Readers of the Blawg of the Sage of Virginia Beach are familiar with the David-Goliath Index in which Steve Emmert reports of the win-loss record of the “little guy” (typically a criminal defendant or solo plaintiff in a contact or tort case) against the “big guy” (the Commonwealth or the well-heeled corporation or insurance company). That may be something of an oversimplification of how the index is calculated, but it’s the general idea.
Never wanting to appear unoriginal, but recognizing a good thing when I see it, the Virginia Appellate Attorney’s Court of Appeals of Virginia Blawg is proud to announce the Icarus Index. The Icarus Index is, of course, a reference to the myth of Daedalus and Icarus. In the most popular version of the tale, Daedalus, the craftsman who built the Labyrinth for King Minos, is later imprisoned there with his son Icarus as punishment for assisting Theseus in escaping the maze after defeating the Minotaur. To escape, Daedalus crafts two pairs of wings from feathers and wax. After testing the wings himself, he gives the second pair to Icarus, admonishing him to follow the same flight path that Daedalus takes.
Most people know how the story ends. Icarus, thrilled by the power of flight, disobeys his father and flies high into the sky, thinking to challenge Apollo, the Sun God. Apollo punishes Icarus by melting the wax, causing the feathers to fall from the wings. Icarus then plunges to the sea and drowns.
However, there is slightly more to the story. In his test flight, Daedalus realized that flying too high was dangerous because of the sun’s heat, but he also found that flying too close to the sea was dangerous as well because the moisture of the fog and spray would weigh the wings down, with the same result. The myth is not so much about the hubris of excessive ambition, as it usually portrayed, as it is about following the mean path between the indolence of a lack of ambition and the hubris of overextending your reach.
Hence, I have conceived of the Icarus Index in which the goal is to portray the result of the appeals of right in the Court of Appeals in finalized case as either on or departing one way or another from the mean, with a slight modification in which I assume that Icarus actually succeeds in challenging Apollo. I decided not to include original jurisdiction cases and pre-trial/interlocutory appeals (including bond appeals and injunctions) because it’s a bit more difficult to classify what the median path for those cases might be. I will also not be including cases that are disposed of by unpublished orders because these cases are often dismissed for procedural reasons having nothing to do with the merits.
What the Icarus Index will cover are those case decided by opinions – both published and unpublished – and published orders from cases filed on or after January 1, 2022 (technically, the Court was closed on New Year’s Day, but the e-filing system was accepting submissions). The scale will be from 1-5, with the idea being that a “3” – the mean – is an “as expected result” for the appeal, which is of course an affirmance on the merits. Some may argue that this is unfair, because it implies that most appeals lack merit – but that is not the case. Rather, it is a recognition that the appellant always has the disadvantage of having to overcome a presumptively correct judgment, almost always with an unfavorable (from the appellant’s perspective) view of the evidence. Moreover, from a “orderly administration of justice” standpoint, we really should see reversals in a lot of cases — because that would mean the trial courts were not doing their job correctly with regularity.
A “5” will be the best of all possible results for the appellant – a victory over the sun if you will. In a “5,” the appellant will have achieved the illusive “reversed and final judgment.” A “4” will be for those cases where the appellant lives to fight another day with a reversed and remanded. Below the mean will be the “2” cases, which will be those in which the appellant wins a pyrrhic victory, which might anything from a “right result, wrong reason” affirmance to a reversal that is merely procedural but really doesn’t give the appellant true solace because, well, it means a new trial with practically the same evidence. Finally, a “1” is the worst possible outcome for the appellant – the equivalent of falling into the sea through lack of ambition – where an appeal is, for example, dismissed because of a procedural error that warrants a tongue-lashing from the Court or an affirmance in which the Court makes plain that the counsel’s lack of diligence sunk the appeal before it left the dock, such as a failure to assign error to an alternative basis for the judgment. A “.5” will be added or deducted from any opinion that has a dissent.
The expected Icarus index would be “3,” so the higher the index climes, the better the appellants are doing, and conversely, the lower it falls, the better for the appellees. It will take some time for the number of opinions and published orders to show any clear trends. At the moment, there are only three decisions that fall within the criteria for the Icarus Index, and it stands at 2.33. As more cases are decided, I will separate the Index into categories of case type as well as an overall.
I am proud to say that in addition to being a “procedural geek,” I am also a “data geek.” I am fascinated by looking at statistics about anything – discovering hidden (and usually meaningless) patterns and trends. So when you combine appellate procedure and statistics, well, I am just happier than a pig in new slop.
