The sole published opinion from the Court of Appeals today is from cross-appeals in a dissolution of marriage case. I am guess that the parties in John Stark v. Firouzeh Dinarany did not share Thanksgiving dinner last week. Stark objected to the circuit court’s admission of a post-nuptial agreement into evidence and its equitable distribution, while Dinarany objected to court’s rulings on support, equitable distribution and attorney’s fees (there was also an issue of child support with she “conceded” along with two other of her eight assignments of error — a word about this can be found at the end of the post). All in all, a fairly garden-variety divorce appeal with a perhaps slightly less than run of the mill set of facts.
Let’s start with the marriage, which lasted some less than a decade and produced one child (Dinarany had a child from a previously relationship). At the time of the marriage Stark was a member of the US Army (the opinion does specify whether he was enlisted or an officer) and four years into the marriage with 25 years in, he retired and took a diplomatic post with the State Department. If you know about military service pensions, you know that with 20 years, a service member can retire and begin receiving benefits immediately even if employed in another area of government.
After the couple separated in 2019, Dinarany continued to reside in the marital home with the children and “cancelled” a prospective lease. Stark continued to pay the mortgage on the home until he placed it in a forbearance program.
Now the introduction mentioned a post-nuptial agreement, but the couple also have a pre-nup which had a “no alimony” provision. The post-nuptial agreement was executed four years into the marriage which purported to “nullify” the pre-nup. Interestingly, neither party referred to either document in their initial pleading.
Stark, who filed for divorce on the grounds of dissertation, would subsequently produce the pre-nup in discovery asserting as the basis for denying Dinarany spousal support. Although Dinarany would subsequently maintain that she produced the post-nup which her attorney maintained was sent to opposing counsel, opposing counsel denied any knowledge of the post-nup.
At trail, Stark, or rather his counsel, did a peculiar thing. After testifying about the pre-nup, and only the pre-nup, he moved to have both agreements received by the trial court. The court, perhaps as perplexed by this turn of events as your reporter, indicated that it was his understanding that the parties were disputing the enforceability of the post-nup. Stark’s counsel, however, stated that he had no problem with the post-nup being admitted to evidence and then acknowledged that her client knew the agreement existed and “we’re not objecting to that”,” noting only that it was “produced after the [discovery] deadline.” Those statements are quite an about face (military allusion intended) from the pre-trial stance.
Thus, the issue became not whether there was a post-nup, but whether it was effective to “nullify” the pre-nup. I won’t bore you with the details because, as mentioned in the introduction, Stark only challenged the admission of the post-nup, not the court’s ruling on its application. However, I will commend to the reader to page six of the opinion for a quote from Stark’s counsel responding to a question from the bench about where her client resided (a factor in determining whether the post-nup was effective) — because, while it was a perfectly proper response from the perspective of avoiding a possible disadvantage for her client, I seriously doubt that it endeared her to the trial court because the subtext of the answer was “Judge, mind your own bee’s wax.”
In any event, the court found the post-nup was enforceable and so awarded support to Dinarany as well making other rulings with respect to the marital property for equitable distribution. However, the court did not award any portion of Stark pension to Dinarany.
Stark’s assignment of error challenged the admission of the post-nup on two grounds. First, he contended that it should have been excluded because it was produced after the discovery deadline. If you were paying even moderately distracted attention to the recitation of how the post-nup was admitted, you know that this argument went over with the Court like a lead balloon. In fact, the Court found quite a few reasons why the court’s admission of the post-nup was perfectly proper — but the most interesting reason had nothing to do with the fact that Stark was objecting to the court having received into evidence that he had proffered and which his counsel practically begged the court to accept. No, it was a different peculiar fact — one that you might have missed, so let me repeat it — “neither party referred to either document in their initial pleading.”
