[Posted July 12, 2010] Last week’s quietude at the Court of Appeals (no published opinions) has given me some precious time to devote to my day job, but I still owe my loyal readers some thoughts about the June 29 en banc ruling in Turner v. Commonwealth, where the CAV dismisses a petition for a writ of actual innocence. I covered the case at the panel stage on August 4, 2009, so I won’t go over the facts again. But several aspects of the en banc ruling merit some analysis here, and some attention for those of you who handle such petitions.

First, the court splits 5-3-1 on the outcome. In my view, that might not be fairly characterized as “highly fractured,” but it’s close to that descriptor. Judge Powell authors the majority opinion (that fact doesn’t appear at the outset, but Judge Elder later spills the beans on page 53); Judge Petty submits a concurrence on behalf of two other judges, taking a different tack but reaching the same port; Judge Elder, the author of the original panel opinion (in which the court granted the writ) dissents alone. So how does a 2-1 panel majority turn into a solo dissent? The panel had included Senior Judge Coleman, who doesn’t get a vote in the en banc decision.

Judges Humphreys and Beales did not take part in the decision. I presume that Judge Humphreys recused himself because at the time of Turner’s convictions in 1996, he was the Commonwealth’s Attorney whose office prosecuted the case. I’m not sure why Judge Beales stepped aside.

There’s an important threshold issue on which the majority and the dissent agree, leaving the concurrence on the metaphorical outside looking in. That issue is the court’s evaluative role in the case, and it produces perhaps the most interesting legal and philosophical sparring of the 66-page set of opinions.

In most appeals, courts speak of the applicable standard of review. That standard can be, and often is, case-dispositive on appeal. But what about a case like this one, in which an appellate court exercises original jurisdiction? The court isn’t “reviewing” anything in the sense of a normal appeal; it’s making a new decision from square one.

[Short digression: The CAV judges aren’t the only ones to wrestle with this confusing issue. Recently the Supreme Court, in JIRC v. Taylor, inexplicably applied Rule 5:25, the contemporaneous objection rule, to one of its own original-jurisdiction proceedings. I mused then that it was analytically impossible to apply this bar to a case in which the case is “originally tried” in the Supreme Court; but that didn’t stop the justices from barring an argument that hadn’t been raised before an investigative body.]

That issue matters a great deal in this case because an original panel of the court sent the case back to the circuit court for a determination of whether or not the murderer’s confession (which exonerated Turner from the actual killing) was credible or not. The local trial judge listened to the testimony and decided that it was indeed credible, and the subsequent CAV panel majority relied on that finding in issuing the writ. The question is, what appellate deference does the en banc court have to afford that factual finding?

The answer isn’t as easy as you might think. It requires consideration of several sub-issues. For example:

A. When the CAV grants en banc review, that action vacates the panel decision, and presumably any interlocutory orders that preceded the panel’s decision. Does that include the original order remanding the case to the trial court for the credibility determination? The concurrence says that it should, but both majority and dissent think otherwise.

B. How does the court review the credibility determination? Again, the dissent and the majority agree that the appellate court should be bound by it, but the concurrence, noting the court’s role as the original decisionmaker, thinks the matter has to be handled differently.

C. Is there a “standard of review” at all in original-jurisdiction cases? The concurrence thinks not, but the dissent believes that this is just a matter of the courts’ using a shorthand for a concept about which there is no question.

Ironically, the majority finds that it is bound by the trial judge’s finding that the confession was credible. But it dismisses the petition anyway, since it concludes that the evidence (even with the years-later confession added in) was not such as would require a factfinder to reach a different conclusion. Keep in mind that this is an actual-innocence petition, not a habeas-corpus petition. The stakes are different (new trial when a habeas petition is granted; immediate freedom when it’s actual innocence), so the decisionmaking standard is different, too. That standard is much tougher for actual-innocence petitions, precisely because of the permanency of this remedy.

In a habeas proceeding, all the petitioner needs to show is enough to cast serious doubts on the legitimacy of the conviction. If he does that, then he gets a new trial. But in an actual-innocence proceeding, a petitioner must prove that the evidence is such that he is necessarily innocent, not merely that a reasonable doubt might exist. That’s the key difference between the majority and the dissent.

But let’s not leave the concurrence here, because I think that position has the better of the argument on some of the material issues on which the judges disagree. Judge Petty writes that “it is our proper function to evaluate the probable effect this evidence would have had on a jury. When properly viewed through the prism of the statute, [the murderer’s] statement becomes just another piece of evidence that the jury would have considered.” If you accept this premise, then the concurrence’s conclusion becomes inescapable: A jury could well have disbelieved the murderer and believed that Turner played a more active role in the killing.

There’s more: The dissent chides the majority (justifiably, in my view) for concocting “a novel theory of abduction by deception in order to manufacture an intent to defile, a required element [that] a rational fact finder would need to find Turner guilty of felony murder.” The majority points to Turner’s far-less-than-honorable conduct in concluding that he was a participant in the crime, but the dissent responds that we aren’t trying him here for being rotten “after the fact.” The relevant inquiry was what Turner’s state of mind was when he and the victim left the bar and went to his car. The murderer’s confession, no matter how detailed, can never address that.

In the end, I find that my sentiments lie with the concurrence. Given my concept of the role of an appellate court in matters like this, I believe that the court’s grant of en banc review necessarily cleared out all previous panel rulings in the case, and meant that the Court of Appeals was the court that had to make a credibility determination. I recognize that appellate courts, in which witnesses are as scarce as wings on a hippopotamus, are poorly suited for credibility determinations, but that’s what the statutory framework requires.

The philosophical weakness in this view, I will readily acknowledge, is that it makes these writs almost impossible to get, because a jury could almost always have disbelieved the newly-acquired evidence. But the finality of the remedy makes it appropriate that relief under this statute, and not merely a new trial under habeas corpus, should be very rare.



[Posted June 29, 2010] In a published order issued this morning, the Court of Appeals has refused a writ of actual innocence in a murder conviction. Turner v. Commonwealth has been major news here in Tidewater, where the murder occurred, and the petitioner in today’s ruling, Dustin Turner, urged the court to grant him the writ based on the confession of another man to the slaying.

The court’s 30-page primary order does not list an author; the majority finds that the murderer’s confession is insufficient to clear Turner of all culpability in the killing. Judge Petty files a concurrence on behalf of Judges Kelsey and Haley, and would refuse the writ on a different theory. Judge Elder, who was in the original panel majority that granted the writ, files a dissent.

I will post analysis of this decision and today’s published opinion (State Water Control Board v. Blue Ridge Environmental Defense League) later today and likely into tomorrow morning.