Updated: Nov 11, 2023
[Editor's Note: At times, these posts will strive to balance the serious with the entertaining and sometimes even droll aspects of appellate law. This is not one of those times. Even without my personal involvement in this case, I feel very strongly about the underlying issue in the one appeal published by the Court of Appeals -- the treatment of those with significant intellectual challenges within the criminal justice system. Accordingly, this post will take on a sober tone which I reserve for those cases that should be taken more seriously than most. ]
With Election Day being an official state holiday now, the courts were closed yesterday, which means that this week Court of Appeal's opinion day was today. There was one published decision and I will disclose at the outset that I was counsel for the appellant in Anthony Tremaine Stewart v. Commonwealth of Virginia. If you listen to the oral argument of the case, you will understand that the result in this case affirming the judgment is, while not unexpected, difficult to take. Explain why will require going beyond the recitation of the facts in the Court's opinion by Judge Callins joined by Judges Raphael and Lorish. The Court correctly notes that its consideration of the facts requires them to be "'stated in the light most favorable to the Commonwealth, the prevailing party at trial.' 'Therefore, we will ‘discard the evidence of the [defendant] in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" (slip op. 1-2, citations omitted). Even in doing so, however, the Court did acknowledge in its opinion the nature of the case as "tragic" as Judge Callins observed during oral argument.
Anthony Stewart was injured when he was a teenager suffering a traumatic brain injury. In addition, Anthony has been diagnosed with multiple learning and intellectual disabilities and since the accident his IQ has never been determined to be higher than 65. Additionally, Anthony suffers from long-term renal disease, requires regular dialysis, and will likely die from kidney failure long before reaching a "normal" life span, meaning that he will almost certainly die in prison as he received a 22-year active sentence.
Like so many people with limited intellectual ability, Anthony has been taken advantage of by unscrupulous people who can manipulate him into doing their bidding in illegal drug trafficking and then conveniently use him as a scapegoat when they are caught and charged. In many prior instances, Anthony was charged and then determined to be unrestorably incompetent, resulting in his release from custody and the charges being dismissed. Although recent changes in the law provide for some level of "aftercare" in such cases, during Anthony's prior legal troubles, he was simple released with no plan for community support or treatment.
It is true that on two occasions experts offered the opinion that Anthony was minimally competent. In the present case, the experts opined that he had attained competence as a result of a period of abstinence from drug use, a stable diet, stable schedule and housing (due to incarceration), consistency in treatment-adherence for his medical conditions (i.e., dialysis, medications), and recovery from an exacerbation of his [end-stage renal disease] in 2018.” This opinion, however, was made nearly concurrently with one offered a separate case in the same circuit court finding that Anthony was not competent to stand trial and dismissing the charges against him.
I have met with Anthony and reviewed his medical records. I seriously doubt that anyone who was familiar with him and his history would have any difficulty in believing that Anthony truly does not appreciate the intricacies of trial. Indeed, the experts that found Anthony to be competent conceded that they frequently had to repeat questions and coach him with explanations of the trial process during their examination -- and even then his answers were often suggestive that he really did not comprehend simple concepts. For example, Anthony was asked to explain the role of the trial judge and he responded, "He wants to put me in jail." That is not the judge's role -- nor is it the prosecutor's role, though arguably it would show some understanding of the prosecution's goal.
Nonetheless, the issue before the Court of Appeals was whether the experts' opinion was sufficient in this case to permit the circuit court to find that Anthony was competent at that time (although the finding and its subsequent challenge at trial were separated by more than a year). The Court of Appeals concludes that the finding was "was not plainly wrong or without evidence to support it."
Am I surprised at this result? No. I had advised Anthony's family from the outset that this was almost certainly going to be the result as the standard of review is well known and intractable. Am I satisfied with this result? Also no. It is possible to recognize the legal correctness of a decision and be unsatisfied with the result, and this is one case where I believe that dissatisfaction is justified. First, I do not believe that the content of the experts' opinion justifies their conclusion that Anthony was competent and I believe that the appellate court could, under the prevailing standard of review, find this to be the case. It is certainly not beyond belief that an expert's conclusion must be accept as unassailable when the evidence relied on clearly is open to interpretation and has previously resulted in a opposite view -- in fact, in a prior case one of these experts had opined that Anthony was unrestorably incompetent, but changed his mind.