Why is that important? Well, because even though Virginia is a “notice pleading state” it is also “firmly established that no court can base its judgment or decree upon facts not alleged or upon a right which has not been pleaded and claimed.” In short, the first reason Stark could not complain about the post-nup nullifying the pre-nup is he never told the court he was going to rely on the pre-nup to wiggle out of paying support.
While the Court goes on to acknowledge that even if Stark could have relied upon the pre-nup (for example, if Dinarany had introduced it or conceded its application), he was the one that introduced the post-nup and then (through hos counsel) decided to play cutesy in responding to the court’s question about his current residence.
Dinarany’s appeal is much more of the garden variety that the initial impression of the case would have led one to believe. With respect to equitable distribution, which both parties beefed about, the determination of which is committed to the trial court’s discretion, the Court leave the judgment undisturbed. This is a sound decision under the principle that if both parties are unhappy with the result, the court got it right. The same result applies to Dinarany’s complaints about the amount of support and an award of attorney’s fees as a sanction for the late discovery.
There was one small victory for Dinarany, however, with respect to the court’s failure to award her a portion of Stark’s military pension. Here’s the thing about defined benefit pensions — if any portion of the pension was earned during the marriage, then some portion of the pension benefit is marital property and must be included in the equitable distribution. Since the evidence clearly established that some portion of the pension was earned during the marriage, Dinarany is entitled to some portion of that portion — so the court was plainly wrong in denying her any portion. The question is, how much?
Now with most pensions, especially those that are not yet being paid out, this can be a complex issue. However, on remand the trial court is going to have some help from the US Code, which has a neat little section all about figuring out how to divvy up a military pension. While there are a number of factors that can be asserted the change the basic calculation, no court has ever gone wrong by following the presumptive formula found in the Code and I am willing to bet that the court in this case will follow that formula to the letter.
Now, as promised, a word about Dinarany’s counsel “conceding” 3 of the eight assignments of error. I will be quite frank and say that I was confused by the court’s footnote at the beginning of the opinion saying that Dinarany had “conceded” her assignment of error on child support. Why would one assign error to some aspect of the judgment only to “concede” it on brief. Occasionally one will have to concede a point at oral argument where, for example, there has been an intervening decision rendering the point moot. But why would you assign error only to immediately concede the point?
Well, it turns out that Dinarany was on her (at least) third counsel who took over from the original appellate counsel who took over from trial counsel. This is revealed in a subsequent footnote explaining why two of the assignments of error relating to equitable distribution were also “conceded” because the first appellate counsel hadn’t noted that the issues were not preserved by the trial counsel. Now I am going to have to make a leap here, because that was the extent of the information in the footnote — i.e. that the counsel conceding the assignments of error was not the one who had raised it — but there is only one way in which the first counsel could have “raised” the assignments of error in an appeal of right, but not written the opening brief in which their lack of preservation was conceded. Rule 5A:25 requires the parties to attempt to agree on the content of the appendix — but if they can’t — then when designating the appendix separately, they must file with the clerk of the Court of Appeals a statement of the assignments of error.
Given the animosity of the parties and the fact that there were cross-appeals, there’s a more than fair chance that the parties did not agree on the appendix and Dinarany’s counsel filed the required notice with eight assignments of error. It would be more speculative to wonder if Dinarany fired this attorney when it was discovered that three of them were not preserved — but for whatever reason the new appellate counsel was probably wise to concede these points rather than attempt to make an ends of justice argument.
With the state government taking an extended break for Thanksgiving, the Court of Appeals issued 4 published opinions and 3 unpublished one on the last full day of work this week. It’s not atypical for the appellate courts to issues a flurry of opinions at this time of year as they try to wrap up pending cases before the “second half of December rule” kicks in – If you are not familiar with the rule, you are certainly familiar with its effect – Nobody does diddly the second half of December. The three unpublished opinion were all from dissolution of parental rights cases and all were affirmed. The four published opinions were more of mixed bag, with a criminal conviction appeal addressing the merits, an appeal from a criminal conviction where the issue is denial of a pre-trial motion for a competency evaluation, a Commonwealth’s appeal in a bond case, and and administrative appeal involving the alleged physical abuse of a student by a teacher. Let’s start with the two criminal appeals.
