if (as the doctor contended) a seizure from it really was unforeseeable, then the doctor was not negligent. The doctor thus wins this round.

The next round goes to the estate. The expert witness certainly seemed to be competent to testify about emergency room procedures and the applicable standard of care. But the defense also succeeded in qualifying him to testify as to causation, despite his own reticence when questioned about that. He acknowledged that, although he had seen several cases of seizures from alcohol withdrawal syndrome per year, he was not an expert in multifactorial causes of brain injuries; you’d need something like a neurologist for that.

This evidence, the Supreme Court rules, crosses the line, and mandates a new trial. An expert can only testify as to matters within his expertise, and while this one could certainly tell the jury about what should go on in ER, that’s about as far as he can go. The court notes that the goal of emergency care is “to stabilize the patient, not to provide long term care.”

So, where do we go from here? At the new trial, may the defense call a neurologist to offer the same opinions as to the cause of Dagner’s seizure? The answer, I believe, is yes. But this time, a new jury will be called upon to decide the issue, and this time around, each side’s lawyer will have a more enlightened perspective on how the trial will play out.

One last note here: As it customarily does, the court declines to address several evidentiary assignments of error, observing in a footnote that “the evidence in the new trial will likely be of a different quality and nature.” The court then lists three specific issues that it declines to decide on that basis. One of those, the use of Dagner’s medical records to support the defense expert’s views on causation, is obviously irrelevant now, since this expert won’t be permitted to testify on retrial. But the other two evidentiary issues seem to me to have been ripe for decision, at least to guide the parties and the trial court on retrial. The first of those is evidence of Dagner’s noncompliance with her diabetes treatment plans. The second is whether Dr. Anderson may tell the jury about uncorroborated statements from Dagner, in violation of the Dead Man’s Act.

Please note that I’m not saying that the evidence should or should not be admissible; I don’t know. I’m suggesting that the court could and should have given the trial court direction today on whether these matters are material to the case. In my presentations to appellate lawyers on crafting assignments of error, I always advise that fewer assignments are better than more, with only two exceptions. The first is in criminal cases, where the appellate lawyer must raise every issue that might support reversal, if only in order to preserve the defendant’s habeas rights. The other one applies here: If the trial court makes an evidentiary or legal ruling that you can’t live with, and you’re seeking a new trial, then you must assign error to that ruling, or it becomes the law of the case. Here, the estate’s lawyer did the right thing, so none of these previous rulings will be binding on the parties on retrial, but in my view the Supreme Court could have removed any doubt about the issue, and possibly avoided a subsequent appeal after the retrial.



[Posted November 12, 2007] Besides the above sixteen published opinions handed down by the Supreme Court on November 2, 2007, you may not know about four other decisions that came down that day. Like many other rulings, these four were adjudicated by unpublished orders, none of which will appear in Virginia Reports.

When the court decides a case by unpublished order, that usually reflects the justices’ perception that the case breaks no new legal ground, and the holdings are adequately covered by existing caselaw. It does not indicate that the cases aren’t interesting, and this batch shows that some fairly hot issues can get resolved outside the usual glare of opinion day.

This is the second time that Baumann v. Capozio has appeared before the state’s highest court. The first time, it produced a published opinion, at 269 Va. 356 (2005). Baumann was still (just barely) a juvenile when he sustained personal injuries at the hands of Capozio in a fistfight. His parents brought a next-friend suit in which they sought damages on his behalf. But when the 17-year-old became an 18-year-old, he accepted the insurance company’s offer to settle all his claims, despite his parents’ vehement objections. (This must have produced some fairly interesting dinner table conversations.) The 2005 decision acknowledged that he could, indeed, do that once he reached the age of majority, but it reversed the trial court’s dismissal of the parents’ separate claim for his medical expenses, and returned that to the circuit court for trial.

This time around, the defense admitted that the bills (over $22,000) were reasonable and necessary, and that Capozio had caused the injuries. The single defense was that of release; the newly-minted adult had signed a release of all of his claims, and Capozio now contended that that had necessarily included the claim for medicals. The trial judge elected to let the jury resolve it, and the verdict was for the defense. The parents appealed again.

The Supreme Court takes the extremely unusual step of reversing a judgment that is in conformity with the jury verdict. It finds that the son’s release could not discharge Capozio’s liability for his parents’ separate medicals claims. Their damage claim belongs to them, not their son; absent any proof that they authorized him to execute a release on their behalf, they aren’t bound by it. Finding no dispute in the record as to any material fact, the court directs that judgment be entered in favor of the parents for the amount of the bills.

I can’t be sure, but I’m guessing that this is a Pyrrhic victory for the parents. In the end, they won $22,000, but they had to go through a jury trial and two appeals in order to get to that point. I don’t know what kind of fee agreement they had with their attorney, but if he charged by the hour, then the only people who thrived in this case were the lawyers on both sides. (Well, of course, there’s Junior; he got a cool $75,000 for getting the stuffin’ beat out of him. If he shared this bounty with his parents, then maybe they didn’t come out quite so badly.)