The second reason I am dissatisfied is because Anthony Stewart never should have been in the position to be charged with these serious offenses. In a moral society, those who are vulnerable to abuse, neglect, and manipulation should be protected. The evidence is clear that that a large percentage -- possibly even a majority -- of long-term "criminals" presently imprisoned in this country are not well-adjusted, high functioning adults who chose to pursue a life of crime. They have intellectual disabilities, organic mental illness, and/or substance abuse addictions that often arise from efforts to self-medicate. The documented history of childhood and adolescent abuse of people who become "incorrigible" offenders is well known.
Yet unlike all other civilized, advanced societies, the US prefers to warehouse its intellectually challenged in prisons rather than provide them with appropriate care and support before circumstances lead them to become just a statistic in the criminal justice bureaucracy. As the parent of an adult child with significant intellectual challenges I know that even with proper love and care, it is difficult to assure that such persons will remain outside the reach of the police and the courts. I single incident when the individual is not watched over can lead to a misunderstanding and can result in significant harm that will draw that individual into a criminal justice system that more often than note follows a "one size fits all" approach. Even when the system does recognize the limited culpability of an intellectually challenged defendant, the result more often than not is to simply stop the process and hope that someone else will assume responsibility.
This is not how a civilized society should treat is vulnerable citizens. We can do better. We must do better. It may yet be that we can find a way to help Anthony Stewart, and we must try to help prevent the next case like Anthony's.
The Court of Appeals issues 4 published opinions in the last weeks of October. You humble correspondent was busy presenting CLEs for the VMVLA as October is also the deadline month for attorneys to get their education credits, so this post is a bit late.
Gloria Neal v. Secretary of the Department of Veterans Affairs is, despite its name, a garden variety unlawful detainer action (what most folks call an eviction) its just the the DVA is the owner of the property in question. Well, perhaps not so garden variety in that in involved a reversal of a judgment granting possession to the owner.
Neal owned a home in Haymarket, Virginia subject to a deed of trust. That deed of trust secured a loan from Wells Fargo. The loan was guaranteed by the VA, and the deed of trust contained a “rider” requiring, per Neal’s answer, “compliance will [sic] all VA regulations in effect at the time of the execution of the deed of trust.” In 2016, Neal obtained what she understood to be a loan modification. What she understood being the key language here
At some unspecified point after this modification, Neal fell into default and the substitute trustee on the deed of trust initiated a non-judicial foreclosure sale in July 2019 at which the VA was the highest bidder. The VA subsequently obtained a foreclosure deed that was duly recorded. The VA sent Neal a notice to quit and vacate, and upon her refusal to do so filed an unlawful detainer action in the Prince William County Circuit Court.
Neal answered the unlawful detainer complaint and admitted that she was in default. However, Neal asserted an affirmative averment that when she obtained her modification, she was told by a representative of the VA she no longer had a “VA loan” that required compliance with all of the VA regulations. Neal asserted that this statement was a material misrepresentation and that had she known that the VA representative was incorrect in his assertion that she no longer had a VA loan, she would have availed herself of certain protections contained in the VA regulations and guaranteed to her in her deed of trust.
The VA moved for summary judgment and the circuit court granted the motion. The Court of Appeals, Judge Humprheys joined by Judge Ortiz and Sr. Judge Annunziata, reverse, finding that the allegation of the affirmative defense, which must be taken as true for purposes of summary judgment, are sufficient to create a disputed issue of fact. The case is remanded for further proceedings.
Tanya Rashae Holland v. Commonwealth of Virginia involves the issue of whether a defendant should be allowed to withdraw a plea of no contest where her former attorney has been suspended by the state bar and her new counsel provides information about the nature of the offense and a possible defense that the prior attorney did not advise her. The opinion of the Court, Judge Lorish, joined by Judges Raphael and Callins, is 23-pages long, but for me this was a no-brainer because the first sentence reads, "Consistently maintaining that she gave her child the wrong medication by accident, Tanya Holland entered a no contest plea to felony child neglect resulting in serious injury."