The appeal that addresses the merits of the conviction is Thomas Othel Thompson, Jr. v. Commonwealth of Virginia. Thompson was convicted of possessing a plastic bag of “loose plant material” which the Commonwealth maintained was “raw” marijuana and which Thompson maintained was lacking a sufficient percentage of tetrahydrocannabinol, better know as THC, to constitute anything illegal – as you can probably guess given the current state of the law with respect to individual possession of marijuana for person use, this conviction stems from an arrest that pre-dated the change in the law. In any case, the amount of the “plant material” was not necessarily consistent with personal use (although the exact weight is not given).
The Commonwealth presented a certificate of analysis which identified that plant material as “marijuana,” but further noted that the concentration of THC was “not determined.” However, Thompson presented a bag with an identifying mark showing that it was from a “hemp farm” and contained less than 3% TCH when cross-examining the arresting officer. .
Now those of you who know that the Court of Appeals does not take criminal appeals that are “open and shut” cases to the merit level are probably thinking that this case is about the difference between marijuana and hemp, or at least that is what I assumed when I read that portion of the opinion and then learned that Thompson moved to strike the evidence at the conclusion of the Commonwealth’s evidence and, having failed to get the charge dismissed, elected not to put on his own case. What difference does that make, you ask? Well, a lot.
The main difference it makes is that there is no evidence that Thompson or anyone else testified that the plant material was hemp. The Court of Appeals further noted that the bag used by Thompson’s defense counsel was not the bag that material was found in, nor was it admitted into evidence, but was merely a demonstrative aid. So, in effect, we have a police officer testifying that, “Yes, indeed, there is a similar product to marijuana call hemp,” but no assertion from Thompson that what he possessed was hemp.
So what was Thompson’s argument? It was the creative suggestion that the Commonwealth had to prove the plant material wasn’t hemp. The circuit court was having none of this, noting that the plant material was not a “hemp product,” that is something manufactured from hemp, to which the 3% limit applied, and there was no evidence that Thompson has a licensed hemp dealer who could lawfully possess raw hemp.
In affirming, the Court of Appeals takes a slightly different approach. Without finding fault in the circuit court’s observation, the Court nonetheless focuses more on the question of whether the Commonwealth might in fact have a burden to prove that the THC content of the plant material was in excess of 3%. It concludes that it does not as the statutory scheme expressly says that the Commonwealth does not have to “negative any exception” once it proves that the substance in question is marijuana. In other words, the certificate of analysis stated that the plant material was marijuana, and this is dispositive to the Commonwealth’s prima facie case – the burden to negate that assertion by showing that the plant material was within the “hemp exception” therefore shifted to Thompson, who presented no evidence with respect to the material’s nature.
Eric Torez Clark v. Commonwealth of Virginia deals with an issue that perpetually vexes criminal defense attorneys – the prevalence of mental health issues among those facing criminal charges is significantly higher than in the general population, but at what point does a client’s mental health result in an inability to provide an effective defense? The standard for trying a defendant is know as “competency” and it has two prongs: First, the defendant must be able to understand the nature of the criminal charges against him, the proceedings that will determine his guilt or innocence, and the consequences of his being found guilty; second, he must be able to provide meaningful assistance to his counsel in preparing a defense to the charges.
Now, believe it or not, the average criminal defense attorney does not also have a degree in psychology. Here is an even more surprising fact: Criminal defendants are often not particularly cooperative with their defense attorneys and have a tendency to lie. Shockers both, I know.
