[Posted May 13, 2008] The Court of Appeals gives us a single published opinion today, in a criminal case that implicates the inconsistent verdicts doctrine. There is also a reminder of an important preservation of issues rule in today’s ruling, Ludwig v. Commonwealth.

Ludwig was charged with murdering his wife. From the looks of the case, they had the right guy; when the couple got into an argument one day, he pulled out a gun and plugged her five times. The Commonwealth secured indictments for first-degree murder and the use of a firearm while committing murder. There didn’t seem to be any dispute as to the events, so what’s the trial going to be about?

Today’s ruling gives us only a hint of this, but I sense that Ludwig tried to persuade the jury that he was only slightly culpable – perhaps provoked by his wife. It worked, as the jury found him guilty of voluntary manslaughter instead of the murder charge. But inexplicably, the jury found him guilty of the use of a firearm in the commission of murder. Hey, they just acquitted him of murder, right? Those two convictions don’t match up.

The case turns on two instructions the court gave to the jury, both by agreement. One gave the jury the elements of murder (first and second degree) and manslaughter. The other told the jury what it would have to find in order to convict him of the firearm charge: “(1) That the defendant used a firearm; and (2) That the use was while committing or attempting to commit murder.”

Trial lawyers sometimes complain that juries don’t pay attention to instructions, and just decide cases based on their sympathies or on how much they like the witnesses and the parties. But this jury was sharp; it caught the seeming inconsistency and metaphorically raised its hand. It asked the judge whether it could convict Ludwig on the weapons charge if it acquitted him of murder. At this point, Ludwig’s lawyer recognized his mistake – he had agreed to an instruction that technically permitted the jury to convict on the weapons charge even if it acquitted him of murder.

Appellate lawyers already know this is coming, but it’s never a bad idea to get a refresher course: The law of the case doctrine is a hammer. It provides that if an instruction is given without an objection, then that instruction is binding on the parties and on the courts, even appellate courts. That applies even if it turns out to be an incorrect statement of the law. Ludwig’s lawyer tried to lessen the sting by asking the judge to answer the jury’s question, “No,” but the judge wasn’t having it; given the way the instructions had read, the only correct answer was “Yes.” Ludwig then tried a different tack, asking the judge to respond with a “Yes, but . . .,” and that’s one of the key issues in today’s ruling. The trial judge declined to modify his answer based on the circumstances of this case, and gave the jury a simple, “Yes.”

The Court of Appeals affirms this exercise of the trial court’s discretion. It notes that once a jury has been instructed on the law, any amplification or explanation of those instructions is strictly up to the trial judge, who has watched the evidence unfold. It reaffirms that Virginia does not prohibit inconsistent verdicts, since appellate courts don’t try to get inside the minds of jurors. The jury may have rendered its verdict out of “mistake, compromise, or lenity,” and in cases like this it’s impossible to determine whether the prosecution or the defendant got the short end of the stick.

I have preached elsewhere that jury instructions are a vital part of the process of preserving issues for appeal, and today’s ruling underscores that. Too many lawyers regard the instruction colloquy as one last bit of drudge work before the real fireworks – closing arguments – can begin. But the severity of the law of the case doctrine counsels otherwise; you cannot give this part of the trial insufficient attention, or you may be foreclosed for appellate purposes.

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The court also announces that it has granted, sua sponte, en banc rehearing in Wright v. Commonwealth, last month’s ruling in which a panel reversed a conviction because a prosecutor had offered no reason for seeking a nolle prosequi. The move is unusual in a couple of respects, one of which is that the panel decision had been unanimous. The court won’t require additional briefing, and the case will probably be reargued during one of the court’s fall en banc sessions.