One Opinion from the Published List, with a Lesson about Formatting Briefs — and a Quick Note

Having just last week participated in the first ever VaCLE Virginia Appellate Academy during which one of my roles was to advise some of the participants on the subtle art of brief writing, I found the appearance on the one published open from the Court of Appeals issued today to be very gratifying.  I know the photo below is a bit small and grainy, but the text is irrelevant to the point I am about to make.

Look at the bottom of the page.  See all that white space? The reason that white space is there is because on the next page there is a heading and that heading has a footnote.  Had the court formatted the page so that the heading and all (or most) of the footnote was on page 1, it would have looked decidedly odd.  Here’s the point I made to the participants at the Academy and that I make here now — the visual appearance of a brief (or opinion) matters.  Odd page breaks, widowed and orphaned lines of text, run-over footnotes, broken up block quotes, and a host of other formatting issues make the brief difficult to read — and you don’t want the audience for your brief, whether it’s the Court and court staff, opposing counsel, or your client, being distracted from the content of what they are reading by the appearance of what they are reading.  I have heard countless judges tell attorneys that “a badly formatted pleading or brief” will not lose your case, but then in the next breath say, “Of course, judges are human beings and can’t help but be influenced by neatness and good grammar” or the lack thereof.

In short, if you have a winning argument, and can communicate it adequately, an odd page break or non-critical typo is not going to sink your case — but why take the risk? Learn to use the very powerful tools of modern word processors and printers to make your argument impressive in content and form.  But don’t overdo it.  It may be easy to emphasize a point with Bold, Underscoring, and Italics, but trust me when I say that it is not effective.  The best way to tell if your brief is “looking good” is to compare it to an opinion of the Court that will be reading it.  Following the Court’s style for headings, emphasis, citations and footnotes will present a document that the judge or justice is “used to seeing.” 

Now on to the actual substance of Travor Lamont Lucas v. Commonwealth of Virginia. Mr. Lucas’ story begins as so many do with a simple traffic stop for defective equipment.  The officer who stopped the vehcile Lucas was a passenger in felt that it had taken the driver an inordinate amount of time to respond to the cruiser’s lights.  Lucas appeared “nervous” when the officer approached the vehicle. 

Now let me stop here and say a word about this classic introduction to a criminal case — people will constantly say, “but of course he was nervous; of course the driver didn’t stop right away . . ..” Well, after three decades of reviewing testimony of police encounters with the public, and more recently being able to review bodycam footage, let me take up for the folks in blue (or brown or green or khaki based on the agency and jurisdiction) — there is a “normal nervousness” and there is a “odd sort of nervousness.”  Same thing with how a driver pulls over — sometimes it’s clear the driver is just looking for a safe place to stop, and other times it’s, well, not clear if the driver is going to stop.  I have had more than one officer tell me that the most worrisome behavior is the driver who stops immediately as this can signal a willingness, perhaps even an intent, to confront the officer — it means that the natural “fight or flight” instinct for that person defaults to “fight.”

Anyway, Lucas had good reason to be nervous as the driver didn’t have a driver’s license.  Now this means that the officer had a good reason to detain the vehicle for longer than it would take to give a warning or summons for defective equipment.  Long enough, in fact, for a drug-sniffer K-9 unit to arrive on the scene.  Asking Lucas and the driver to exit the vehicle, the dog alerted the officers to the presence of narcotics inside, and sure enough suspected narcotics were found inside a folded five-dollar bill.

Lucas now did something that in retrospect he probably shouldn’t have.  He body checked the officer trying handcuff him and ran.  But not far.  One of the officers tackled Lucas after a brief chase and as they went down, the officer heard a distinctive sound that he suspected was a metal firearm falling on the ground.  Another officer observed the weapon “fly” out of Lucas’ pants.  There was also bodycam footage from earlier that established that no gun had been in the area where Lucas was tackled prior to that time.

Lucas was eventually charged with and convicted of multiple offenses arising from this incident including obstruction of justice, possession of a firearm by a previously convicted violent felon, and possession of a concealed weapon.  Exercising his right to appeal, Lucas has several arguments on why this was all a big misunderstanding. Judge Fulton, joined by Judges Ortiz and Raphael, however, seem to have a different understanding.