So, how does a defense attorney convince a court that his client needs to be evaluated for competency without calling in an expert to evaluate the client? The answer, surprisingly, is that the attorney simply needs to ask and typically the court will oblige. Why? Because if the client is not competent, then any trial will be automatically ruled invalid. It varies from jurisdiction to jurisdiction, of course, as to whether the Commonwealth will object to a competency evaluation, but it’s pretty rare for a judge to not order an evaluation – though this usually means a delay of a few months as the availability of qualified individuals to perform such evaluations is fairly limited.
Clark was charged with a drug possession and two firearms offenses. Clark’s appointed attorney asked the court for a competency evaluation reporting that he had difficulty communicating with Clark, who had a documented history of schizophrenia and paranoia, and spoke of his arrest as being part of “conspiracy theories.” Now, excuse me for thinking that this a no brainer for the judge, but apparently it wasn’t because the court denied the motion, accepting the Commonwealth’s argument that the defense counsel’s proffers were not sufficient (even though the proffers included statements from Clerk’s sister attesting to his previous mental history).
Clark’s initial counsel was granted leave to withdraw when he continued to represent that he could not get Clerk to cooperate in formulating a reasonable defense. Clark’s new counsel likewise had not success in dissuading him from wanting her to present evidence of the conspiracy in which he claimed to have been ensnared and again moved for a competency evaluation. This motion was supported by additional evidence, including letters written by Clark in which he asserted he was working for the FBI, and that Clark was then being treated with an anti-psychotic medication.
The Commonwealth objected again, and this time had a little ammunition of its own. It seems Clark’s girlfriend had unwisely discussed his situation with him on a phone call. The recording made by the jail (yes, once again we need to remind folks that those signs which say all calls are monitored are not there to cover-up stains on the visiting room walls) had the girlfriend assuring Clark that he would not be convicted but have to spend a year receiving psychiatric treatment. Notable, she told Clark that he didn’t have “play crazy,” because records already established that he had mental problems. Although Clark said almost nothing on the recording played for the court, the Commonwealth nonetheless maintained that he was clearly malingering by faking mental instability.
Now once again, if I had been the trial judge, I would have considered this a no-brainer. The case had already been delayed by one appointed attorney having to withdraw and now another was clearly not willing to proceed. The choice seems obvious, order Clark to be evaluated by an expert and be back in a few months with an expert opinion or start over with a third defense attorney with a new motion for an evaluation in a few months. If the evaluation comes back stamped competent, I’ve got my cover for being overturned, and if not, Clark goes off to the only slightly not as bad accommodations of the nearest state hospital forensic ward (actually, I hear Chesapeake, where this case comes from, has a pretty decent jail where as Eastern State Hospital has a pretty poor reputation for its “hospitality”) for six months and is either declared restored or not.
Once again, however, the trial judge didn’t see it that way. Agreeing with the Commonwealth that the counsel’s representation were not “evidence,” the court denied the motion. And this brings us back to my original statement of the conundrum for the defense attorney – how do you get evidence of your client’s incompetence in order to get an order to have him evaluated for competency?
In this opinion the Court of Appeals answers that question in exactly the way any sensible person would: You don’t need to present “evidence” of your client’s incompetence to get a competency evaluation, that’s what the competency evaluation is for. Rather, you only need to establish “probable cause” to believe that the defendant’s competence is in question.
The Court concedes that past history of mental illness is not by itself sufficient to support a motion, but it notes that when such evidence is supported by an attorney’s statement, given as an officer of the court, that a client does not appear to understand the nature or of the proceedings or is not able to offer assistance in preparing a defense, the court should take the attorney at his or her word. The court should look at the totality of the evidence before refusing a competency evaluation, because the court should start from the presumption that due process requires a high level of certainty that the defendant is capable of being tried.
Here, the evidence against competency consisted of 1) prior mental health issues, 2) current statements from the defendant that indicated delusional thinking, and 3) states of two officers of the court that the defendant was not able to render assistance in preparing his defense. This evidence (yes, the Court made clear that the proffers of counsel are “evidence” in the context of this proceeding) was sufficient to support the motion and was not outbalanced by the phone conversation which, honestly, was ambiguous as to whether Clerk’s girlfriend was encouraging him to fake incompetence or pointing out that he was, in fact, mentally ill.
