[Posted June 17, 2009] Here are a few musings on recent developments in the appellate world:

    • The Fourth Circuit yesterday denied rehearing, and en banc rehearing, in an intriguing First Amendment case, US v. Whorley. The appellant was convicted of transporting obscene materials. He did so by sending e-mails containing expressions of sexual fantasies involving children. A jury determined that the material was obscene under the test enunciated in Miller v. California, 413 US 15, 24 (1973). So what’s the big deal? As Judge Gregory points out in a lonely dissent from the rehearing denial, there were no actual victims here. This wasn’t a case involving photographs of child pornography; the defendant was only communicating fantasies. In his dissent, he argues that this type of expression, whether you agree with it or not (and there would be very few takers on that proposition), merits First Amendment protection, despite the finding of obscenity. He urges the defendant to seek certiorari in Washington.
  • The Supreme Court and Court of Appeals of Virginia unveiled new web sites yesterday. You’ll find the same information that was available on the old sites, but it’s organized differently. Here are hyperlinks to the new pages:



The criminal writs just keep coming. Just this month, the Supreme Court has awarded appeals to six criminal appellants, to review decisions of the Court of Appeals. One of those, Krasucki v. Commonwealth, presents an interesting evidentiary issue. According to the assignments of error (which you can read on the SCV web site I referred to above), the appellant contends that the prosecution destroyed videotaped evidence of the offense. The CAV refused to consider the case, but the Supreme Court will, with an opinion coming likely early next year.

The Virginia Bar Association has created a new section devoted to appellate practice. Anyone with an interest in appellate courts and appellate litigation is welcome to join for the trifling sum of $25 in section dues. If you’d like more information about it, you’re welcome to contact the chairman, a fellow I know pretty well, at (757) 965-5021.