Time for another rant. Yesterday, NASA announced that it was having to delay its first test mission for the planned return to the moon. On social media and news comment threads, the comments were mostly negative, with many calling for NASA to be defunded as a “waste of taxpayer money.” I particular liked the comments that focused how projects like this were “what you get when you elect democrats” and “we need Trump back to kill” wasteful programs. (Editor’s note: these are approximate quotes — the actual ones were, shall we say, more colorful in describing the current administration and its politics). In case, like those posters, you have forgotten, the pledge to return to the moon was a centerpiece of Trump’s Space Force initiative.
These sentiments are hardly new or merely a product of the current “everything is about politics” divide in the nation. Many people want to completely privatize the space industry, claiming that NASA’s $23.3 billion annual budget is an example of unnecessary government spending that has no real benefit for the taxpayer. They maintain that private industry can “do a better job” of launching satellites and universities should pay for “luxury” projects like space telescopes.
NASA’s budget is 0.6% of the federal budget, about $70 per citizen. Admittedly, that’s not chump change. Those funds could be used to provide a tax rebate of several hundred dollars to families (more if limited to middle and lower incomes) or fund 11 days of the military budget. But what would we lose if we privatized NASA’s mission?
Well, first, the cost of just about everything would go up, because every consumer product either directly or indirectly benefits from space-based technology. Even with nascent private space launch companies trying to pick up the slack, their costs would skyrocket (pun intended), and these costs would eventually be passed along to the consumer. Although NASA is an independent agency, it works closely with the Commerce Department and NOAA to make certain that we have state-of-the-art weather forecasting technology. The Department of Agricultural depends on NASA data for crop forecasts. The Department of the Interior depends on NASA data to track forest and aquiculture resources. All of these benefits would have to be supplied by private industry going forward at profitable rates for the suppliers.
And then there is the military. Yes, the various service branches all have their own suborbital missile technology and perhaps the capability of launching low orbit satellites (along with the NSA and CIA), but the expertise for these missions comes primarily from NASA. So we would still need to have our own space program (unless we are willing to trust our military and intelligence resources to for-profit, likely multinational corporations).
However, all of these contributions are dwarfed by one small office within the NASA administration. NASA has a “technology transfer program” which provides industry and individuals with innovative products developed by its engineers and scientists at no cost or for very low cost licenses (a portion of the license fee goes to the employee(s) who developed the product as a bonus). While no one keeps track of the actual benefit of this program, even conservative estimates show that the benefit to the American economy far exceeds the cost of NASA’s budget. Since the program was begun in the late 70s (before that, technology was made available, but with greater restrictions because of the Cold War), it’s impact has contributed trillions of dollars the the US’s GDP.
Finally, there is the “WOW factor” of space exploration. Many of the technology innovations that have proved financial boons for the economy were developed from space exploration programs, but even discounting those benefits, the scientific data gathered from these missions has significant impact on the advancement of our understanding of the Universe. And, yes, pretty pictures of planets and nebulae and comets and gaseous clouds. I am not suggesting that these benefits alone would justify NASA’s continued funding, but they are definitively a very nice extra benefit.
End of Rant.
In hopefully what is not a sign of things to come, the first month of the New Year passed without a single granted appeal from the Supreme Court of Virginia. This is not unusual. Last year the court did not grant an appeal until February 9, and that was the only grant that month. But the Court only granted 6 cases in December following the last writ panel of 2021.
The Court will already be facing a dwindling supply of potential cases while the Court of Appeals grows accustomed to its new role as the primary court for all appeals. Civil cases that just a month ago would have gone directly to the Supreme Court by petition, now must first make a stop in the Court of Appeals as appeals of right. One has to assume that some, perhaps a majority, of these cases will not be appealed to the Supreme Court because 1) having a written opinion to contest with tends to limit the flexibility of the appeal, and 2) having already spent money on the appeal in the Court of Appeals, many litigants will not want to “chase good money after bad.”
The Supreme Court has for several years now been granting fewer appeals and publishing even fewer decisions in those cases that have been granted. With no new cases in the pipeline for January 2022, one has to wonder if the Justices will be idle even before the summer recess. It’s a bit difficult to judge the current number of appeals waiting for merit argument because the Court’s webmaster has not been removing “appeals granted” from the website after they are decided as was irregularly done in the past. The Court granted just 59 appeals in 2021, and more than a few of those have already been briefed, argued and decided. The cases argued in the first merit session at the beginning of January had been granted as recently as July 2021, and only 29 cases were granted later in 2021.