First, Lucas contends that his refusal to be handcuffed, body checking the officer, and flight from the scene was not really obstruction of justice, it “merely made the officer’s task more difficult and it did not prevent them from performing their duty.”  Ummm . . . Newsflash . . . that is almost a perfect definition of “obstruction of justice.”

Lucas relies on a Virginia Supreme Court case that held “mere flight” was not obstruction of justice, but the Court of Appeals notes that this was not “mere flight.”  Perhaps the lesson here is that you should run before the police know exactly why your are running, not after they’ve already found evidence sufficient to arrest you and, in fact, are in the process of doing so.  I am not saying that running is a good idea — just that as in comedy, timing is everything when not wanting an obstruction of justice charge.

Lucas next argues that the evidence of his possession and concealment of the firearm did not exclude several reasonable hypothesis of how the weapon came to be in the middle of the street close to where he was tackled during his flight and where at least one officer saw it “fly out of his pants.” Lucas suggests that the driver threw the gun from the vehicle or from the side of the road as Lucas fled. In the alternative, Lucas argues that the gun was already in the road and was disturbed when he stumbled upon it as the officers tackled him. Finally, Lucas argues that the Commonwealth failed to prove that the firearm was about his person and readily accessible, as was required to convict him of possession of a concealed weapon.

Here is where Lucas runs into two well known mantras of appellate practice.  First, the evidence is (with a few exceptions) always viewed “in the light most favorable to the party that prevailed in the trial court” — and none of the exceptions to that rule apply when challenging the sufficiency of the evidence to sustain a criminal conviction.  Second, a reasonable hypothesis of innocence is one that “flows from the evidence, not those that spring from the imagination of the defendant.”  There was no evidence that the driver threw anything into the street, and there was uncontroverted evidence that the street was empty prior to Lucas’ flight. Judgment affirmed.

A quick word on an unpublished opinion that was released today, Teresa Mary Maust v. Commonwealth of Virginia. I wish the Court had chosen to publish, if only because it’s pretty rare to get a “reversed and final judgment” in a criminal case.  I concede that the facts are fairly unusual, so the precedent may not be worthy of a published opinion, but the case itself is worth a brief mention. Maust was charged with distribution of a controlled substance having been caught up in what is commonly know as a “controlled buy.” 

A controlled buy typically involves a police informant — usually cooperating as part of a plea agreement or to avoid criminal charges — who arranges to buy drugs from someone the police already suspect to be dealing (usually based on information from the informant).  There are very specific procedures that must be followed to avoid claims of entrapment and to assure that the informant is not, for lack of a better word, hoodooing the police by faking the purchase from an innocent person.  This typically requires the officer handling the informant to check that the informant 1) has no drugs on his person, 2) only has the marked bills provided by the police to make the purchase, and no other money, and 3) has no opportunity to purchase drugs from someone other than the target — done by visual and audio surveillance of the informant from the time he leaves the handler to when he returns with the drugs.

Even the best laid plans can go wrong, and in this case they did.  After checking Gale, the informant, for drugs and money, the officer supplied Gale with the marked bills and then followed Gale, who was driving his own vehicle, to Maust’s residence. Now this is troubling, for while the officer had searched the vehicle, there is always a chance for mischief when the informant and the officer are separated. 

Although Gales was wearing a recording device, the officer was not able to hear live audio (the opinion is not clear as to whether this was a fault of the equipment or that it was only a recording device, not a transmitting one). Again, this is troubling, but not fatal, to the operation, as the recording can serve as evidence that there was no one else present at the transaction (at least not speaking) and that the target is conducting the negotiations.

Then, as they arrived at Maust’s home, Gale got a bit ahead of the officer, who then lost sight of Gale’s vehicle and did not actually see Gale exit the vehicle, or see him enter and later exit Maust’s house, possibly twice.  The officer was able to see that there were several other cars present, at least suggesting that other people where likely in the vicinity.

So, what did the tape tell us? Something that was not disclosed before in the opinion — that Gale was not alone in the car during the drive to Maust’s house.  An unidentified person can be heard talking to Gale on the drive and in fact it was this “companion” who texted Maust to say that Gale was “here.”  More importantly, the officer conceded that he had no idea where Gale’s companion was when Gale was supposed to be buying drugs from Maust, nor is it clear where the companion was when the vehicle was searched, if the companion had any cash on him (or her) or for that matter, what the H*** this person was doing in the middle of a controlled buy.