Criminal law
Can you obstruct a witness after the witness has left the witness stand? How about after the jury verdict is in? We get a truncated answer to that question in Selph v. Commonwealth. The short (1 ½ pages) order doesn’t list the facts in detail, but we can guess from the question presented. In answering it in the negative, the court refers us back to a case it decided just this past April, Washington v. Commonwealth, 273 Va. 619 (2007), in which it found that obstructing a law enforcement officer in the performance of his duties requires some proof that the officer was, well, . . . performing some sort of duties. Once a witness has finished testifying, then she’s no longer “lawfully engaged in the discharge of” her duty, so the conviction is reversed.

The next case deals with an imbalance of information. In civil cases, both sides have access to the same information about veniremen, which is usually almost nothing, and so they both grope around in the dark during voir dire to find impartial citizens whom they figure will be partial to their own sides. But in a criminal prosecution, the government often – no; usually – has vastly more access to information about the citizens who will comprise the jury than will the defense. In Shaw v. Commonwealth, the defendant hollered about that imbalance, and the Supreme Court paid attention long enough to grant him a writ.

Shaw’s lawyer made a Batson challenge to certain peremptory strikes exercised by the prosecution. The prosecutor calmly responded that he had based some of his challenges on “arrest records and other information gathered from police sources.” Shaw responded that the government hadn’t given him any of this information, so it was unfair for the prosecution to continue in this fashion. The trial court, unmoved by this appeal to “fundamental fairness,” let the show go on; it led inexorably to a guilty verdict and a lengthy prison sentence.

On appeal, the court decides, anticlimactically, that Shaw did not adequately preserve in the trial court the arguments he wanted to make upstairs. At trial, he had argued that the information on veniremen was “exculpatory” (my sense of this one is, “Nice try, Shaw, but no dice”), but in the Supreme Court he raised a constitutional challenge. Following Rule 5:25 carefully, as it always does, the court rules that this argument has been waived for appeal. We are thus left to find out another day whether a citation to “fundamental fairness” instead of to a constitutional, statutory, or common law authority will support a reversal.

Habeas corpus
As faithful readers of this site will recall, I’m a hockey fan, and something of a purist, so I don’t go to hockey games in hopes that a fight will break out. I know that other fans, bloodthirstier than I, do just that. In the same vein, I suppose there may be some courtwatchers who read the opinions with a secret desire to see a legal scrap break out. If so, they’ll enjoy reading Bazemore v. Director, Department of Corrections, which produces the biggest controversy of the day, in a day that had seen only one dissent among the published opinions.

This is an ineffective assistance case. Bazemore was convicted of felony eluding and of second degree murder while eluding. The Code requires proof that the defendant’s conduct was willful and wanton before the defendant can be convicted. But both the indictment and the jury instructions in the case used the disjunctive instead of the conjunctive – “willful or wanton.” This, you will readily understand, is a big deal; willful simply means that you meant to do something, while wanton generally implicates far more significant behavior.

Bazemore’s trial lawyer didn’t notice the mistake, in either the indictment or the instruction. This, you will agree, was a significant error. Bazemore accordingly filed a habeas petition under Strickland v. Washington, 466 US 668 (1984). Strickland requires that the petitioner show two things: (1) His lawyer’s performance was seriously deficient, and (2) he was prejudiced as a result.

In analyzing this claim, the court jumps right to the second step. I don’t know whether that’s for judicial economy, or to avoid unnecessarily stepping on some fragile egos belonging to lawyers (I strongly suspect the former), but that practice is often employed in these cases. Four of the justices find that Bazemore had shown no prejudice, because the evidence of his guilt was “ample.” The majority concludes that this was not a structural error in the proceedings, so harmless error analysis can be employed, and accordingly scotches this petition. They find that a jury that had been properly instructed would have reached the same ultimate conclusion.

But three of the justices see things altogether differently. Justice Koontz, joined by the chief justice and Justice Keenan, point out, among other things, that Bazemore was charged with and convicted of a nonexistent offense. (You have to admit that, as an opening salvo, this one is fairly persuasive.) The dissent agrees that the evidence of Bazemore’s guilt was strong, but notes that it is sheer speculation to say what the jury would have concluded if it had been properly instructed. It argues that the court “should not arrogate to itself the role of determining on a written record what properly instructed jurors, the triers of fact who observed the witnesses and could judge their credibility, might have done.”

In contrast to what many lawyers might think, there is no presumption in favor of reversal arising out of incorrect jury instructions in Virginia, at least as far as I know. That is the case in West Virginia, but our Supreme Court insists upon a showing of prejudice to the appellant before it will reverse for error in instructions. Keep in mind that we’re talking about a habeas claim here, not a direct appeal; but on this issue, the analysis is the same.

* * * * *

As all four of these orders are unpublished, and will not be available in Virginia Reports, readers of this site who would like copies may write to me here, and I’ll be happy to forward them.