Felony child neglect requires a willful act. If Holland consistently maintained that she had not acted willfully, in my view the circuit court should not have accepted her plea, even as a no contest. At the very least, the court should have made d*** sure that she understood that a no contest plea meant that the she was conceding the Commonwealth had evidence that was sufficient to prove she acted willfully.
Because the motion to withdraw the plea was made prior to sentencing, Holland was only required to show that she had a reasonable defense to the charge and was not interposing the motion to withdraw merely to delay the proceedings. The Court of Appeals reserves and remands.
Marco Antonio Martinez Ayala v. Commonwealth of Virginia involves a motion to suppress post-arrest statements by the defendant. Ayala, a native Spanish speaker, said that he spoke English "pretty good" and that while the charges had been explained to him earlier, he "did not understand a lot" of what he had been told. Before reading the Miranda warning in English and providing Ayala with a written Spanish translation, the officer advised Ayala that the charges were "serious" and involved the rape and sexual assault of a minor. Ayala then signed the Spanish language version of the form.
The officer did not verify that Ayala understood the nature of the offenses better than he had previously, but when told of the statements of the victim, Alaya replied "That's what she's saying? Wow!" Alaya denied any improper contact with the victim and said that he wanted an attorney. At this, the interview ended.
Now, you may be wondering, as I was at this point, what exactly Alaya want to suppress. Well, apparently he wanted his denials to be suppressed because in Henrico County, where this case comes from, the prosecution plays interviews where a defendant denies allegations against him and then argues to the jury that he was sincere is his denials. This is, of course, not exactly improper -- but in my view it creates a dam**d if you do, dam**d if you don't prospect for suspects that defeats the purpose of the 5th Amendment.
The Court of Appeals, Chief Judge Decker joined by Judges Athey and White, doesn't see it that way, however, and agrees with the circuit court that Alaya was adequately advised of (and exercised) his rights. So file this one under the "Keep you d*** mouth shut except for the words "I want a lawyer."
Debra K. Clutteur v. Nancy C. Rosier involves the dismissal of a nonsuited and recommenced personal injury action on a plea-in-bar of the statute of limitations where the defendant was deceased and plaintiff moved to substitute her estate as the defendant. Now, you would be forgiven in thinking that the nonsuit was taken because the defendant had died and the recommenced action was mistakenly brought against her rather than the estate.
But no, Rosier had been dead all along. Indeed, she had died nearly a year before the original suit was filed . . . in 2017. It seems the first action was filed and remained in her name until after the time time for substituting the personal representative (or filing a separate action against the estate) had passed. The non-suit was an effort to get around that bar, and the circuit court found that it was not a proper one. The Court of Appeals, Judge Chaney, joined by Judges Humphreys and O'Brien, agree.
The Court of Appeals issues two published opinions today, and one of them represents a fairly rare occurrence -- a pro se appellant obtaining a reversal and what's more unusal, it's in a legal malpractice case arising from a criminal conviction. The other case results in a 37-page opinion affirming a criminal conviction.
Mark O'Hara Wright v. Andrew C. Graves, Esq. starts back in 2012 when Wright retained Graves to represent him in a criminal trial on multiple charges including a grand larceny conviction. Wright was sentenced to 11 1/2 years imprisonment. In June 2021, just three months before his scheduled release, Wright was gratned a writ of habeas corpus in the 4th Circuit Court of Appeals, which found that the Supreme Court of Virginia had overlooked a clear error of law in dismissing his state habeas petition. Wright v. Clarke, 860 F. App’x
271 (4th Cir. 2021). The clear error of law was that Graves failed to object when, during trial it became clear that the Commonwealth was not able to prove the original charge of robbery as a principal in the second degree, the charge with which he had been indicted, and instead asked that the jury be instructed on grand larceny from the person. Wright did not object to the instruction, agreeing with the Commonwealth that this was a lesser included offense of robbery -- except, of course, it isn't, because grand larceny from the person requires proof of the value of the property taken, which is not an element of robbery.
