The first set of published opinions from the Court of Appeals of Virginia for 2021 includes its first reversal in a criminal case as well as its first application of a procedural bar. The Court also addresses an issue of standing in an administrative law case. Let’s start with the most unusual of the three, the reversal of a criminal conviction in a jury trial.
Rae’quan Xavier Dandridge v. Commonwealth of Virginia comes to us from the Circuit Court of Chesterfield County. Dandridge, a minor tried as an adult, was charged with first degree murder, but his theory of the case was that while he was the actor who caused the victim’s death, his actions lacked the requisite indicia of premeditation and/or malice, thus he requested that the jury be instructed on the lesser-included offenses of second-degree murder and voluntary manslaughter. The circuit court instructed the jury on the second-degree but refused the proffered manslaughter instruction, Dandridge was convicted of the second-degree murder and he appealed, assigning error to the court’s refusal to instruct on manslaughter.
At this point, I must interject to raise two important points for appellate practice. The first is that had Dandridge been convicted of the top count, an appeal on the refusal of the manslaughter instruction would have been futile. Conviction of the top count when the jury is offered second-degree as an alternative negates any possibility that the jury would have rendered a verdict on manslaughter. This is why some defense attorneys will make the strategic decision to not ask for a second-degree instruction, but only ask for manslaughter, hoping that the jury will see the case as weak and opt for the lesser offense. The Commonwealth, likewise, will often not ask for the second-degree instruction, hoping that the jury will not want to give the defendant a break.
The second point is that when an appellate court reviews a circuit court’s decision to grant or refuse a jury instruction, it reviews the evidence in the light favorable to the party that proffered the instruction. Thus, we are presented with a rare instance where the evidence in a case rendered by a jury and confirmed by the trial court is not given the benefit of the doubt. Instead, the Court is required to view the evidence in the light most favorable to Dandridge, who proffered the instruction. In my view, the Court has done an exceptional job of doing just that, because I am fairly certain that what went down when viewed from the Commonwealth’s perspective was much more sinister than its portrayal in the Court’s opinion.
A fair summary of the evidence (I direct you, dear reader to the opinion for the broader view) is that Dandridge had spent the day “hanging out” with two teenage girls who then hitched a ride home with Dandridge’s mother. Dandridge was armed with a pistol which he carried “for protection” and had placed in the driver’s seatback pocket as he was sitting in back behind his mother. After dropping off the first girl, Dandridge’s mother drove to the home of A.Y., the second girl, whose family had been advised that someone was bringing A.Y. home.
Wanting to “see who was dropping my daughter off,” A.Y.’s mother and stepfather positioned themselves across the street from the home in a parked car. Other members of the family and friends, more than ten in all, likewise positioned themselves in parked cars on the street or in the yard. When Dandridge’s mother pulled in front of the house, A.Y.’s mother received a call from one of the people at the house and drove out of the parking lot to block the front of the Dandridges’ car, while another car pulled in behind.
A.Y.’s brother and his friend, ShyHeim Brown, then approached the vehicle, interrogated Dandridge through the driver’s side back seat window and then without warning punched him in the face, then tried to drag him from the car. A.Y. warned them that Dandridge had a gun and Dandridge and Brown both reached for the weapon which was visible in the seatback pocket. Dandridge retrieved the pistol and fired four shots at Brown, hitting him with the last one and killing him.
Now, call me cynical, but I have to believe that there was more to the story than that. But, lacking any details, we move on to the Court of Appeals’ analysis, which I commend to the reader if you would like a compact, but complete, explanation of the law of voluntary manslaughter from Blackstone forward. Suffice to say that it boils down to whether the jury could have inferred from the evidence that “Dandridge acted in the heat of passion upon reasonable provocation, and thereby acted without malice” in the killing of Brown. The Court further notes that the trial court approved an instruction of self-defense, meaning that it was the law of the case that the evidence would support a finding that “Dandridge was in fear of death or bodily injury.”
In a prior case the Court specifically held that “it seems the fearful killer is a manslaughterer when his fear is produced by facts insufficient to make him a self-defender” Couture v. Commonwealth, 51 Va. App. 239, 249 (2008) (quoting Ronald J. Bacigal, Criminal Offenses & Defenses in Virginia, Homicide, 358-59 (2007–08 ed.)). Thus, it is almost a given that where there is sufficient evidence for self-defense, there is likewise a reasonable interpretation of the evidence that would support a manslaughter conviction.
The Court rejected the Commonwealth’s theory that manslaughter was negated by the fact that the final shot, the one that killed Brown, was deliberately aimed. The Court distinguished Woods v. Commonwealth, 66 Va. App. 123 (2016), where the defendant had fired 10 times, striking the victim each time, noting that the evidence was at best equivocal as to the sequence of events.
I am fully in agreement with the Court’s judgment. While I suspect that there was evidence favorable to the Commonwealth – probably with respect to exactly what Dandridge and A.Y. were doing while “hanging out” and why Dandridge, a minor, was tried as an adult when he might just have easily been convicted of a lesser offense as a juvenile if the facts and his record warranted it – the standard of review does not permit the appellate court to consider that evidence unless it was so overwhelming as to make the error in refusing the instruction harmless. The Court of Appeals expressly found that the evidence wasn’t even close to overwhelming, given that the jury convicted Dandridge of the least serious offense it could.
On remand, Dandridge will face at most a charge of second-degree murder and may be able to persuade the Commonwealth to make a deal on manslaughter.