Of late, the Court has been hearing fewer than 20 cases in a merit session, and in January it was just 10. So its possibly they could here roughly the same number of cases in February, April and June and then have more cases ready for September if they grant some more in the upcoming February writ session. Cases granted after the April or May sessions likely would not be ready for argument before October — and these session are likely to very sparse in any case because they will be the first ones without new civil cases appealed from the circuit courts.
Today’s lone published opinion from the Court of Appeals, Dwayne Allen Ray, Jr. v. Commonwealth of Virginia, has a certain dramatic “Law and Order” feel to it. It also calls to mind a tune by Queen that starts with an iconic bass line. Mostly, however, it evokes the aged old debate of whether there is honor among thieves, or in this case, drug dealers.
We’ve all seen an episode of a police procedural drama where the police “flip” one suspect to get incriminating evidence on a “bigger fish.” This is actually a common practice when police have a low-level drug offender and want to move up the chain of distribution. In today’s opinion, the “little fish” was Jeremy Cumbee, and the slightly larger fish was his “best friend” (hence the Queen reference) who he knew as “Squirmy.”
Squirmy, whose real name he thought was “Dwayne Wood,”, was Cumbee’s supplier for cocaine. Cumbee in turn apparently sold cocaine that he acquired from Ray to an unnamed even smaller fish, who turned out to be working as a confidential informant (“CI” in cop show speak). Cumbee was arrested after a controlled buy and in turn agreed to work as a CI.
After Cumbee gave police information on Squirmy, they identified Ray as the likely suspect based on the approximate address given to them and a search of his social media accounts that confirmed he used the alias “Squirmy.” Police then showed Cumbee Ray’s DMV photo and Cumbee confirmed that this was the person he knew as Squirmy.
At the direction of the police, Cumbee set up a buy from Ray. Before going to make the drug buy, police again showed Cumbee the photo and he confirmed that this was the person he expected to meet. Cumbee then went inside the residence that police had identified as Ray’s and emerged a short time later with cocaine. Police showed Cumbee the photograph a third time and he identified the person in the photograph as the person from whom he had just purchased cocaine.
Prior to his trial for distribution of a controlled substance, Ray sought to suppress the evidence derived from the controlled buy, asserting that Cumbee’s identification was tainted because the police had only shown Cumbee one photograph. If you are a fan of Law and Order or similar shows, you’ve seen a “photo array” or “picture lineup” where typically six different photos are placed in a manila folder with rectangles cut out of one side, or perhaps they are just lined up on the table, and you are thinking, “Yeah, just being shown one photo seems pretty suggestive.”
Here’s the thing, it’s not per se improper to use a single photo to identify a suspect. As with most issues in the law, context is everything. Typically, a single photo identification is going to be considered highly suggestive where the witness does not know the suspect but has only seen him once. That was not the case here, where the police were not asking Cumbee to identify a stranger but asking him to confirm that this was the “best friend” he had already identified to them.
There is another important difference between this case and the “typical” photographic identification – the first two times Cumbee was shown the photograph no crime had yet been committed. Cumbee wasn’t identifying someone who had sold him drugs (or at least not the drugs that Ray would later be charged with selling), but someone he expected to be able to buy drugs from.
This may seem like a slight distinction, but it is one of sufficient note that it likely explains why the Court decided to publish this opinion. Although the Court does not expressly say so, it appears that this may be an issue of first impression in the Commonwealth. Indeed, the Court cited to a Maryland case to support its decision upholding the trial court’s overruling of the motion to suppress, something that the Court rarely does if there is good Virginia case law on a subject.
At trial Ray also challenged Cumbee’s in-court identification, again contending that it had been tainted by the single photo identification. Of course, there was one other opportunity for Cumbee to identify Ray – when he bought the cocaine from him. As Cumbee was subject to cross-examination, the credibility and accuracy of his identification both during the controlled buy and in court was clearly a matter for the jury to determine.
Ray also raised a perfunctory challenge to the sufficiency of the evidence, primarily attacking Cumbee’s credibility given that he was a convicted felon and a snitch. He also argued that his own evidence, which was that he had ceased living in the residence sometime before the controlled buy, rebutted the Commonwealth’s evidence that Ray mas present in the home on the day of the buy. The Court notes that even if the jury believed Ray’s evidence that he was no longer residing in the home, this did not exclude the possibility that he was using it as a place to transact his elicit trade. In fact, the evidence showed that he continued to pay the utilities for some months after he alleged he had ceased living there.