Rut ro, indeed. It's pretty embarrassing that it took 10+ years to fix this. Its even more shocking considering that what Wright and his accomplices stole was a couple of pre-made sandwiches and two cases of beer.
Wright brought suit against Graves for malpractice. The case was swiftly dealt with in the circuit court, which sustained a demurrer alleging that Wright had not successfully plead that he was actually innocent of the crime. The Court of Appeals, Judge Raphael joined by Judge Callins with Judge Lorish concurring, reserved and remand for further proceedings.
The first thing to remember about a demurrer and an appeal from the sustaining of one is that unlike most appeals, the standard of review is flipped on its head with the evidence being view in the light most favorable to the party opposing the demurrer. Moreover, the "facts" are limited to what is found within the four corners of the complaint and those that can be fairly inferred from them. Here, the circuit court failed to apply that latter principle, apparently finding that the failure to actual plead "I didn't do it!" was the end of the inquiry as to whether Wright was asserting his actual innocence.
But, as the majority opinion points out, Wright did plead the facts on which the 4th Circuit based its ruling that he could not have been convicted of the crime because it was not properly charged and, at the very least, that he had not been convicted of the offense. Whether Wright can prove that at trial is another matter, but his pleading is sufficient to survive the demurrer.
Judge Lorish writes separate to address "a question Wright raises that we are not deciding today," which is whether his case falls into the narrow category of these were actual innocence is not a necessary element of legal malpractice in a criminal case. She suggests that there are cases where even lack of actual innocence ought not to bar a criminal defendant from obtaining relief in malpractice where the conviction results from an uncharged offense.
Thomas Edward Clark v. Commonwealth of Virginia is the longer of today's two opinions and results in the affirmance of Clark's convictions for first-degree murder, rape, and abduction with intent to defile. In addition to challenging the sufficiency of the evidence, Clark alleges that the Commonwealth was improperly permitted to admit evidence that was not timely disclosed, that the court improperly allowed mid-trial amendments of the indictments to conform to the evidence, and that the verdict should have been set aside for juror misconduct -- specifically the fact that one juror did not reside within the venue of the trial and failed to disclose this during voir dire.
I will not go into the graphic details of the crime. Suffice to say that the nature of the offenses charged was well justified by the circumstances of the crimes. Clark was swiftly identified as a suspect and forensic evidence including DNA established his culpability within a degree sufficient to indict and ultimately convict him.
I will interject here a comment on the qualified language of the preceding sentence. It is common for journalist and even courts to use hedging language when describing the guilt of a criminal defendant. This is because we recognize that trial's never establish the positive factual guilt of a defendant -- only the legal guilt. The possibility of a wrongful conviction is never fully eliminated because there might be legal error in any case and factual error in many, though not all, cases. This often leads the public to believe that there is some doubt as to the defendant's guilt, and in many if not most cases that is true -- because the "reasonable doubt" standard does not require the elimination of all doubt.
The evidence that Clark objected to and the subsequent amendments related to whether the offense occurred "on or about May 9, 2019" or "between May 8, 2019 and May 9, 2019". Clark argued that he had prepared an alibi defense for May 9, but not for May 8. The Court of Appeals, Sr. Judge Petty joined by Judges Raphael and White, found that assuming it was error to admit the testimony that related to cellphone data from the victim's phone on May 8 and 9, was harmless because this evidence was not "the linchpin" of the Commonwealth's case. Similar the indictment amendment did not change the nature of the charge because the date of the offense is not an element of the crime. Even presuming that Clark premised his alibi defense on his inability to have committed the crimes from midnight to midnight on May 9, this would not have precluded the jury from finding that Clark committed the crime on the day before or after. "On or about" is an estimate, not a limiting statement.
Finally, it was not disputed that one juror deliberately kept from the court his residence in another jurisdiction. Several of Clark's arguments on this issue were procedurally barred and the remainder fail because he could not show that the juror misconduct adversely impacted his trial resulting in his conviction.