I am proud to say that in addition to being a “procedural geek,” I am also a “data geek.” I am fascinated by looking at statistics about anything – discovering hidden (and usually meaningless) patterns and trends. So when you combine appellate procedure and statistics, well, I am just happier than a pig in new slop.
I have just finished compiling the raw data for the filings in the Court of Appeals for the first half of the year, and I am now manipulating the data to see what pops out. I will likely continue to do this over the rest of the holiday weekend (Happy Fourth of July, BTW) and well into the rest of the month as time permits, but for now let me give you the broad picture.
First, a few caveats. This data is collected from the public version of the Court of Appeals Case Management System available through the Court System Website. As we all know (or are presumed to know), the ACMS is not warranted to be accurate, though I find that it is generally well-maintained. On the other hand. I cannot speak with the same confidence about how well maintained your humble correspondent is, and indeed I have found a few “operator errors” as I review my data entry.
Another important caveat is that “things change” from time to time – for example, there was a case that was initially classified as “Criminal Contempt” back when I first commented on the January filing, but on closer examination it turned out to be a “Civil Contempt,” and I caught this change when I was updating the data. The Court Clerk’s Office does its best to keep the record straight, but often they are given confused and sometimes conflicting information from the parties, the circuit court clerk, and the attorneys. Similarly, a case may be filed pro se but then the party hires an attorney, or begins as a represented case but then the party fires his counsel. So if these numbers change a little between now and the next reckoning, don’t be surprised.
Finally, sometimes in classifying some aspect of a case, I had to make a judgment call. For example, what is the status of case where the appellant files the designation of assignments of error (or even the opening brief) before the circuit court forwards the record to the Court of Appeals. You see, that really shouldn’t happen because it’s the receipt of the record that triggers the timing of the designation. In that particular case, I decided that such cases would be designated as “awaiting record” because the Court of Appeals certainly won’t advance the case until it has the trial court record in hand.
Let’s Start with the basics – what types of cases – Appeals and Original Jurisdiction – are being filed?
Monthly Filings By Case Type2022FilingsCRIMWCDRCIVADMINBONDCTMPT-CRCTMPT-CVCWGRIVHABEASINJINTERLMANDSVPWAINONEJAN14557724301201410300258FEB17098518281401110100264MAR175891218362100301302044Q1490244246094470282170241516APR15177615382200101120042MAY15589310472200000000020JUN1639076426201201100140Q24692561631127106013022201102Total9595004091221141303112392252518
CRIM = Criminal Appeal; WC = Virginia Workers’ Compensation Commission Appeal; DR = Domestic Relations Appeal; CIV = Civil Appeal; BOND = Appeal of Denial or Granting of Bond; CTMPT-CR = Criminal Contempt Appeal; CTMPT-CV = Civil Contempt Appeal; CW = Commonwealth’s Pre-Trial Appeal (by petition); GRIV = Appeal of Civil Service Grievance; Habeas = Petition for Writ of Habeas Corpus (OJ); INJ = Injunction; INTERL = Interlocutory Appeal (certified); MAND = Petition for a writ of Mandamus (OJ); SVP = Appeal of Sexually Violent Predator Commitment Proceeding; WAI = Petition for Writ of Actual Innocence Based on Non-biological Evidence; None = Case over which the Court does not have jurisdiction
As you can see, the Court has received 959 filings to which record numbers have been assigned (not all filings are giving record numbers, but those that are not are generally dealt with swiftly and quietly by unpublished orders), and of these, just over half (52%) are in Criminal Appeals. Civil Appeals are the next largest category and are less than half that (23%). Cases from the “old” appellate jurisdiction of the Court make up about 17%, while Original Jurisdiction and miscellaneous cases make up the remaining 8%.
While some predicted a flood of civil appeals of right, and a deluge of criminal appeals of right, neither prediction appears to have been prescient. In fact, I would suggest that with an average of 37 civil appeals per month, the enthusiasm for appeals of right in that realm is decided lukewarm at best.
One factor I did find surprising was the fairly small number of appeals from denial or granting of bond. Given the new lenient standard, I expect to see a somewhat more robust series of appeals at least initially. Perhaps this suggest that the circuit courts are taking the new standard seriously and making judicious (and on the record) decisions.
Pro Se? You Don’t Say!
Another surprising detail that emerged from the data was how many pro se appellants there were. Let me concede that while I have dealt with quite a few pro se parties in my career, I have no real concept of how common pro se appeals where. In the first half of 2022, the Court of Appeals received 201 appeals from pro se appellants. That’s just shy of 21%, more than one in five appeals. By contrast, there were only 23 pro se appellees, and just 7 of those were in appeals where the appellant had counsel.