I have just finished compiling the raw data for the filings in the Court of Appeals for the first half of the year, and I am now manipulating the data to see what pops out. I will likely continue to do this over the rest of the holiday weekend (Happy Fourth of July, BTW) and well into the rest of the month as time permits, but for now let me give you the broad picture.
First, a few caveats. This data is collected from the public version of the Court of Appeals Case Management System available through the Court System Website. As we all know (or are presumed to know), the ACMS is not warranted to be accurate, though I find that it is generally well-maintained. On the other hand. I cannot speak with the same confidence about how well maintained your humble correspondent is, and indeed I have found a few “operator errors” as I review my data entry.
Another important caveat is that “things change” from time to time – for example, there was a case that was initially classified as “Criminal Contempt” back when I first commented on the January filing, but on closer examination it turned out to be a “Civil Contempt,” and I caught this change when I was updating the data. The Court Clerk’s Office does its best to keep the record straight, but often they are given confused and sometimes conflicting information from the parties, the circuit court clerk, and the attorneys. Similarly, a case may be filed pro se but then the party hires an attorney, or begins as a represented case but then the party fires his counsel. So if these numbers change a little between now and the next reckoning, don’t be surprised.
Finally, sometimes in classifying some aspect of a case, I had to make a judgment call. For example, what is the status of case where the appellant files the designation of assignments of error (or even the opening brief) before the circuit court forwards the record to the Court of Appeals. You see, that really shouldn’t happen because it’s the receipt of the record that triggers the timing of the designation. In that particular case, I decided that such cases would be designated as “awaiting record” because the Court of Appeals certainly won’t advance the case until it has the trial court record in hand.
Let’s Start with the basics – what types of cases – Appeals and Original Jurisdiction – are being filed?
Monthly Filings By Case Type2022FilingsCRIMWCDRCIVADMINBONDCTMPT-CRCTMPT-CVCWGRIVHABEASINJINTERLMANDSVPWAINONEJAN14557724301201410300258FEB17098518281401110100264MAR175891218362100301302044Q1490244246094470282170241516APR15177615382200101120042MAY15589310472200000000020JUN1639076426201201100140Q24692561631127106013022201102Total9595004091221141303112392252518
CRIM = Criminal Appeal; WC = Virginia Workers’ Compensation Commission Appeal; DR = Domestic Relations Appeal; CIV = Civil Appeal; BOND = Appeal of Denial or Granting of Bond; CTMPT-CR = Criminal Contempt Appeal; CTMPT-CV = Civil Contempt Appeal; CW = Commonwealth’s Pre-Trial Appeal (by petition); GRIV = Appeal of Civil Service Grievance; Habeas = Petition for Writ of Habeas Corpus (OJ); INJ = Injunction; INTERL = Interlocutory Appeal (certified); MAND = Petition for a writ of Mandamus (OJ); SVP = Appeal of Sexually Violent Predator Commitment Proceeding; WAI = Petition for Writ of Actual Innocence Based on Non-biological Evidence; None = Case over which the Court does not have jurisdiction
As you can see, the Court has received 959 filings to which record numbers have been assigned (not all filings are giving record numbers, but those that are not are generally dealt with swiftly and quietly by unpublished orders), and of these, just over half (52%) are in Criminal Appeals. Civil Appeals are the next largest category and are less than half that (23%). Cases from the “old” appellate jurisdiction of the Court make up about 17%, while Original Jurisdiction and miscellaneous cases make up the remaining 8%.
While some predicted a flood of civil appeals of right, and a deluge of criminal appeals of right, neither prediction appears to have been prescient. In fact, I would suggest that with an average of 37 civil appeals per month, the enthusiasm for appeals of right in that realm is decided lukewarm at best.
One factor I did find surprising was the fairly small number of appeals from denial or granting of bond. Given the new lenient standard, I expect to see a somewhat more robust series of appeals at least initially. Perhaps this suggest that the circuit courts are taking the new standard seriously and making judicious (and on the record) decisions.
Pro Se? You Don’t Say!
Another surprising detail that emerged from the data was how many pro se appellants there were. Let me concede that while I have dealt with quite a few pro se parties in my career, I have no real concept of how common pro se appeals where. In the first half of 2022, the Court of Appeals received 201 appeals from pro se appellants. That’s just shy of 21%, more than one in five appeals. By contrast, there were only 23 pro se appellees, and just 7 of those were in appeals where the appellant had counsel.
