Today the Supreme Court of Virginia held its first in-person writ panel since in the COVID endemic era — I believe that for the present this is the best that we can hope for. That is, recognizing that COVID will continue to be a concern, but not at the level of a pandemic. Unlike endemic flu, however, COVID will require, at least for the present, precautions beyond a recommended booster every 6 to 12 months.
For the Supreme Court, this mean limiting in person attendance to one counsel for each party and social distancing in the main Courtroom. The public and other counsel can listen on a live stream audio on the Court’s website. The two smaller hearing rooms are, for now, not being used. One panel of Justices sat in the morning and a second panel in the afternoon.
I have oral argument in the Court of Appeals in Salem next week and in Richmond on May 3. I assume that similar restrictions will be in place and the notice from the Court indicated that it remained possible that the Court would revert to telephonic/video conference arguments if COVID infections showed increased prevalence.
I am sure that my faithful readers are burning to know how the arguments went today. In the AM I was the appellee, so was only there to observe and would have done so by live stream had I not had to appear for the appellant in an PM case. The morning case counsel for the appellant gave a solid argument but got quite a lot of push back from the Chief Justice and Justice Kelsey, so I am feeling upbeat about my chances of avoiding a full merit brief and argument. The PM case received polite attention from the panel with just a question or two — but the last of these from Justice Powell, who was presiding, was distantly in the realm of “even if the Court of Appeals erred, is there really a substantive miscarriage of Justice here?”
Substantive justice is a concept that many attorneys have difficulty with because it’s not exactly “harmless error” analysis, but it’s also not a full-throated declaration that there was no error. Substantial justice is concept more appropriate to Courts, like the Supreme Court of Virginia as of January 1, 2022, that are entirely or almost entirely courts of discretionary appeal. This is not to say that the concept cannot be applied in Courts, like the Court of Appeals of Virginia, that are entirely or almost entirely courts of appeal by right. Substantive justice is, in some degree, a concession that our judicial process is nor perfect, by like the moral arc of the universe, bends toward justice even in its imperfection. If there is error in a lower court’s judgment, the error may not be so great as to warrant reversal of a substantively just result. This does not mean that the error was entirely harmless, but rather that correcting the error would not, in the long run, result in a more just result.
In my case today, I had hoped to convince the Court that the issue I was presenting needed to be corrected, not because it would definitively result in a different outcome, but because it would set right a condition that was off balance, so that perhaps if not for my client, then at least for some future litigant, the playing field would be more level.
I expect that the “Clerk will notify [me] of the panel’s decision” in both cases very soon and will report back when I do.
The Court of Appeals returns with two published opinion on this Tuesday, which also happens to be the first day that the Supreme Court has returned to in-person arguments for writ panels — which is why this post come to you from our fair Capitol City and not the Star City of the Blue Ridge as your humble correspondent is both presenting argument and observing argument.
Anita Shana-Nicole Simms v. Alexandria Department of Community and Human Services poses the question whether a circuit court has jurisdiction to consider a petition seeking termination of parental rights while an appeal of a prior determination of neglect and abuse is on appeal. The short answer, for those who are not interested in procedural minutiae (which IMHO you should be, but I get that not everyone is a procedural geek) is “yes.” The procedural minutiae are really not that complicated, but do tell a story that is tragically all too common in our society. Simms was a drug-abuser and had previously had her parental rights to three other children terminated. In June 2019, she gave birth to twins prematurely following a high risk pregnancy. Simms admitted that she had abused drugs during the pregnancy. Within a month of the birth, the Department made a finding of probable cause that the children were being abused or neglected and removed them from Simms’ care to foster care. The juvenile court found that the allegations of abuse and neglect were substantiated and approved a plan for return to custody of the children’s birth father or adoption. Simms appealed this decision to the circuit court.
While the appeal de novo was pending and after it was determined that the father did not wish to seek custody, the Department filed a petition to change the goal to non-family adoption which was approved by the juvenile court. The circuit court meanwhile found that the allegations of abuse and neglect were substantiated and Simms appealed this judgment to the Court of Appeals.