Now if I am a defense attorney (or a savvy prosecutor), the little tinkles of concern I had about the informant driving his own vehcile, the officer not being able to monitor the audio, and the inability to see Gale actually go into the house have just turned into blaring klaxons. AH-OOGA! AH-OOGA! Houston we have a problem.

Now, there is still plenty of opportunity to put out the fire.  For example, the audio recording may establish that Maust openly discussed selling drugs and accepting cash from Gale. Except that she didn’t.  Instead, there was some conversation about how much Gale “owed” Maust, and a great deal of questions about some appliances Maust was selling (and no testimony that this was some euphemism for drugs).  Nothing about drugs. Eventually Gale returned to the predesignated meeting place and gave the officer three pills and some money that was not part of the original marked buy money.

Now I am going to give a quick summary of what followed. Police got a search warrant, and in searching Maust’s home found considerable evidence that would be entirely consistent with drug trafficking — drugs, of course, but also large sums of cash, a pill press, an “owe sheet” and numerous prescription drug bottles. Among the cash recovered were the marked bills given to Gale for the buy. Maust also made some incriminating statements, while also trying to deflect blame to her ex-husband who was a “way bigger drug dealer.”

Now to this point, experienced criminal lawyers are saying, “Hmmm . . . a close case, but if the circuit court doesn’t have a problem with the initial drug buy and excludes the evidence from the search, it will all come down to credibility.  Gale will testify he bought drugs from Maust; Maust will deny it, and the judge will believe Gale.”  Except there is one hitch in that plan . . . Gale died before the trial.

Since this is an appeal from a conviction, not an interlocutory appeal from a suppression motion. We know the circuit court did not have any trouble with the legitimacy of the buy, and then found that there was sufficient evidence to show that Maust was the person from whom Gale acquired the drugs.

That’s not how two members of the Court of Appeals see it. Judge Chaney, joined by Judge Causey, find that the circumstances surrounding the buy are sufficiently questionable to raise a doubt as to whether Gale obtained the drugs from Maust.  In effect, that is the ace at the bottom of the house of cards on which the rest of the evidence rests, and for the Court, taking that card away causes the rest to fall with it. While there is substantial evidence that Maust was “in the business of dealing drugs,” she was charged with distribution of drugs to Gale. The majority says that the ambiguity about the controlled buy is sufficient for reasonable doubt.

Judge Malveaux, however, takes issue with this rationale. For her, this is a sufficiency case, plain and simple.  And applying the “light most favorable” standard, the evidence, albeit circumstantial, is sufficient to find that Gale obtained the drugs he turned over to the officer from Maust.

My question, more for trial counsel I suppose, that for the Court of Appeals, is was there a motion to suppress the evidence of the search and if not, why not? Given the very atypically nature of the buy, challenging the search warrant issued based on the buy would seem a natural action to take. It occurred to me is that if there had been a suppression hearing and Gale was still living, his testimony, subject to cross-examination, might have been preserved at that proceeding and could have been used at the trial. But, if the trial court had found that the questionable drug buy was insufficient to sustain probable cause for a warrant, all that circumstantial evidence that Maust was dealing drugs would go away . . . probably along with the charge.

Well, that was fast. Last week I said that we would see more about the “plain smell” is

As we enter the Dog Days of Summer, the Court of Appeals has three published opinion to kick off August. Let’s start off with a Worker’s Compensation appeal where the pro se employee appellee gets a win!  Hooray for the little guy — or in this case gal.  The case has a really interesting twist in that Ms. Casie O’Neil is a sheriff’s deouty and her on the job injury was caused by another law enforcement officer during a training exercise.

County of Henrico and PMA Management Corporation, TPA v. Casie O’Neil involves three questions: Did the Commission err in failing to find that O’Neil’s claim was barred by res judicata, and if not, did it err in finding that her injuries were were causally related to her workplace accident.  Separately, the County also argued that “the Commission erred by refusing to permit the County to participate in oral argument in an unrelated case.” That third issue is a bit of a head-scratcher, isn’t it?  How is an “unrelated case” relevant to O’Neil’s?  As Margo Channing would have it, “Fasten your seatbelts; it’s going to be a bumpy night.”

