July 2010

Here’s a story that’s been bothering me recently: As our buddies at Virginia Lawyers Weekly reported, the Supreme Court of Virginia has issued a show cause order to a Winchester attorney, directing him to explain a comment that he made on the record.

The lawyer, William Crane, represented a sexually violent predator in a case involving two appeals. Finding himself back in front of the trial court, he tried to explain the Supreme Court’s treatment of an appellate issue.

This exchange ensued:

MR CRANE: The Court refused to consider the Fifth Amendment issue. They said there was enough besides that to go ahead an approve the findings.

THE COURT: They didn’t want to touch it?

MR. CRANE: Well, they just stuffed it. They didn’t have the guts to handle it.

As luck would have it, the transcript wound up in the record for a subsequent appeal. The Supreme Court evidently read the transcript and was not amused. Citing the Rules of Professional Conduct, it directed Crane to appear on September 16 to explain whether his comment demonstrates “a patent disregard for the Justices of this Court.”

Yikes.

Virginia Lawyer’s Weekly reports that this appears to be the third show cause order issued since 1987 for a lawyer’s behavior toward the Court. The first involved a lawyer who approached a sitting justice at a social function and told him, “I’m still pissed off at you, you a-hole.”

The second was the Taboada v. Daly Seven, 272 Va. 211, 636 S.E.2d 889 (2006) debacle, where a lawyer signed and filed a petition for rehearing, which employed “intemperate language” to “ridicule and deride the Court” and “express displeasure” with its opinion.

That’s putting in diplomatically. Here’s an excerpt from Taboada:

[The lawyer] made numerous assertions in the petition for rehearing regarding this Court’s opinion. [He] described this Court’s opinion as “irrational and discriminatory” and “irrational at its core.” He wrote that the Court’s opinion makes “an incredible assertion” and “mischaracterizes its prior case law.” [The lawyer] stated: “George Orwell’s fertile imagination could not supply a clearer distortion of the plain meaning of language to reach such an absurd result.” [He] argued in the petition that this Court’s opinion “demonstrates so graphically the absence of logic and common sense.” … [The lawyer] also included the following statement in the petition: “[I]f you attack the King, kill the King; otherwise, the King will kill you.”

Continue Reading Supreme Court of Virginia Issues Show Cause Order

Back in February, the Supreme Court of Virginia handed down Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010). That decision merits extended discussion. It not only offers the best treatment of preservation of error that we’ve ever seen, but it clarifies Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), thereby dispelling one of the great urban legends of the law.

The facts the case are, shall we say, unseemly. It arose out of a criminal prosecution for various offenses stemming from the defendant’s conduct in a Yahoo chat room with a police officer posing as a minor.

And it all went downhill from there.

During trial, there was a suggestion that defense counsel may have altered a set of Yahoo chat room rules, which they tried to put into evidence. The case was pending before Judge West. Defense counsel was clever enough to use the Yahoo user name “westisanazi” on one version of rules, but apparently not quite clever enough to do a plausible job of altering another version of the document.

A summary contempt proceeding ensued. Defense counsel (now defendants) objected and moved to stay the proceeding on the ground that it violated their due process rights. The trial court overruled the motion and held them in contempt.

Defense counsel appealed to the intermediate Court of Appeals, again arguing that that the trial court had violated their due process rights. The Court of Appeals held that they had failed to preserve that argument for appeal, because they’d failed to specify the relief they sought and asked only for a stay.

On appeal, the Supreme Court reversed. Writing for the Court, Justice Kinser gave a detailed explanation of the contemporaneous objection rule.Continue Reading Scialdone v. Commonwealth–Best Preservation of Error Opinion Ever?

The Supreme Court of Virginia heard writ arguments this week, with 2  panels sitting outside of Richmond. One was in Roanoke County, where I was lucky enough to have a few arguments. That gave some of my friends and colleagues a chance to see what I do for a living. That was fun. More fun: …