I should note that I have excluded from the calculation of pro se parties those cases where attorneys are acting as their own counsel. I classify these, of which there were 4 including one in which both the appellant and appellee were pro se attorneys, in an entirely different category – Fools. While the quotation, or variations thereof, that “any many who acts as his own lawyer has a fool for a client” is attributed to many, including Abraham Lincoln, Benjamin Franklin, and Oliver Wendall Holmes, its earliest known appearance in print is in the 1682 book “Humane Prudence, or, The Art by which a Man May Raise Himself and Fortune to Grandeur” by William de Britaine:
Before you act, it’s Prudence soberly to consider; for after Action you cannot recede without dishonour: Take the Advice of some Prudent Friend; for he who will be his own Counsellour, shall be sure to have a Fool for his Client.
It is debated whether de Britaine was speaking specifically of legal counsel, and the sentiment certainly could be applied to many professions and situations.
Status of Cases
Another somewhat surprising revelation from the data is both how quickly and, conversely how slowly, the Court is resolving cases. To explain that apparent contradiction, let me state that I am not faulting the Court for not resolving more cases on their merits. The appellate process is, at the best of times, plodding given that it depends on the actions of many disparate parts, so it is not unusual for an appeal that is filed in January is still not ready for a decision in June, let alone actually considered by the Court with an opinion forthcoming.
What I meant by cases being slowly decided refers to the disposition of cases that are procedurally barred from reaching a merit review. In looking at ACMS, I noted that there were more than a few cases that appear to be well overdue for dismissal, but appear idle on the docket. There are, of course, perfectly reasonable explanations for why they might be still active; the most obvious being that they are idle because the appellant has sought and ben given one or more extensions of time to file. Still, a case that has been waiting for a designation of assignments of error and an opening brief for more than three months seems likely never to advance.
On the other hand, it was quite impressed to see how many cases the Court had cleared from the 2022 docket. The court has resolved, in some fashion of another, 168 cases, 17.5% of the cases filed this year. Now you might not have realized that the Court had disposed of so many cases. There is good cause for not knowing, however, as only 1 of these cases was disposed on by a published decision – and that was the published order in NAACP (Hanover Chapter), et al. v. Commonwealth of Virginia, et al., decided back in April and dismissing the case seeking an injunction.
Six other cases have been addressed in unpublished opinions, while the remaining 161 were dealt with by unpublished order. I will eventually get around to break these dispositions out by case type and result, but for now here is the “big picture”: All of the unpublished opinions where affirmances; five cases that proceed by petition had the petitions denied, 97 cases were dismissed by unpublished order, while just two, both in injunction cases, were reversed and remanded. Fifteen petitions for writs of actual innocence were summarily dismissed, a disposition used only for that type of original jurisdiction case. Eleven cases were transferred to the Supreme Court of Virginia. Thirty-one appeals were withdrawn.
Ready, Steady, Go!
The final tidbit before I sign off is to report that 164 of the appeals filed in 2022 are fully briefed and ready for the Court to receive (or dispense with) argument – indeed a few have already been heard by a panel. Some of these might yet be subject to procedural dismissal because of issues not detected until the record has been given a thorough review – it’s actually surprising how frequently this happens given the multiple checks that a case goes through before reaching a panel for decisions.
An event of some note occurred on July 28, 2022, but it received little fanfare. Indeed, I am somewhat chagrined that I was not more vigilant in reporting the event as it was something that I have been anxiously awaiting. What was the momentous event? Nothing less than the first opinion issued in an appeal of right filed in 2022 where the Court of Appeals exercised the authority of Code § 17.1-403(ii)(b) and Rule 5A:27(b) to dispense with oral argument “because ‘the dispositive’ issues in this appeal have been ‘authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.'”
OK. So maybe I gave that revelation a bit more of a build-up than it deserved. However, at least for those practicing in the appellate courts, and especially those that practice criminal appellate law, you can be sure that James Davis v. Commonwealth of Virginia is going to be a must read opinion. Why? Because its the first real hint of how strictly or liberally the Court is going to use its power to dispense with oral argument in criminal appeals of right. Admittedly, the Court has already dispensed with oral argument in a few other cases under the new rule, but these were either Domestic Relations cases filed in 2021 that could have been summarily affirmed under the old practice or were pending 2021 criminal cases that were “bumped up” to appeals of right at the start of the year and likely would not have been granted appeals had the petitions been review for merit.
Let us take a look at the case in a little detail.
First, the opinion was issued per curiam with the panel give as Judges O’Brien, Lorish and Senior Judge Annunziata. Now, it so happens that another unpublished opinion issued on Tuesday had the same panel and that case, Jenkins v. Commonwealth, is one in which oral argument had been waived by the parties. This was a pre-2022 case and a little investigation confirmed that it was among the pending cases that were automatically granted when the new appellate regime went into effect on January 1.
