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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

A Pro Se Litigant Wins, a Represented Litigant Loses

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.

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