The Court of Appeals gives us two published opinions today, both in criminal cases and with predictable results, though the latter may be subject to further review.
Adrian Donnel Aley v. Commonwealth of Virginia is a challenge to the sufficiency of the evidence for felony hit-and-run involving personal injury and felony eluding. Aley did not challenge convictions for reckless driving by speed and endangerment. The facts certainly support these latter two convictions as Aley was observed going well above the 50 MPH limit on a dark, winding, country road in Stafford County. Sherriff’s Deputies initiated a high-speed chase before losing sight of the vehicle.
Aley’s girlfriend, at least at the time, was a passenger in the vehicle and testified that he told her driving at a high rate of speed was an “adrenaline rush.” He very courteously adjusted her seat belt and reclined her seat to “relax” her and then proceeded to demonstrate his point. When he nearly rear-ended another vehicle she became “apprehensive” (that’s judicial understatement for “scared out of her wits”).
Eventually, Aley flipped the vehicle while attempting to break. The couple fled to the woods to avoid detection. Although his girlfriend told him she had been injured in the crash and “needed to go to the hospital,” Aley insisted they had to “run from the cops.” They eventually made there where to Aley’s home where his brother administered first aid.
The crashed vehicle was not discovered until daylight. There was blood inside the vehicle. It was “obvious” to the experienced investigator that there had been two passengers and that one or both were injured.
Tracing the car to Aley’s home, which he shared with his parents, Aley’s father denied to the investigator that the occupants of the vehicle were present. Later, Aley, overheard by the girlfriend, told his father that “his friend” was driving the car when the accident occurred. Chivalry for Aley is apparently limited to helping the damsel relax before almost killing her.
Eventually, the girlfriend fessed up to law enforcement. Fortunately, her injuries, though significant were to soft tissue. Aley was charged with the four crimes of which he was ultimately convicted.
At trial and on appeal, he argued that the deputies’ cruiser had never been sufficiently close to his vehicle for it to be proven beyond a reasonable doubt that he was aware that they were attempting to conduct a traffic stop. The circuit court rejected this argument at the motion to strike. After conviction by the jury, Aley moved to set aside the hit and run, arguing that Aley argued that the Commonwealth failed to prove that he knew or should have known of the passenger’s injuries because she never “communicated her injuries” to him and they were “not visible” the day of the incident. The circuit court overruled the motion to set aside.
The Court of Appeals deals with the second issue first, not that the requirement of the hit and run with injury statute does not require the driver to be aware of the precise nature of the injury, but to render aid to anyone who may be injured. Here, the evidence clearly showed that the girlfriend communicated that she wished to go to the hospital and Aley declined to assist her to do so. This was sufficient for the jury to find that Aley had not rendered aid.
With respect to the evidence supporting proof that Aley was aware that the deputies were attempting to get him to stop, well, let’s just say that while there was considerable circumstantial evidence that Aley should have seen the flashing lights, the real clencher here is the girlfriend’s (I think we can assume ex-girlfriend’s testimony, if she has any common sense) testimony of a statement Aley made most decidedly against his interest has he accelerated away from the cruiser: “Oh s*** . . . there is cops, I have got to run.”
Jessie Lee Green v. Commonwealth of Virginia, today’s other published opinion, is from a “’splain why” docket. A “’splain why” docket for those not familiar with the term refers to the day set aside by the court the here revocations of parole or probation where the judge would like the defendants to ‘splain why they shouldn’t be sent back to jail or prison.
In Mr. Green’s case, the issue was whether the court would send him to jail on a suspended A&B on a law enforcement officer and petit larceny, serving six months of a two year total sentence. Green subsequently committed another larceny and in addition to serving time for that offense was revoked on the prior probation.
Upon his next release, Green turned away from crimes against the person and property and instead succumbed to the siren call of illicit drugs. Once again asked to ‘splain why, Green obtained a continuance and during that time, new laws regard the ability of the trial courts to impose time following release became effective. The Commonwealth, anticipating that Green would like assert that these laws now applied to his case, presented the court with two sets of guidelines – one applying the law in effect at the time of the violation and another for the date of the hearing. The court ruled that the changes to the law were procedural, not substantive, and thus were not applicable to a case continued from before the effective date of the new law.
The Court of Appeals affirms, and that is to be expected given that, as the main opinion points out, retroactive application of laws is not favored in Virginia. But as there is a “main opinion” there must be a separate opinion, and indeed there is. Judge Chaney dissents. In her view, the change to the saw was substantive in that it limited the authority of the trial court to impose sentences in revocations beyond the original term that might have been imposed for “technical” violations.
I suspect that this will not be the last word on this issue and that construction and determination of application of the new law regarding revocation is ultimately destined for the Supreme Court. If I were to hazard a guess, I think that the majority view here is more likely to find a receptive audience in the higher court, but it is difficult to say this with any certainty while two seats remain unfilled for the active seven member court.
The Court of Appeals entered a new era on January 1, 2022 as it became the primary appellate court for the Commonwealth and began accepting appeals of right in virtually all cases proceeding from the circuit courts of the Commonwealth. As part of my effort to waste my semi-retirement, I have begun gathering statistics on the filings made since this momentous change . . . and so far it doesn’t seem that momentous.