While the appeal of right was pending in the Court of Appeals, the Department filed a petition to terminate Simms’ parental rights and proceed to a permanent placement adoption. The juvenile court terminated Simms’ parental rights and approved the adoption. Simms appealed this decision and moved for a stay of the proceedings pending the outcome of the appeal of the abuse and neglect determination. The Department opposed the stay, contending that the termination petition was based on considerable evidence apart from the initial finding of abuse and neglect. The Department further contended that a delay in the proceedings would not be in the best interest of the children. The circuit court refused the motion for stay, but noted that the Department conceded that a reversal of the judgement of well-founded abuse and neglect would necessarily render the subsequent proceedings “null and void.” The petitions were approved by the circuit court, and Simms appeal this judgment to the Court of Appeals.
Although the Court of Appeals notes that the first appeal was resolved in favor of the Department, this does not resolve the issue of whether the circuit court erred in not staying the proceedings to await that outcome. The Court first addresses whether the circuit court had active jurisdiction (as opposed to subject matter jurisdiction). This question turns on the interpretation of the various statutes involved, which expressly reserve continuing jurisdiction in abuse and neglect matters while those issues are one appeal, but are silent on whether the court has jurisdiction to terminate parental rights pending an appeal of those matters. The Court concludes that the parties are not addressing the proper issue — because both assumed that the reservation of jurisdiction in one proceeding necessarily implied something — either positive or negative — about the jurisdiction in a related, but separate, statutory process. Because termination of parental rights is a separate proceeding from removal for abuse and neglect, the reservation of jurisdiction by statute in the latter has no impact whether the circuit court can exercise jurisdiction in the former.
The Court next addresses whether the circuit court abused its discretion in not staying the proceedings because, while the pending appeal did not impact the court’s jurisdiction, it did nonetheless have a potentially significant impact on the outcome of the case, as the Department acknowledged. Because this is a matter committed to the court’s discretion, and because there was considerable evidence apart from the finding of abuse and neglect that Simms was not capable of regaining custody of the children, the Court of Appeals concludes that the circuit court did not abuse its discretion. A challenge to the sufficiency of the evidence is likewise found to be without merit.
Jacques Lamar Walker v. Commonwealth of Virginia involves charges stemming from an armed bank robbery with four victims. The principal issues are whether the evidence showed that Walker “abducted” one of the victims for pecuniary gain and whether the circuit court correctly charged the jury that it could find that the second, third and fourth use of a firearm in the commission of a felony were “subsequent offense” because Walker threatened all four victims simultaneously. There are additional issues concerning an in court identification and the search of Walker’s cell phone.
Abduction is often charged along with armed robbery, and requires the Commonwealth to prove that the victim was detained in a manner which exceeded that necessary to accomplish the robbery. Here, the evidence was that Walker struck the victim who then fell to the floor and remained there until the robbery was complete and Walker had left. Walker contends that because he never verbally ordered the victim to the ground that the the blow was not sufficient to force the victim to the ground, the victim voluntarily chose to lie down rather than as the result of any overt action by Walker. The Court of Appeals disagrees, saying that Walker’s argument “stretches the concept of voluntariness beyond its breaking point and ignores the context—an ongoing bank robbery—in which the events occurred.”
With respect to whether convictions for use of a firearm are “subsequent” convictions when obtained in the same trial, the Court notes that its prior decisions have held that when a conviction for use of a firearm is obtained in a separate proceeding, the conviction cannot be treated as a subsequent conviction is no final order has been entered in a prior proceeding where a conviction for use of a firearm was obtained. Here, however, the convictions were all obtained in a single proceeding based on a single transaction — thus Walker’s guilt or innocence rises or falls on all four convictions together, thus either there is an initial and three subsequent offenses or none at all
On the suppression issues, the Court addresses the particular statute that Walker replied upon in seeking to suppress the evidence of the cell phone search based on a defective warrant. The phrase in that last sentence is that Walker relied upon a “particular statute” and not the 4th amendment. The majority finds that Walker’s reliance on Code § 19.2-56(A), which contains no exclusionary remedy, dooms Walker’s appeal because the remedy he sought, exclusion of the evidence, was not available under the basis of his argument.
