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

One Published Opinion Following Election Day Holiday

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.

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