[Posted July 16, 2008] Yesterday, while I was flying back across the country, the appellate courts that sit in the Commonwealth conducted business as usual, paying no heed whatsoever to my travel plans. The Court of Appeals of Virginia handed down three published opinions, all in criminal cases, and kept alive the Attorney General’s winning streak in criminal appeals. And the en banc Fourth Circuit decided a major enemy combatant case that, in my view, is likely to get further scrutiny in Washington.

Court of Appeals of Virginia
A number of criminal statutes contain limited exceptions. Those exceptions often provide fertile ground for appellate analysis, when courts attempt to determine whether the exception constitutes an affirmative defense (requiring the defendant to adduce evidence to bring himself within the exception), or an element of the offense itself (requiring the prosecution to prove that the defendant didn’t fall within the exception). We get some brand-new guidance on this doctrine in Tart v. Commonwealth, involving a conviction of pandering.

If you’re up on your Chaucer and your Shakespeare, you may recall the character Pandarus from the great poets’ works Troilus and Cressida (I’m using Shakey’s more familiar spelling of Cressida). Pandarus knew that the Trojan prince Troilus loved Cressida from afar, so he arranged liaisons between the two. From this literary reference we get the word pander, meaning a man who arranges illicit trysts for others. There is a more modern term for this person, and for the service he provides; a four letter word that starts with P and ends with I-M-P.

Fairfax County authorities arrested Tart on suspicion that he was acting as a pi- er, as a pander for a 16-year-old girl. The girl readily acknowledged that she had performed acts of prostitution, and that Tart had arranged things for her, including securing motel rooms and using his computer to post solicitations on the Internet. She gave all of the money thus obtained to Tart (there’s a tip-off for you), who used parts of it to buy drugs and alcohol for the two, and to pay for food and the hotel rooms.

From all this, a jury would probably be fairly convinced that Tart was guilty of the offense charged. But the statute contains one of those exceptions, so we have at least one speed bump on the expressway to conviction: Any person who shall knowingly receive any money or other valuable thing form the earnings of any male or female engaged in prostitution, except for a consideration deemed good and valuable in law, shall be guilty of pandering, . . ..”

The trial court held that the exception in that sentence created an affirmative defense, so it was up to Tart to introduce evidence to bring himself within the exception. Tart had offered an elements-of-the-offense instruction that required the Commonwealth to prove that he “did not provide any consideration, deemed good and valuable in law,” but the trial court rejected that.

The Court of Appeals affirms the ruling, holding that this is, indeed, an affirmative defense. And it rules that Tart’s actions in paying for things were not “consideration deemed good and valuable in law,” so he didn’t meet the burden of proving his entitlement to the instruction. What about paying for food and the motel rooms, you ask? Well, since when is facilitating juvenile prostitution “good and valuable in law”?

The next issue to get appellate scrutiny is the voluntariness of statements to police made under implicit threat of prosecution of a family member. The case is Hill v. Commonwealth, where Hill was convicted, based largely on his own confession, of possession of cocaine with in tent to distribute.

Williamsburg police officers arrested Hill in his car, which was parked at a 7-Eleven in the wee hours of the morning. Before they took him away to a police station, he confessed to cocaine possession (after getting suitable Miranda warnings). Shortly thereafter, other officers found a suspicious vehicle parked next to Hill’s car. They approached the driver, who turned out to be Hill’s sister; she said that Hill had been using her car. They asked her for license and registration, and when she opened the glove compartment, the officer thought he got a glimpse of what looked like cocaine in the glove compartment. The woman apparently recognized this, so she hurriedly closed and locked the glove compartment. The officer told her, “I, uh, think I saw the registration in there,” at which point she opened up the glove box again, giving the officer a clear view of what he knew to be cocaine. That gave the sister the right to remain silent.

Back at the police station, the officer approached Hill, re-Mirandized him, and told him that his sister might be in hot water unless he talked to them about the car the sister was driving. The officer helpfully told Hill that he wasn’t convinced that the second batch of cocaine belonged to the sister, but unless Hill took the rap for it, then the sister might get prosecuted. Fearful for his sister, Hill confessed that all of the cocaine, in both cars, was his.

This appeal turns on Hill’s motion to suppress the confession; he contended that his confession was involuntary because it was obtained by the officer’s threat to prosecute the sister. The trial court ruled that there was nothing involuntary about it. It made several specific factual findings to support that ruling. The Court of Appeals affirms, in part because police unquestionably had probable cause to arrest the sister. That distinguishes the case, in the court’s collective mind, from one in which police threaten to prosecute a wholly innocent family member in order to coerce a confession.

Fourth Circuit
The biggest news item of the day from the appellate sector is no doubt the Fourth’s highly fractured ruling in al-Marri v. Pucciarelli, involving the claim by a man that he is being held indefinitely and without charges as an enemy combatant. With nine judges considering the case (Judge Shedd did not participate, and Judge Agee arrived after the case was argued), seven different opinions emerge from the battle. It is truly difficult to tell the opinions without a scorecard.

As you can imagine with a case of this nature, there is a great deal of high prose on both sides of just about every question. For the philosophically minded, the ruling is (really, I should say the rulings are) expansive, thought-provoking, and only occasionally highly technical. It’s 216 pages of fun, for those with either a great deal of intellectual curiosity or a passion for detail.

For everyone else, there’s the holding. In a short (four paragraphs) per curiam order, the court summarizes the holdings and their complex developments: By separate 5-4 votes, al-Marri wins one and loses one, as the court finds that the President has the power to detain him, but that he has to be given a greater opportunity to challenge the detention. This latter ruling follows last month’s decision in Boumedienne v. Bush, in which the US Supreme Court held that enemy combatants held in US-controlled territory must be afforded the right of habeas corpus or some meaningful equivalent.

The key essay in this forest of opinions is probably Judge Traxler’s. He writes that al-Marri should be afforded an evidentiary hearing to determine whether he is, in truth, an enemy combatant. But if he is such a combatant, then Judge Traxler, commanding a majority on this point, perceives that he can indeed be held by the government pursuant to the 2001 Authorization for the Use of Military Force.

This last ruling sets off a storm of protest by one of the 5-4 minorities. Judge Motz, writing on behalf of three colleagues, notes that this question underlies one of the most basic liberties afforded those here – the right to be free from indefinite detention without trial. She rejects the idea that Congress “silently authorized a detention power that so vastly exceeds all traditional bounds.”

As with the Boumedienne ruling, I am loath to stay completely out of this fight, simply because the issue is so important. I believe that the position outlined by Judge Motz is by far the preferable one. Taking the majority’s position at face value, it is wholly plausible that the current Administration could determine that there is a rabble-rousing appellate lawyer in Tidewater Virginia who has declined to agree with the government’s assertion of this power, and that his philosophical resistance effectively gives aid and comfort to the enemy. The Administration could thereupon order the arrest of this unspecified appellate lawyer (not to mention the shutdown of his witty, four-star web site) by classifying him as an enemy combatant. He would then be left to rot in a dungeon, and you’d have to get your appellate commentary elsewhere.

Also as with Boumedienne, this case fundamentally implicates what it is to be an American; what separates us from the lesser nations of the world. I am certainly aware that, as Justice Arthur Goldberg memorably wrote, the Constitution “is not a suicide pact.” The government must take certain steps in order to ensure that we, as a nation, are not destroyed. But the government surely cannot be permitted to adopt an approach that instead destroys the Constitution.

This case is overwhelmingly likely to wind up in Washington in short order, where instead of Judge Traxler, Justice Kennedy, the swing vote in the Supreme Court’s current 5-4 split, will get to decide what kind of nation we will have.