A majority of the panel also affirms on the identification issue as one committed to the circuit court’s discretion. But this decision garners a dissent from Judge Lorish. The majority inserts a footnote in which it says that Judge Lorish’s issue is based in a general distrust of eyewitness identification. Given that the defendant was well disguised and the testimony was based on the victim “remembering his eyes,” this is probably a valid criticism by the dissent — but not one that has yet gained purchase with the appellate courts in Virginia.
Finally, while Judge Lorish felt constrained to accept the majority’s view on the three subsequent use of a firearm convictions under the precedent of prior cases, the dissent notes that this result is somewhat absurd in its view in that a conviction not yet final in a separate case cannot be used as a qualification conviction, but a conviction not yet final in the same case can be. Expect to see a petition for rehearing en banc and/or a petition to the Supreme Court on at least the two issues raised by the dissent.
The Court of Appeals issued a published decision by order last week, and as it was an original jurisdiction matter, which is somewhat outside the purview of this Blawg, I thought I would wait a week to see if there was something more in the way of a published appellate decision to fill this space . . . but the Court issued no published decisions this week — original jurisdiction or otherwise. So, rather than leave you, dear reader, bereft of any prose for a second week, I shall report on the aforementioned OJ order.
Steven Emanuel Parson v. Commonwealth of Virginia, as I mentioned, was an original jurisdiction matter decided by a published opinion. The jurisdiction was actual innocence, which in the Court of Appeals means a claim that “I didn’t do it” based on “non-biological evidence.” Cases based on DNA go to the Supreme Court. When either court receives a petition asserting actual innocence, they court has three options: 1) Refuse the petition as insufficient to meet the standard required, 2) send the case to the original trial court for an evidentiary hearing, or 3) grant the petition (either based on the filed record or after an evidentiary hearing order under option 2). In Parson the Court of Appeals opts for option 1.
The facts of the original case against Parson were fairly straight forward. Parson’s girlfriend, who worked as an escort, was beaten up by one for her clients, Dejon Wagstaff. When Wagstaff contacted the woman for another “date,” Parson and Timothy Garrison intercepted Wagstaff and shot him to death. Parson subsequently entered a guilty plea to charges of first degree murder and use of a firearm. The evidenced proffered by the Commonwealth included forensic evidence and testimony of three disinterested witnesses.
Parson subsequently filed a habeas corpus petition contending that his trial counsel had not adequately reviewed the evidence before counseling Parson to accept the offered plea deal. The petition was denied.
This brings us to the Writ of Actual Innocence petition. Parson proffered an affidavit from Garrison purporting that he acted alone in the killing of Wagstaff and that he acted in self defense. As recounted in the affidavit, the killing of Wagstaff was nothing like the crime the Commonwealth’s proffer had made out in the plea hearing — and was in many points at odds with the eyewitness evidence. It should be fairly obvious that this affidavit of a co-defendant was not going to be sufficient to establish that no reasonable trier of fact would be able to find that Parson was wrongfully convicted.
So, why did the Court of Appeals decide to publish the order dismissing Parson’s petition? Well, it seems this is the first such petition that has been filed in a case where the petitioner pled guilty in the original proceeding. The Court briefly discuss what impact the guilty plea (and its concomitant agreement that the defendant agrees that he committed the offense) should have on a subsequent claim of innocence. Distinguishing In re Watford, a Supreme Court of Virginia case, the Court concludes that a trier of fact would have to give significant weight to guilty plea even though there may be reasons a defendant would enter such a plea that might not necessarily include his actual guilt. It is, says the Court, one of the factors to be considered in determining the plausibility of the defendant’s claim of innocence.