I should note that I have excluded from the calculation of pro se parties those cases where attorneys are acting as their own counsel. I classify these, of which there were 4 including one in which both the appellant and appellee were pro se attorneys, in an entirely different category – Fools. While the quotation, or variations thereof, that “any many who acts as his own lawyer has a fool for a client” is attributed to many, including Abraham Lincoln, Benjamin Franklin, and Oliver Wendall Holmes, its earliest known appearance in print is in the 1682 book “Humane Prudence, or, The Art by which a Man May Raise Himself and Fortune to Grandeur” by William de Britaine:
Before you act, it’s Prudence soberly to consider; for after Action you cannot recede without dishonour: Take the Advice of some Prudent Friend; for he who will be his own Counsellour, shall be sure to have a Fool for his Client.
It is debated whether de Britaine was speaking specifically of legal counsel, and the sentiment certainly could be applied to many professions and situations.
Status of Cases
Another somewhat surprising revelation from the data is both how quickly and, conversely how slowly, the Court is resolving cases. To explain that apparent contradiction, let me state that I am not faulting the Court for not resolving more cases on their merits. The appellate process is, at the best of times, plodding given that it depends on the actions of many disparate parts, so it is not unusual for an appeal that is filed in January is still not ready for a decision in June, let alone actually considered by the Court with an opinion forthcoming.
What I meant by cases being slowly decided refers to the disposition of cases that are procedurally barred from reaching a merit review. In looking at ACMS, I noted that there were more than a few cases that appear to be well overdue for dismissal, but appear idle on the docket. There are, of course, perfectly reasonable explanations for why they might be still active; the most obvious being that they are idle because the appellant has sought and ben given one or more extensions of time to file. Still, a case that has been waiting for a designation of assignments of error and an opening brief for more than three months seems likely never to advance.
On the other hand, it was quite impressed to see how many cases the Court had cleared from the 2022 docket. The court has resolved, in some fashion of another, 168 cases, 17.5% of the cases filed this year. Now you might not have realized that the Court had disposed of so many cases. There is good cause for not knowing, however, as only 1 of these cases was disposed on by a published decision – and that was the published order in NAACP (Hanover Chapter), et al. v. Commonwealth of Virginia, et al., decided back in April and dismissing the case seeking an injunction.
Six other cases have been addressed in unpublished opinions, while the remaining 161 were dealt with by unpublished order. I will eventually get around to break these dispositions out by case type and result, but for now here is the “big picture”: All of the unpublished opinions where affirmances; five cases that proceed by petition had the petitions denied, 97 cases were dismissed by unpublished order, while just two, both in injunction cases, were reversed and remanded. Fifteen petitions for writs of actual innocence were summarily dismissed, a disposition used only for that type of original jurisdiction case. Eleven cases were transferred to the Supreme Court of Virginia. Thirty-one appeals were withdrawn.
Ready, Steady, Go!
The final tidbit before I sign off is to report that 164 of the appeals filed in 2022 are fully briefed and ready for the Court to receive (or dispense with) argument – indeed a few have already been heard by a panel. Some of these might yet be subject to procedural dismissal because of issues not detected until the record has been given a thorough review – it’s actually surprising how frequently this happens given the multiple checks that a case goes through before reaching a panel for decisions.
An event of some note occurred on July 28, 2022, but it received little fanfare. Indeed, I am somewhat chagrined that I was not more vigilant in reporting the event as it was something that I have been anxiously awaiting. What was the momentous event? Nothing less than the first opinion issued in an appeal of right filed in 2022 where the Court of Appeals exercised the authority of Code § 17.1-403(ii)(b) and Rule 5A:27(b) to dispense with oral argument “because ‘the dispositive’ issues in this appeal have been ‘authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.'”
OK. So maybe I gave that revelation a bit more of a build-up than it deserved. However, at least for those practicing in the appellate courts, and especially those that practice criminal appellate law, you can be sure that James Davis v. Commonwealth of Virginia is going to be a must read opinion. Why? Because its the first real hint of how strictly or liberally the Court is going to use its power to dispense with oral argument in criminal appeals of right. Admittedly, the Court has already dispensed with oral argument in a few other cases under the new rule, but these were either Domestic Relations cases filed in 2021 that could have been summarily affirmed under the old practice or were pending 2021 criminal cases that were “bumped up” to appeals of right at the start of the year and likely would not have been granted appeals had the petitions been review for merit.
Let us take a look at the case in a little detail.