O’Neil attended a sheriff’s training exercise. During the training, a lieutenant punched her near the throat, causing pain in her collarbone, neck, head, left arm, and ear. Immediately following the punch, O’Neil felt pain on her left side, she could not hear anything, and her jaw hurt. Her supervisors instructed her to go back to her workplace to fill out an incident report. She experienced more pain while driving, so she pulled over and her supervisor drove her to the emergency room where she was treated. Subsequent medical treatment showed that O’Neil was suffering from “multilevel degenerative disc disease in the spine,” how ever in making this diagnosis, the training incident was identified as the “onset” of the condition.

There was no evidentiary hearing on O’Neil’s initial claim for benefits.  She was rated for light duty and received an award that provided temporary total disability due to “sternoclavicular joint strain.”  After being rated to return to full duty, O’Neil continued to suffer pain and hearing loss.  Following additional examinations, she was diagnosed with brachial plexus injury, reactive cervical lymphadenopathy, neuropathic pain, and otalgia of the left ear.  Again, the doctor making the diagnosis traced these conditions to the trauma from the training accident.

O’Neil filed a new claim, which was dismissed by the deputy commissioner as barred by the previous award.  The Commission reversed the res judicata finding and remanded the case to the deputy commissioner, who then denied the claim finding that O’Neil failed to prove that any injuries to her brachial plexus, neck, collarbone, left arm, left ear, or mouth were directly related to the incident or a composable consequence of that incident. The Commission again reversed with respect to the injuries to her brachial plexus, neck, collarbone, and left arm, but not those related to her ear. So, we know the origin of the first two issues . . . but what about the “unrelated case”?  Well, as I said, it’s going to be a bumpy night.

The Court of Appeals, Judge Callins writing for herself and Judges Huff and Lorish, first address the res judicata issue.  Res judicata can apply to Worker’s Compensation cases, but it’s not quite as straightforward as in civil law, because “when res judicata conflicts with other public policy considerations, [the Court] must balance application of the doctrine against those other considerations.” This, the appellate courts “recognize that a “[w]orkers’ compensation case, of course, cannot always be concluded in a single evidentiary hearing,” and have therefore affirmed the Commission’s ‘tailored . . . application of res judicata to take into account allegations of injury that, while pled in the initial claim may nonetheless not be ripe for final adjudication.'”

One of the ways that a claimant can avoid res judicata is if she never had the opportunity to present evidence to the Commission and, in doing so, failed to establish all her claims.  The Court of Appeals has already held that where there is no claim, but only an agreed award, the lack of an opportunity to present evidence means that there was also no opportunity to “waive” a future claim by failing to present evidence.  Today, the Court answers the question of whether the filing of a claim followed by an agreed award without an evidentiary hearing likewise avoids res judicata. The Court holds that the same rationale applies — no evidentiary hearing means no waiver of claims not proven.

As to the finding that the injuries were caused by the workplace accident, the County argued that there was insufficient expert evidence to establish causation.  The Court responds that the Commission can rely on medical evidence and draw its on conclusion about causation and that its decision is review in the light most favorable to the prevailing party.  I guess that was more polite than my reaction to this issue which was “Ummm . . .No.”

Finally, what’s this about not being permitted to present argument in an “unrelated proceeding”? Well, it turns out that O’Neil, while pro se at the appeal level, had counsel before the Commission and this attorney, whose identity is sadly not revealed because he or she deserves credit IMHO, had three cases with the same res judicata issue. The attorney requested that the Commission consider one of the cases first and then apply its finding to the others. The County sought to present argument in that case, and the Commission declined.

On appeal, the County argues that it was denied due process because the Commission’s decision in the other case was, effectively, the final word on the issue at that level.  The Court raises an interesting point, which is that it has never expressly held that a governmental entity has due process rights in a worker’s compensation setting.  Rather than resolve the issue, which was not raised by O’Neil, the Court assumed that due process would apply, but finds that it was not denied here.

First, the Court notes that the Commission’s rules do not allow for the intervening of disinterested parties to the claim.  The County was interested in the legal issue, not the claim in the other case.  Second, the County was permitted to argue the issue in its case, it was just disappointed that it had to do so in the face of the precedent for the other case — hardly a unique position.