Unfortunately, knowing this does not tell us how Davis came to be reviewed by this panel. It may be that the case was pre-screened for dispensing with oral argument and then assigned to a “no oral” panel. This seems likely, but it does not tell us how that case got to be “pre-screened.” The opinion states that “the panel unanimously holds that oral argument is unnecessary,” which suggests that the case could have been referred for oral argument had the panel not agreed — but again it does not tell us how the panel was called upon to make that decision.
In the past, summary affirmances were generally issued per curiam, so we can probably presume that cases for which oral argument is dispensed with will likewise be “unsigned.” In the past it was not unusual, though infrequent, to have a signed dissent to a summary affirmance. I think it unlikely that this will happen in 5A:27(b) cases because I can’t see a judge agreeing that oral argument is not necessary, but then wanting to reverse. However, this would not preclude a judge from concurring separately, though again I think it unlikely.
As an aside, I have recently been advised by someone in the know about such things, that the Court of Appeals has chastised a few attorneys for not being precised in their certificates with respect to whether they are merely “requesting” oral argument as opposed to “not waiving oral argument.” It is not clear to me how a request for oral argument is not an indication that one is not waiving, but apparently the Court may view it differently. This suggests that briefs that are not firm in asserting “non-waiver” of oral argument may be the ones getting pre-screened. But that is mere surmise.
Any who, back to the opinion. Now, frankly, I am not sure that I wouldn’t have let this one go to argument if I’d been making the call because I don’t see this as a “been there, done that, got that t-shirt” kind of case. To begin, Mr. Davis is a very bad man and this is not his first rodeo. This go round, he was convicted of attempted murder, malicious wounding, use of a firearm in commission of a felony, abduction, attempted strangulation, misdemeanor brandishing a firearm, and misdemeanor assault and battery. Previously, Davis had been convicted of manslaughter.
Now some of you familiar with the law of evidence are probably wondering, “Hmmm . . . why would the Court of Appeals make mention of a prior conviction? Surely the circuit court did not permit the Commonwealth to introduce that into evidence?” Well, that’s exactly what happened, though not at a trial, which would likely have been found to be very wrong. Rather, Davis entered Alford Pleas to all the aforesaid crimes, but objected to the introduction of his manslaughter conviction and a Court of Appeals opinion as well as testimony from a victim of another offense from way back in 1980.
Now I won’t go into any detail of the current offenses. Let’s just say that Davis got into a lover’s tiff with his (presumably now ex-)fiance. A tiff in which he asserted that “You belong to me. If I can’t have you, no one will. I won’t live without you, and we can die together” and “I’m going to kill you and we are both going to die and go to hell.” Davis the proceeded to demonstrate that he was willing to carry out at least the first part of that threat, but thankfully failed. We will never know if he would have gone ahead with the planned suicide or not.
Now we get to the crux of the appeal. During the sentencing hearing, the Commonwealth put on extensive evidence of Davis’ prior criminal history, including the testimony of the 1980 victim and the Court of Appeals’ opinion. These latter two elements of the evidence were introduced to rebut Davis evidence which, as best as can be determined from the opinion, was intended to show that due psychological factors he was not responsible for his criminal actions as they occurred during dissociative episodes that were the result of his long periods of prior incarceration.
You see, it seems that Davis was arguing, in effect, “Prison made me worse, so don’t send me back” and the Commonwealth wanted to rebut that by saying “No, you’ve been a bad guy all along.” The circuit court was actually quite generous in conceding that Davis had an extraordinarily tragic and traumatic life history, but declined to find that this sufficiently mitigated the severity of the current offenses. The Court imposed an active sentence of 40 years which, given that Davis was in high school just prior to his adult criminal offense in 1979, suggests that he will be in prison until he reaches 100 or so. This is a fairly significant upward departure from the sentencing guidelines, but in truth the judge’s reasons for doing so, in writing, indicate that she really thought Davis was not remorseful and, as I said, a really bad man.
On appeal, Davis challenged the admission of the Court of Appeals opinion, both as improper hearsay and not proper rebuttal evidence. Now, this is the issue on which I would have thought the Court would have wanted to hear oral argument because there is absolutely no law regarding the use of judicial opinions in this manner. However, the Court simply puts it down to the lenient rules of evidence and the court’s discretion. So now there is an unpublished, per curiam opinion that addresses this issue.
Jones also argued that the court did not properly weight the mitigating evidence in departing from the sentencing guidelines. As you can guess, this gets no better treatment by the court because the judge set forth her reasons for the upward departure, and the sentence was in her discretion.