First, the opinion was issued per curiam with the panel give as Judges O’Brien, Lorish and Senior Judge Annunziata. Now, it so happens that another unpublished opinion issued on Tuesday had the same panel and that case, Jenkins v. Commonwealth, is one in which oral argument had been waived by the parties. This was a pre-2022 case and a little investigation confirmed that it was among the pending cases that were automatically granted when the new appellate regime went into effect on January 1.
Unfortunately, knowing this does not tell us how Davis came to be reviewed by this panel. It may be that the case was pre-screened for dispensing with oral argument and then assigned to a “no oral” panel. This seems likely, but it does not tell us how that case got to be “pre-screened.” The opinion states that “the panel unanimously holds that oral argument is unnecessary,” which suggests that the case could have been referred for oral argument had the panel not agreed — but again it does not tell us how the panel was called upon to make that decision.
In the past, summary affirmances were generally issued per curiam, so we can probably presume that cases for which oral argument is dispensed with will likewise be “unsigned.” In the past it was not unusual, though infrequent, to have a signed dissent to a summary affirmance. I think it unlikely that this will happen in 5A:27(b) cases because I can’t see a judge agreeing that oral argument is not necessary, but then wanting to reverse. However, this would not preclude a judge from concurring separately, though again I think it unlikely.
As an aside, I have recently been advised by someone in the know about such things, that the Court of Appeals has chastised a few attorneys for not being precised in their certificates with respect to whether they are merely “requesting” oral argument as opposed to “not waiving oral argument.” It is not clear to me how a request for oral argument is not an indication that one is not waiving, but apparently the Court may view it differently. This suggests that briefs that are not firm in asserting “non-waiver” of oral argument may be the ones getting pre-screened. But that is mere surmise.
Any who, back to the opinion. Now, frankly, I am not sure that I wouldn’t have let this one go to argument if I’d been making the call because I don’t see this as a “been there, done that, got that t-shirt” kind of case. To begin, Mr. Davis is a very bad man and this is not his first rodeo. This go round, he was convicted of attempted murder, malicious wounding, use of a firearm in commission of a felony, abduction, attempted strangulation, misdemeanor brandishing a firearm, and misdemeanor assault and battery. Previously, Davis had been convicted of manslaughter.
Now some of you familiar with the law of evidence are probably wondering, “Hmmm . . . why would the Court of Appeals make mention of a prior conviction? Surely the circuit court did not permit the Commonwealth to introduce that into evidence?” Well, that’s exactly what happened, though not at a trial, which would likely have been found to be very wrong. Rather, Davis entered Alford Pleas to all the aforesaid crimes, but objected to the introduction of his manslaughter conviction and a Court of Appeals opinion as well as testimony from a victim of another offense from way back in 1980.
Now I won’t go into any detail of the current offenses. Let’s just say that Davis got into a lover’s tiff with his (presumably now ex-)fiance. A tiff in which he asserted that “You belong to me. If I can’t have you, no one will. I won’t live without you, and we can die together” and “I’m going to kill you and we are both going to die and go to hell.” Davis the proceeded to demonstrate that he was willing to carry out at least the first part of that threat, but thankfully failed. We will never know if he would have gone ahead with the planned suicide or not.
Now we get to the crux of the appeal. During the sentencing hearing, the Commonwealth put on extensive evidence of Davis’ prior criminal history, including the testimony of the 1980 victim and the Court of Appeals’ opinion. These latter two elements of the evidence were introduced to rebut Davis evidence which, as best as can be determined from the opinion, was intended to show that due psychological factors he was not responsible for his criminal actions as they occurred during dissociative episodes that were the result of his long periods of prior incarceration.
You see, it seems that Davis was arguing, in effect, “Prison made me worse, so don’t send me back” and the Commonwealth wanted to rebut that by saying “No, you’ve been a bad guy all along.” The circuit court was actually quite generous in conceding that Davis had an extraordinarily tragic and traumatic life history, but declined to find that this sufficiently mitigated the severity of the current offenses. The Court imposed an active sentence of 40 years which, given that Davis was in high school just prior to his adult criminal offense in 1979, suggests that he will be in prison until he reaches 100 or so. This is a fairly significant upward departure from the sentencing guidelines, but in truth the judge’s reasons for doing so, in writing, indicate that she really thought Davis was not remorseful and, as I said, a really bad man.
On appeal, Davis challenged the admission of the Court of Appeals opinion, both as improper hearsay and not proper rebuttal evidence. Now, this is the issue on which I would have thought the Court would have wanted to hear oral argument because there is absolutely no law regarding the use of judicial opinions in this manner. However, the Court simply puts it down to the lenient rules of evidence and the court’s discretion. So now there is an unpublished, per curiam opinion that addresses this issue.