The other two opinions today are both from criminal cases. The first Michael Angelo Street v. Commonwealth of Virginia is more or less a repeat of last week’s Montgomery v. Commonwealth, a 2-1 affirmance finding that the statutory elimination of “plain smell” of marijuana as a basis for searching a vehicle did not apply retroactively.  I predicted that Montgomery would not be the last word on that issue, but I didn’t expect another case quite so soon. In Street there was no dissent, with Chief Judge Decker joined by Judges Athey and Chaney affirming Streets conviction upon a finding that the search was (at the time) lawful.

Finally, we have a split-decision in Jordan Darrell Morris v. Commonwealth of Virginia, a case involving the medical-amnesty statute, Code § 18.2-251.03, which shields from arrest or prosecution those persons who seek emergency medical assistance because they are experiencing a drug overdose.  The facts are very specific here, but the broader issue of the appeal will have application in many instances.  Specifically, that issue is whether the person claiming immunity for seeking medical aid for an overdose must actually be experiencing an overdose.  That is, must there be medical evidence that the defendant was suffering a medical crisis, or is the subjective belief that he is sufficient to invoke the immunity of the statute.

Morris was arrested on his way to emergency room — indeed, the police found him in his vehicle stopped in the driveway of the facility.  Morris was under the influence of some intoxicating pharmaceuticals and told the officers who stopped his vehicle that he was contemplating committing suicide by an overdose of those drugs, saying that that using drugs (crack cocaine, as it turned out) made him suicidal.  He told the officers that he was at the emergency room to “get help.”

When tried for possession in violation of Code § 18.2-250 and DUI-D, Morris sought to suppress the evidence under the medical-amnesty statute.  The Commonwealth argued that there was no evidence that Morris was seeking treatment for an overdose, or was in fact suffering an overdose.  The issue was presented to the court on stipulated facts.  The circuit court agreed with the Commonwealth that there was no evidence of a life-threatening condition from the ingestion of drugs which was required to provide immunity from prosecution.  Morris entered a Alford plea and this appeal followed.

The majority, Judge Raphael joined by Justice Ortiz, concludes that the statute must be broadly construed both with respect to whether the existence of the life-threatening condition is present — the defendant’s subjective belief that he is in medical crisis being enough to satisfy that part of the statute.  The majority also finds that suicidal ideation as a a result of ingestion of drugs is a life-threatening condition arising from an (over)dose.  In other words, the majority reasons that if the drugs create or enhance a desire to commit suicide, the defendant as taken too many drugs, even if it isn’t the “overdoes” that is the direct cause of the medical crisis that can lead to death.  The Court vacates and remands for a new proceeding on the motion to suppress under the standard articulated in the opinion.

One element of the case has to do with standard of review for the stipulation of facts and how they are to be viewed on appeal.  The Commonwealth only reluctantly stipulated to the facts when pressed by the trial court, and argues on appeal (with the agreement of Street) that it is now entitled to a favorable view of the stipulations.  The majority, in a footnote, disagreed, saying that stipulated facts are not in dispute and that the appellate court is in the same position as the trial court to weigh the stipulations.  Now, what I find interesting about this is that in the first Virginia Appellate Academy to be held this week in Charlottesville, the sample case that the participants have briefed and will argue includes a stipulation of facts . . . and the question of the standard of review for stipulations might very well come up in the mock arguments.

Judge, now Justice, Russell dissents. Judge Russell says that the majority is making policy by interpreting the statute well beyond the plain meaning of its words.  Specifically, the word “overdose,” in his view, has a clear meaning — a medical crisis in which an excess amount of pharmaceuticals produces a physical medical crisis that requires medical attention. The dissent in 19-pages and has much more to say about the actual facts of this case, but I think it is fair to say that this observation highlights the main point of contention between the majority and the dissent.  While the question of whether the “overdose” is subjective or objective, one still has to agree on what an “overdose” is.

Before today, I would have assumed that Judge Russell’s definition was what was intended by the legislature — but by the same token, I don’t think I would have considered the position put forward by Morris and adopted by the majority.  While I think Morris’s case is a weak one, I can certainly think of a similar fact pattern — the “bad trip.”  Suppose the defendant’s life functions are not in danger, but the drugs are nonetheless causing him to have a psychotic break and he believes a demon has entered his body and he must cut it out by disemboweling himself — yet somehow he retains a sufficient awareness to seek medical help?  As with the “plain smell,” I think we are bound to see more on this issue — though probably not as soon as next week.