I have only gathered the most rudimentary information on the filings through January 31, but if the first month of 2022 is a herald of what is to come, the rush of appeals that had been predicted in some quarters is looking more like a stroll. Here is what we know so far:
The last filing in the Court to be assigned a docket number in January was number 150; note that this does not translate to 150 appeals or even 150 filings — not every filing in the Court is assigned a docket number and not every docket number gets permanently assigned; thus, there are actually on 145 records with January filing dates and a docket number.
57 of these records are for Criminal Appeals of Right.
30 of these records are for Civil (non-Domestic Relations) Appeals of Right.
24 of these records are for Domestic Relations Appeals.
8 of these records are for cases over which the Court lacks jurisdiction
7 of these records are for Workers’ Compensation Appeals.
5 of these records are for Petitions for a Writ of Actual Innocence.
4 of these records are for Commonwealth’s Appeals of Pre-trial Actions.
3 of these record are for Review of Injunctions Granted or Denied in the Circuit Court.
2 of these records are for Sexually Violent Predator Reviews.
2 of these records are from Appeals of Denials of Bonds.
1 record is from an Employment Grievance Proceedings.
1 record is from an Administrative Appeal.
1 record is from a finding of Criminal Contempt
While it may not be fair to extrapolate from just one month’s numbers, 145 docketed cases multiplied by 12 is 1740 cases. In 2021, the Court’s last case was assigned docket number was 1423, while the Supreme Court’s was 1241 (and this included a great many appeals from the “old” Court of Appeals docket). As of today, the Supreme Court has assigned docket number 339 — an average of only 67 or so cases a month, and the Court of Appeals is at 875 — and average of 175, so a slight pick-up from January.
Dispositions have already been entered in 46 of the cases assigned docket numbers in January 2022:
27 were Dismissed.
10 were Withdrawn.
5 were Transferred to the Supreme Court
2 were Affirmed.
1 was Denied.
1 was Reversed and Remanded.
This leaves 99 pending cases, of which just 25 are civil cases. Note that the dismissal rate is 18%, slightly lower than the typically cited “20 to 25%” dismissal rate for appeals. This may be in part due to attorneys (and pro se litigants) paying closer attention to the rules given that they are aware that the rules have changed. It is also possible that more of these cases will be dismissed as they proceed through the multiple levels of checks and reviews.
As time permits, I shall continue to compile and report on the Court’s docket.
Time for another patented rant.
When talking to your clients, you always need to be careful with the words you choose, of course. But this rant is about a particular phrase that I think attorneys use too often when speaking to clients which leads to much confusion because as attorneys we understand the phrase differently from the clients. That phrase is “the justice system.”
When an attorney says, “We have to work within the justice system,” he or she is referring to the agglomerated government bodies, private attorneys, and NGOs that interact within the trial court, appellate courts, and administrative agencies to achieve resolutions to disputes — often by settlements that ostensibly are acceptable to all parties but which, in truth, often — strike that — always leave the client with a taste of the bile of defeat or surrender. That is because what the client hears when their attorney refers to “the justice system” is “I give you my most solemn assurance that there is a system that will absolutely provide you the justice you believe you so richly deserve and exactly as you choose to define that justice (even if I tell you that it cannot be achieved).”
You see, clients want “justice” on their own terms, and to the client “justice” means “all of my fondest hopes and desires provided to me right now and in addition for someone else to pick up the tab.” This is rarely — strike that — never what the legal system will be able to provide the client.
There is one very large exception to this generality, and that is the seasoned criminal defendant, who often understands the “justice system” to mean “getting my just deserts” except when by some fortuitous event (usually an inexperienced law enforcement officer or prosecutor making an unforced error) permits the malefactor to instead receive his “just desserts” with whipped cream and a cherry on top. Indeed, these clients often seem to understand the “system” better than many attorneys.
As attorneys, we need to school our clients on the difference between abstract justice — something to which the moral arc of the universe purportedly bends at length — and what the law will permit them to obtain — which is often far less than they desire and often not at all what they want to receive. The first step toward doing this is to ban the phrase “justice system” from our client-directed vocabulary. Now matter how hard we try, we are not going to get clients to accept that a system that purports to deliver “justice” cannot simply provide the result desired without all this pesky adherence to procedure and requirements for such seemingly irrelevant things as evidence and legal justification.
We must remember that for the overwhelming majority of laypersons, judges are all-powerful beings who, if they so desired, could set all the wrongs of the world right with the stroke of a pen (and consequently are ogres of the most malevolent sort when they do not deliver the client’s conception of “justice”). Concepts such as due process, jurisdiction in its many forms, and the ultimate authority of the elected branches to enact and enforce the law are, if even vaguely remembered from a long ago civics lesson, so much irrelevancies to the power of the judge (not the “court” — for laypersons likewise do not see the institution, only the person in the robe).
So, if not a “justice system,” what do we call it? The “court system” is too narrow, for the system encompasses more than the courts, while the “legal system” is too vague — especially as the client is likely to assert that any result that does not deliver their idea of “justice” is, de facto, not consonant with the that which is legal.
I propose that “the system” or “the process” would perhaps be closer to the mark as the term to use with clients — “we must work within the system, and let the process work out.” Of course, this type of weasel words is not likely to inspire confidence in the potential client — but it would at least stifle the expectation that “justice” will be achieved.
End of rant.