Jones also argued that the court did not properly weight the mitigating evidence in departing from the sentencing guidelines. As you can guess, this gets no better treatment by the court because the judge set forth her reasons for the upward departure, and the sentence was in her discretion.
The Court of Appeals released one published decision today, but not in an appeal. Rather, the Court under took to review a writ of actual innocence, which is an “OJ” proceeding. OJ stands for Original Jurisdiction, which means that the petition is filed directly in the Court of Appeals, not in a circuit court. Moreover, in the Court of Appeals the issue is one of factual innocence based on some evidence other than biological evidence. DNA cases go to the Supreme Court. If this sounds like a familiar entry to a blog post, it’s because we had a similar instance back in August of 2021 and then again in April of this year. As in those prior instances, the Court issued a published order, not an opinion. While technically there is no reason an appellate court couldn’t issue an “opinion” in an OJ case, the more usual course is to issue an order.
Unlike those to prior instances where the issues were fairly straightforward, I suggest you hang on tight, because today’s decision has more twists than the dance scene in Pulp Fiction.
The order in today’s case involves the petition of Terence Jerome Richardson, who was convicted upon a guilty plea of involuntary manslaughter in 2000. Now, those who know a little about appellate law will say, “Wait, doesn’t a guilty plea waive the right of appeal,” and of course it does (except under very limited circumstances). Remember, however, that while this case is being heard in the Court of Appeals, it’s not an “appeal.” A guilty plea does not waive the right to all post-conviction relief, so writs of habeas corpus, actual innocence, mandamus and prohibition and and coram vobis and coram nobis remain available to defendants who have plead guilty.
Now considering the facts, I would suggest that a plea to involuntary manslaughter was a particularly good deal and I can see why Richardson followed advice of counsel to take the plea. The facts, or rather the particular fact, that makes me think this was a good, maybe even great, deal is that the victim was a 25-year-old police officer who had been shot with his own service revolver. The incident took place in the town of Waverly, which is a small town in Sussex County on US 460. I’ve been through it many times on my way to Virginia Beach and the Outer Banks and I can assure you that it’s the sort of place where folks know everybody and would look dimly on the killing of a police officer — and that Sussex County is pretty much the same — Waverly is the largest town in the county, which has a total population of just over 10,000. Richardson was indicted for capital murder and almost certainly would have faced the death penalty — so involuntary manslaughter — the least significant homicide charge available — was a gift.
The evidence presented at the plea hearing showed that Richardson and two others had gone to an apartment complex to purchase drugs and had gone behind the apartments to a wooded area. While it is unclear what drew the officer to that same area, when he struggled with Richardson and was shot with his own weapon. Richardson later told an accomplice that the gun had gone off accidentally during the struggle. Richardson answered all of the questions at the plea colloquy appropriately. He was sentenced to 10 years imprisonment with 5 years suspended.
Now comes the interesting twist. Richardson was then indicted in federal court for conspiracy to distribute controlled substances, use of a firearm in the court of drug trafficking, and murder of a law enforcement officer. Knowledgeable readers (or at least those who remember their civics class for middle school) know that this last charge is not in violation of double jeopardy because the United States is a separate sovereign, and while it is unusual for federal prosecutors to pursue duplicative charges when a defendant has been convicted in a state court, it’s not unconstitutional to do so. So the twist is not that Richardson was charged with murdering the officer, but that he was acquitted of that charge along with the firearms offense.
Wow, I can here your say, this guy must be the luckiest son-of-a-gun ever. Well, not quite. You see at the sentencing for the conspiracy charge, of which he was convicted, the US Attorney argued that even though acquitted of the murder charge in federal court, the state court conviction could still be used to enhance the penalty for the conspiracy charge — and that meant a life sentence. The district court agreed.
Richardson appealed to the 4th Circuit, which affirmed and the Supreme Court denied cert. Habeas proceedings on the federal charge likewise did not result in overturning the sentencing. Richardson even sought clemency from President Obama, which was denied.
Which brings us to today’s decision in Richardson’s petition for a writ of actual innocence. As you have probably surmised, Richardson is not so much concerned about the five year sentence or the five year comeback time, but on finding a way to get out from under the federal life sentence. His case for actual innocence involves evidence that tended to show that a man with a similar appearance to Richardson, Leonard Newby, was the actual perpetrator. The accomplice had originally told police (after first denying any knowledge of the crime) that it was Newby who had shot the officer. He testified, however, that this was a lie and that he named Newby because of his similar appearance to Richardson. Richardson produced an affidavit from a women who was nine-years-old at the time of the shooting and allegedly saw the perpetrator fleeing the scene and selected Newby’s picture from a photo array. He also maintained that Newby had been identified as the perpetrator in an anonymous 911 call. Richardson claims he became aware of this evidence in 2018 or later. Richardson also asserted that his acquittal in the federal trial established that no reasonable trier of fact would have convicted him on the evidence presented at his plea hearing.