Two Opinions, one Dissent, and a Wholly Unsurprising Decision on a Rehearing En Banc

There were two published opinions, but three published decisions from the Court of Appeals.  Because the decision was that the Court has jurisdiction over the rehearing en banc in Lundmark v. Commonwealth, now to be known as Lundmark v. Henrico County, it is the headline of the day.  To understand why a seemingly perfunctory procedural order is not only worth publishing, but is actually the lede for this blog post requires a little background.

Lundmark was originally decided back in March with a published order dismissing the appeal.  This was because the appeal was filed against the Commonwealth, but the underlying conviction was based on a local ordinance, meaning that the wrong party had been served.  As I explained by in March, this is a problem that, while not new, was going to be troublesome going forward because notices of appeal in criminal cases where the Commonwealth is the appellee now go directly to the Attorney General, bypassing the Commonwealth’s Attorney.  In days of yore (well, last year), when an appeal from a conviction under a local ordinance was filed, the notice would go to the local prosecutor, which in most cases was the Commonwealth’s Attorney who had an agreement with the City or County to prosecute these cases on behalf of the City or County Attorney.  This usually meant that the misjoinder was “no harm, no foul” because the right party was served.  I will grant that it tended to cause some confusion, but often when unnoticed, especially as the petition would most likely not be granted.

Starting in 2022, however, there were no more petitions and the appeal of right went straight to the AG’s office.  The first time this happened, sort of (it was in an appeal that got “legislatively granted” on January 1, 2022), the local government somehow got wind of the problem (I am guessing a call from the AG’s office) and moved to intervene and have the appeal restyled.  The Court granted the motion and all was right with the world.

The next time however, with Lundmark’s appeal, the AG instead moved to dismiss for misjoinder, and the Court granted that motion as well, but with Judge Causey dissenting.  At the time, I speculated that Lundmark would be satisfied with getting his delayed appeal, but he wasn’t and sought a rehearing en banc.  The Court granted that motion, but directed the parties to brief the question of jurisdiction only, not the substance of the appeal.  Meanwhile, the local government got involved and agreed to waive in defect int he notice of appeal.

It was this last bit that saved the Court from what could have been a complex debate on whether it had jurisdiction in such cases.  So today the Court simple acknowledges the graciousness of Henrico County, reinstates the case on the docket and orders a new round of briefing by the proper parties. Presumably the appellant’s brief will be filed forthwith after a few quick edits and the County’s brief will follow.  The case will be heard, unless argument is waived or dispensed with, by a three-judge panel as the grant of the en banc was only about jurisdiction.

The first published opinion today is Catherine Tyler v. Commonwealth of Virginia and it’s all about restitution.  Specifically, its about what a court can award to a victim to make them whole.  Tyler was an employed by a law firm as a real estate paralegal, and was entrusted by her employer,  Dygert, Wright, Hobbs & Hernandez, with management of the escrow funds in the firm’s trust account and its operating account.  This turned out not to be a good idea, as Ms. Tyler diverted just shy of $650,000 of those funds to her own use. This resulted in a criminal charge against Tyler and a bar complaint against one of the principals of the firm (the latter resulted in a public reprimand by agreed disposition).

The opinion does not tell us much about how Tyler was ultimately convicted of embezzlement — whether by trial or plea — but we do know that her sentencing the firm requested restitution of the embezzled amount and approximately $125,000 of consequential damages.  The latter amount was account for as follows:

1. office expenses totaling $922.02

2. malpractice and real estate insurance costs totaling $14,060.50

3. legal fees totaling $14,622.50

4. forensic accounting costs totaling $34,493.75

5. the Virginia State Bar sanction fee and audit costs totaling $11,216.30

6. anticipated future costs totaling $29,075, which included costs for VSB-required audits every six months and for the forensic accountant’s testimony

Tyler was ordered to pay restitution, less $275,000 already recovered, and the consequential damages.

