[Posted February 1, 2011] My day job has kept me from devoting sufficient attention to the recent published opinions out of the Court of Appeals. In order to atone for that, here’s something a little different from the usual case analysis, courtesy of a sudden truckload of en banc opinions.

The CAV’s annual statistical report, surprisingly, does not specify how many cases the court decides en banc each year. I just scanned the court’s website for its listing of its published opinions from 2010 (all en banc opinions are published, as a matter of the court’s practice), and I counted just three en banc opinions released last year. But in the span of seven days, counting today, the court hands down four more. All are in criminal appeals, and all four convictions are affirmed.

Of particular importance to today’s topic, all four are split. There are two 8-3 rulings, one that’s 7-4, and another that’s decided by the slimmest of margins, 6-5. Even at a surface level, this gives us a special opportunity to peek into the spectrum of judicial opinions on the court, simply by looking at who voted which way, how often.

A couple of quick caveats here: Four cases, while a comparative bonanza compared with last year’s lean harvest, is not enough of a cross-section to give you a fully detailed view of each jurist’s relative philosophical position on the court. The best we can do with this information is to get a basic guide to who’s voting most often to affirm and who’s voting most often to reverse, at this one point in time. Keep in mind, also, that over time the court doesn’t affirm exactly 50% of the time and reverse exactly 50% of the time, so this isn’t a true continuum.

With all those disclaimers in mind, let’s see who voted which way.

Voting to affirm all four convictions: Judges Kelsey, McClanahan, Petty, and Beales
Voting to affirm three convictions: Chief Judge Felton and Judges Haley and Powell
Voting to affirm two convictions: Judge Frank
Voting to affirm one conviction: Judges Elder and Humphreys
Voting to reverse all four convictions: Judge Alston

That much data all at once has prompted me to skim backward in the court’s en banc opinions a bit farther back, to try to get a better sample size. Since all four of these are affirmances, I decided to go back to the last time the en banc court reversed a conviction. I was surprised to find that I had to go all the way back to 2009 to find one. Including all nine en banc cases within that span, here’s how the voting lines up:

Voting to affirm all nine convictions: Judges Kelsey, McClanahan, and Beales
Voting to affirm seven convictions: Judges Haley, Petty, and Powell
Voting to affirm five convictions: Chief Judge Felton and Judges Frank and Humphreys
Voting to affirm four convictions: Judge Alston
Voting to affirm two convictions: Judge Elder

What will this information get you? Well, along with several dollars, it’ll buy you a vente mocha latte at certain coffee shops. (I hope I got that right; I’ve never had a mocha latte of any size.) But for criminal practitioners, it might help you just a tad in assessing your panel. Even a sample size of nine cases is too small to give you a firm “ranking” of the several judges’ relative views in criminal appeals. Nor are these decisions a suitable foundation for slapping a label on any particular judge; I particularly warn my readers about that. Each of these judges has on occasion voted to overturn a conviction, particularly in cases decided at the panel level, and has voted to affirm others.

For those who insist on knowing the details, last week the court voted 6-5 to affirm the conviction in Ervin v. Commonwealth, a sufficiency challenge to a charge of possession of marijuana with intent to distribute. Judge Alston wrote the dissent, and was joined by Judges Elder, Humphreys, Haley, and Powell. Also last week, the court affirmed several drug-distribution convictions in Merritt v. Commonwealth, where the defendant was found to be in complicity by being the “muscle” to guard a drug delivery from New York to Virginia Beach. This time, Judge Humphreys takes the lead, and Judges Elder and Alston join him.

This week, Stevens v. Commonwealth is affirmed, 7-4, as Judge Elder writes for the dissent, joined by the chief judge and Judges Frank and Alston. In this prosecution for two homicides and several related felonies, the majority concludes that the defendant’s claimed invocation of his Miranda rights was ambiguous, so the prosecution was permitted to use his subsequent uncounseled statements. And Byrd v. Commonwealth draws a dissent by Judge Humphreys, joined by Judges Frank and Alston, over convictions of possession of cocaine and a firearm by a convicted felon. This case involves a tip received from a confidential informant.

Finally, the court issues one civil opinion: Thorpe v. Clary is a Workers’ Compensation appeal involving a claim for death benefits. The decedent produced wrought iron railings for residences. One day when work was slow, he was asked to finish a metal building for an acquaintance. The offered price was a flat $5,000, and the estimated completion time was one week. During the work (undertaken with a colleague who would split the gross fee), the decedent fell to his death.

The problem in this case was proving the decedent’s average weekly wage. This construction was for a one-time job, not related to the decedent’s usual work. The claimant thus contrived a simple approach: Use the anticipated take of $2,500 as the average weekly wage. The claimant presented that evidence to the deputy commissioner and rested. Upon evaluating this evidence, the deputy thought it over and decided that more information about AWW was needed. The deputy offered to the claimant’s counsel to reopen the evidence for that purpose (a remarkable gesture, in my experience), but the claimant declined.

The deputy eventually rejected the $2,500 figure as the average weekly wage, but didn’t leave the claimant high and dry: The AWW was calculated by dividing the $2,500 by 52 weeks, for a weekly figure of about $48. The full commission affirmed that award, and today a panel of the Court of Appeals affirms that ruling. The primary fight here is over who has to prove, or disprove, the wage figure. The employee has that burden, and today’s opinion notes that an employee can’t simply proffer “an unsubstantiated wage figure and then remonstrat[e] upon the employer’s lack of refutation.”

Today’s opinion reveals that the claimant’s attorney conceded that the decedent’s AWW for his regular work wouldn’t suit this proceeding, because the two kinds of employment were dissimilar. So what could the claimant have done here in order to get more than this fairly token award? Candidly, I’m not sure; this was one-time work, with no legitimate expectation that it would, or could, continue at that level of pay from week to week. But while this ruling might be described as a tough one, it is in my view perfectly correct; a one-time labor like this one simply cannot suffice as the basis for an “average” weekly wage at that level, a point that Judge Kelsey, writing for a unanimous panel, makes plain today.