Now there is an even more interesting twist in a case chock full of them, in initially responding to Richardson’s petition, the Attorney General conceded that there was a basis for overturning conviction, or at the very least sending to case to the circuit court for an evidentiary hearing. Richardson’s luck, which had departed him in the federal appellate process had returned!
Or not. You see that response was filed back in 2021. Then there was a changing of the guard in the AG’s office, and the Commonwealth sought to withdraw its original response and submit a new one. The Court permitted the Commonwealth to do so, and that response was . . . ahem . . . decidedly not in favor of the Court granting the petition and setting aside Richardson’s conviction.
Today, the Court in a panel consisting of Judges Beales, O’Brien, and Fulton, dismisses the petition, finding that Richardson had not met his burden to establish by a preponderance of the evidence presented that he was actually innocent of the crime to which he plead guilty. Now one of the things that is required for the court to consider any evidence not presented in the circuit court is that it must be “new” evidence — that is, not evidence that could have been discovered by an application of due diligence by the accused or his counsel prior to the trial (or plea hearing). Now, unfortunately for Richardson, the Commonwealth had actually subpoenaed the nine-year-old child to testify at the prospective trial, so both her existence and her alleged identification of Newby could have been discovered with fairly minimal effort. Granted, if counsel had attempted to interview the child, her parent or guardian could have prohibited it. But there is no allegation her that the child, or her potential evidence, was withheld from counsel. In fact, the record established that the Commonwealth’s Attorney in Sussex had an “open file” policy and conducted a least one major discovery conference with defense counsel to review the Commonwealth’s expected evidence.
So why didn’t counsel follow up on this witness? Well, it’s purely speculation, but I think it’s fair to say that Richardson’s claim that the child “identified” Newby is a somewhat charitable description of the evidence. At best (from Richardson’s perspective) the child saw someone running away from the crime scene shortly after the shooting, but did not see the person’s face. The “photo array” did not show anyone from the front (as the child was had not seen the face), but instead showed “silhouettes” of side views of persons with different hair styles, and the child identified one style of dreadlocks, which both Newby and Richardson wore according to the accomplice, though Richardson now maintains that he wore his hair in cornrows. My guess is that counsel either decided that this evidence was not helpful, or was so intent on getting a reduced plea that he simply did not bother to follow up. While that may be a questionable choice, that would be an issue for habeas, not actual innocence.
With respect to the 911 call, the court noted that the call was anonymous and therefore the reliability of the caller could not be determined. Even assuming the call could have been presented at trial, it fall well below the standard for establishing the Richardson could not have been guilty.
Finally, the Court address the federal acquittal on the murder charge. And here is the final twist in this ever twisting case. Because being acquitted of murder does not equate to the impossibility of being guilt of involuntary manslaughter. You see, murder is an intentional crime which requires malice aforethought. There were also a lot of other factors required to be shown in the federal trial which would not have applied to a state involuntary manslaughter charge. So it’s entirely possible that the jury or trial court (the order does not say how Richardson was tried in federal court) may very well have believed that Richardson accidentally shot the officer, but did not murder him. Again, this does not meet the standard for actual innocence of the crime for which Richardson was convicted.
On final note. The Court did not say or even imply that had Richardson plead guilt to a murder charge that the subsequent acquittal in federal court would have been sufficient to support a writ of actual innocence — even though that was the basis on which the former Attorney General was conceding the merit of the petition. The Court was silent on this topic, but I will not be. The former AG was absolutely, positively WRONG to take that position. Why am I so certain? Because it is the longstanding law of Virginia (and every other state and federal jurisdiction) that verdicts stand on their own merits — inconsistent verdicts between two trials — of accomplices in the same jurisdiction or the same defendant in different jurisdictions — are perfectly proper. The trier of fact in one case may find the prosecution’s witnesses credible, which in the other case a different trier of fact decides the witnesses couldn’t lie straight in a narrow bed. Perhaps the court in one case admitted some evidence that was excluded in the other. Or perhaps the judge or jury just felt like being merciful on that particular day. In any case, an inconsistent verdict is not, without more, proof of actual innocence in a prior case.