Tyler appealed, challenging the award of consequential damages.  Today, the Court of Appeals, Judges Russell, Ortiz and Raphael, agrees that some of the consequential damages were “too attenuated from her crime” to be recoverable through restitution. The opinion is 32 pages long as the Court had to review each separate element of the claimed expenses, and if you are really interested in those rather dry details please see the link to the slip opinion above. But let’s discuss the element of the damages that immediately struck me as  . . . ahem . . . requiring a significant amount of chutzpah to ask for — the costs of the VSB Disciplinary Proceeding and the Sanction. Are you frickin’ kidding me?

I hope you will be pleased to know that the Court had much the same reaction as I, although they were much more decorous in saying so. In a nutshell, the Court said that an attorney cannot recover through restitution because the duty to supervise Tyler and oversee her management of the firms account was independent of her criminal act. “[T]he firm was independently required to maintain certain records, reconcile its client accounts, and supervise nonlawyer employees, regardless of whether Tyler was embezzling funds.” While it’s failure to do this allowed Tyler to embezzle for years, the Rules of Professional Conduct also require an attorney to assume responsibility for the actions of a nonlawyer employee who violates the rules.

The other published opinion today is a bit of a dinosaur as it involves the application of Code § 18.2-2501(F) and a “plain smell” search.  As the Court recognizes in a footnote, “Code § 18.2-250.1 was repealed in its entirety and the language of subsection F was recodified at Code § 4.1-1302. This statute is largely identical to Code § 18.2-250.1(F) except that it also prohibits the issuance of search warrants based solely on marijuana odor.” This was all part of the (almost) decriminalization of marijuana (in small amounts) in 2020. For James Jesus Montgomery, that fact is of little comfort as this case involves a traffic stop in 2018.  Having stopped Montgomery for driving with his high beams on, the officer observed the odor of marijuana, searched the vehicle and found a quantity of marijuana sufficient to result in a charge of possession with intent to distribute.

Now at the time, there was no (former) Code § 18.2-2501(F), but Montgomery’s case dragged on and, after the next election in 2019 with a change in control of the House and Senate, and criminal law reform, especially as to marijuana use and possession, was all the rage. By the time the legislation was adopted and became law, it seemed like a gift from Heaven (though one hesitates to liken the General Assembly to the celestial realm).

Montgomery moved to suppress the marijuana as the search was based solely on “plain smell,” which the new statutory provision prohibited.  The circuit court, however, took the view that the new provision was a substantive change in the law that did not apply retroactively.

Now as the Court notes, retroactive application of the law is not favored and can be demonstrated only if 1) the legislation expressly states the law is to apply retroactively, or 2) the law effects only procedural matters — in which case the application is “retroactive” only in the sense that the new procedures are applied to cases that arose before the effective date of the law and are still pending.  The first provision does not apply here as the amending act contained no express application language, but what about the second.  Is a motion to suppress “merely procedural”?

Well, in this case it depends on who you ask, because Judge Humphrey, joined by Judge Chaney, say no, at least not when you are asking the court to apply a new law to the police conduct.  Judge Lorish, on the other hand, says yes, at least when you consider the context of what the law was enacted to prevent, which was searches based on what may have be a lingering or obscure smell of an illicit substance. “Code § 18.2-250.1(F) is a rule affecting only procedure, remedy, and the admissibility of evidence, and therefore the majority errs by categorizing it as ‘substantive.’”

The majority is just over 13 pages and the dissent is 19.  Both go extensively into the history of what how the appellate courts determine whether a change in the law is substantive or procedural in these cases, and I commend the opinion to anyone who need a precis on the subject.  But for my part, especially as I expect this will not be the last word from the appellate courts on this case or this issue (and the application of the new version of the statute in Title 4.1), I would like to focus on one question only — should the statute apply retroactively to a search where the law enforcement officer could not have known that the General Assembly was going to somewhat arbitrarily decide that what has for decades been a reasonable basis for a search wasn’t anymore?

I realize this is not a “reasoned and articulated answer supported by precedent,” but once again I gotta go with “Are you frickin’ kidding me?”  Look, I am a knee-jerk liberal when it comes to due process and the 4th Amendment from way back.  But even I have to give pause before saying to an officer, “Hey, before you conduct a search, you might want to poll the current legislature to see if they are about to through your a curve.  In fact, maybe you should try to figure out who will be in the legislature after the next election and check with them too.”  Again, I know this is not a “legal” basis for finding that the new law was substantive . . . but the benefit of being a pundit is you aren’t constrained by little things like that.