Given that the standard for denying a pre-trial motion of this type is abuse of discretion, the Court is quick to point out that it does not believe the trial court really abused discretion in this case. Rather, the Court makes the face-saving observation that the trial court simply applied the wrong standard in not taking the counsels’ proffers as reliable evidence to support their motions. Had the trial court applied the proper standard, it clearly would have reached the right result.
One final point for this case – Clark’s girlfriend was wrong in asserting that he could avoid jail by instead getting psychiatric treatment. Competence pertains only to whether the defendant can be tried, not to the determination of guilt and innocence. There is no such thing as “not guilty be reason of incompetence.” In fact, if the defendant is determined to be “unrestorably incompetent,” he could end up spending more time in the state hospital than had he been tried and convicted, up to and including, his natural life. More to the point, even when a defendant is found to have been insane at the time of the offense (a much more difficult think to prove than incompetence), he is not released upon a finding of not guilty by reason of insanity – rather he will be automatically committed to the care of the state hospital. In short, faking incompetency or insanity is not the “get out of jail free card” that most TV shows and films dealing with the criminal justice system would have us believe.
The last of the opinion from this week arising out of the criminal justice system falls into another category which, like marijuana possession, has undergone a lot of changes recently – when to release a defendant on bail. It also falls into that unusual category of appeals where the Commonwealth can seek review of a trial court’s decision. Commonwealth of Virginia v. Tyekh Chamon Davis involves a decision of the circuit court to grant bail to a defendant who had been awaiting trial for 20 months. Now, as Virginia’s speedy trial statute requires a defendant who is incarcerated to be brought to trial within 5 months (and 9 months if not incarcerated), this fact alone suggests that the delay in bringing Davis to trial was not entirely the fault of the Commonwealth – nor was it entirely, or even significantly, the result of the COVID pandemic.
A brief aside here to mention that several of the Emergency Judicial orders issued by the Supreme Court of Virginia have purported to suspend the speedy trial statute. Whether the Court had the power to do this, and if so whether the use of the purported suspension has resulted in any criminal defendant being untimely tried, has not been resolved – and may never be as it is unlikely any defense attorney had the prescience to make objections sufficient to raise the issue without thereby alerting the Commonwealth, which can solve the problem by trying the defendant before the time runs or nolle prossing the charges and reindicting.
Anyway, back to Mr. Davis’ bid for temporary freedom. Davis apparently spent much of the 20 months he was behind bars asking to be given bail and being turned down. However, the trial court finally agreed and set bail at $10,000 along with numerous other conditions. The Commonwealth was most displeased with this decisions, primarily because it had contended that Davis was a gang member and not really the sort of person to be “walking the streets” in the parlance of Hollywood.
This appeal turns not so much on whether Davis ought to have been given bail, but on what the court is required to do in order to render such a decision. Specifically, the court has to make express findings as to why its granting bail and here, at best, it only opined that Davis’ long stent awaiting trial was not fair. That, says the Court of Appeals, is not sufficient, particularly given the need for the court to make specific findings regarding the defendant’s potential risk of flight and dangerousness to the public. The case is remanded so the trial court can reconsider and make appropriate findings.
As mention at the beginning of the discussion in this case, the law regarding bail has recently undergone a significant change and, at least respect to non-violent felonies, the presumption is now in favor of bail and the court must say why it is denying it. Alas, this will not help Davis, who was charged with possession of a firearm after having been convicted of a violent felony – an offense that still has a presumption against bail.
The final opinion in this group of four is Rebecca Benedict-Miller v. Virginia Department of Social Services. Benedict-Miller was a public school teacher who taught a special education class. The facts of the case are disturbingly familiar to anyone who has experience of the special education system in Virginia, or frankly anywhere. Although the school administration and teachers are well-meaning, they simply do not have the facilities, training, and budget to provide truly meaningful education to those students who have intellectual and physical challenges that preclude them being “mainstreamed.” I know this from personal experience as the parent of a child on the autism spectrum. Accordingly, I have a great deal of sympathy for Benedict-Miller, but sympathy is not a consideration for the law.
In this case, the law has to be applied to Benedict-Miller’s attempt to control a special education student who had assaulted another student and the resisted Benedict-Miller’s efforts to remove her from the classroom and take her to a therapy room. Although another teacher offered assistance, Benedict-Miller declined and ultimately dragged the student to the therapy room. In the process the student suffered rug burns and other minor injuries.
The case was referred to the Department of Social Services which determined that Benedict-Miller had willfully failed to follow proper procedures for dealing with the student and, thus, was not protected against an allegation of abuse.
The opinion goes into significant detail discussing Benedict-Miller’s assertions of procedural error and the conclusion that she acted willfully, rather than negligently, the ultimate conclusion by the Court of Appeals is that there was no error and the finding of willful abuse is upheld. This is devastating for Benedict-Miller, who will not be able to return to teaching in any capacity in the public schools and will likely will not find employment in any other education setting. There is no doubt in my mind that Benedict-Miller regrets her actions and that she was undoubtedly operating under tremendous stress. Unfortunately, these are systemic problems that cannot be considered as mitigating the consequence of her action – and those problem persist.
Have you noticed that, according to their critics, American politicians are concurrently Nazis (imposing vaccine mandates/separating immigrant families), Socialists (expanding Medicaid/favoring specific industries), Communists (Infrastructure spending/umm . . . no right wing equivalent here, sorry), and Anarchists (defunding the police/eliminating environmental regulations) and above all <gasp> Capitalists (just about every other policy initiative of both parties)? That’s a pretty neat trick and, according to the critics, it is not how things were done in the “good old days” (which means the last time the party the critic favors was in power for any appreciable length of time).
Except of course, it’s not a trick and it’s not particularly new. It’s just how a democracy works. We need to stop conflating political theories (communism, socialism, capitalism, national socialism, nihilism) with political systems (monarchy, democracy, oligarchy, theocracy, autocracy, kleptocracy, plutocracy, anarchy).
To the extent that any of these actions are actually occurring, they are all examples of a democracy operating under the Rule of Law — because they are being done by democratically elected representatives following proscribed processes and subject to review by an independent judiciary. Socialized medicine is a “socialist” policy, but when adopted by a democratic process, it is also a democratic one. Imposing health and safety requirements is an exercise of a “police power” and, thus, is the action of a “police state” (which is, irrespective of what the Hitler regime and other similar regimes did with that power, the essence of national socialist political theory), but when adopted by a democratic process, it is also a democratic one. Even a complete abnegation of responsibility for governance, when adopted by a democratic process, is a democratic policy.
One of the great things — arguably the only great thing — about democracy as a political system is that it can select the best policies from different political theories to benefit society and the individual in the proper, if not always equal, measure. We are free to condemn the selection of a particular policy as not correctly achieving a proper social/personal balance, but in labeling the process as manifestation of a wholesale embrace of that theory as a system of government, we expose our ignorance of the essence of democracy and the distinction between political policy and the governmental process through which the policy is adopted and enforced.
In theory, any governmental system will provide a perfect balance of social and individual liberty. In practice, none of them can. Winston Churchill said it best. Democracy is the worst form of government, except for all the others. Churchill understood that democracy is the only practical system of government with the flexibility to craft policies based on their pragmatic effect on society and the individual, and more to the point, with the flexibility to correct missteps in policymaking without resorting to violence. That process is often frustratingly slow — viz. the abolition of slavery — but it is infinitely preferable to resorting to violence to overthrow that process and impose the collective will of a minority — or even a majority — on the whole.