The second criminal appeal today is Ryan Thomas Pick v. Commonwealth of Virginia from Hanover County, and it’s a longer and far less interesting read than Dandridge. Mr. Pick, a teacher, was charged with multiple counts of using a communications system to procure a minor, in violation of Code § 18.2-374.3(B), and one count of using a communications system to solicit a child believed to be less than fifteen years old, when the accused is seven or more years older, in violation of Code § 18.2-374.3(C)(1). In case you haven’t already guessed I will save you the suspense, Pick’s Lolita was actually a law enforcement officer. Pick was convicted on all counts.
Pick’s appeal challenged the failure to suppress the records of his online chats with the “female,” contending that their use would violate the wiretap act. Code § 19.2-61 to -70.3. The Court of Appeals ruled that chatlogs are not subject to the act because the party proffering them was a party to the communication.
Pick also challenged the introduction of an interview with police when a search warrant was executed at his home. Pick was initially handcuffed as the search was under way, but later the restraints were removed, and Pick was told that he was not under arrest. Pick then voluntarily accompanied an investigator to a “command post” vehicle and answered the investigator’s questions for approximately 10 minutes before requesting to speak to a lawyer at which point he was informed that the police had warrants for his arrest.
At the suppression hearing, Pick’s counsel initially argued that Pick had been in custody the entire time, but subsequently conceded that he “might” have felt free to leave after he was told he was not under arrest until he was informed of the arrest warrants.
As I already said this case involved the Court’s first invocation this year of a procedural bar, you no doubt know what’s coming. The Court of Appeals held that the issue of whether Pick was in custody during the interview had not been preserved for appeal, Rule 5A:18, because counsel had waived that argument before the circuit court by limiting his argument to whether Pick was subject to a custodial interrogation after he was advised that there were warrants for his arrest – at which point the interview had already concluded. Some would contend that counsel only said that Pick “might” have felt free to leave, also meaning that he might not have felt that way. The Court of Appeals, however, reasoned that this argument did not assert that Pick was actually in custody, only that he might have subjectively believed himself to not be free to leave.
The final issue was the sufficiency of the evidence which, unlike Dandridge, is viewed in the light most favorable to the Commonwealth. While some of the evidence against Pick was circumstantial, when viewed in its totality, the Court determined that it was indeed sufficient to sustain the charges.
Sarah Ellis Peed v. Virginia Department of Transportation and Washington Gas Light Company is a NIMBY case seeking to stop the construction of a subsurface pipeline beneath the streets of a residential neighborhood in Fairfax County. WGL obtained a permit for the proposed route from VDOT. Peed filed this action to challenge the awarding of the permit and the circuit court sustained a motion to dismiss by VDOT and a demurrer by WGL, finding that Peed lacked standing as she was not a party aggrieved of the permitting decision. Peed maintained that because she had participated in the commenting process leading up to the granting of the permit, she was a “party” to the permitting process. The Court of Appeals disagreed, finding that the plain meaning of the term “party” in the relevant statutory framework means the applicant and the agency (or any party allowed to intervene) not merely members of the public who participate in the proceedings through public comments.
Not addressed in this opinion, but a point that I wish to raise as a founding member of the Procedural Geeks Club is that the two pleadings on which the circuit court considered this case were both improperly styled. A challenge to the standing of a plaintiff should be styled as a Plea in Bar, not amotion to dismiss and certainly not a demurrer; however, it is the policy of the courts of Virginia to rule on the substance of a pleading, and not how it is styled in its caption, so I will cut counsel a little slack.
Updated: Nov 22, 2022
The first question that will undoubtedly come to mind for those who have stumbled across (or, one may dare to hope, deliberately come to read) this blog is “Why a Court of Appeals Blog? If you are an appellate lawyer practicing in both of Virginia’s appellate courts, why limit yourself to just the Court of Appeals?” The answer is simple – one does not reinvent the wheel, and Steve Emmert already has a Blog which more than adequately – I should say superlatively – covers the Supreme Court of Virginia. I have no desire to compete with Steve in that arena.
OTOH, while Steve occasionally will make reference to the opinions and actions of other courts – both the Court of Appeals of Virginia and the federal Fourth Circuit Court of Appeals as well as that other Supreme Court on the north bank of the Potomac – and while there are a few other blogs by Virginia’s appellate attorneys (I note in particular Jay O’Keeffe’s Virginia Appellate Law) and quite a few more on specialized topics, there are none that are devoted exclusively to the opinions of the Court of Appeals. Thus, there seemed to be a niche that needed filling.
This Blog will primarily report on the published opinions of the CAV, with occasional mention of an unpublished opinion as well. From time to time, there will be other topics covered – statistics, personalities, and the like. But mostly it will be a place where I can wax philosophical on the CAV’s interpretations of Virginia law.
I will officially begin reviewing the CAV’s opinions with the first release of the New Year – which may or may not occur on January 5 (Tuesdays being the CAV’s usual day to release opinions). [Edit: it didn’t, but opinions were released the subsequent Tuesday and have been summarized in a subsequent post.] However, I will also look back to opinions released in 2020 or before as time permits. Indeed, I shall do so in this first post; moreover, the opinion I wish to highlight is an unpublished opinion, so it may have passed under the radar of many. Yet this opinion, McMillan v. Commonwealth, Record No. 0557-20-1 (December 22, 2020) is worthy of a few lines if only as a cautionary tale to those who practice in the CAV (or any other court, for that matter). The moral of that tale is don’t cut corners.
McMillan involves a run-of-the-mill DUI stop. Police found McMillan in his vehicle with the engine running slumped over the steering wheel and apparently deep in the arms of Morpheus. Under these circumstances, police are perfectly justified in performing a community caretaker check. All indications were that McMillan was probably intoxicated, but he refused to take a breathalyzer test, was charged with both DUI and refusal, second offense and was convicted of the latter charge and acquitted of the former. So far there is nothing that would pique the interest of the CAV. Except that McMillan was also charged with driving after forfeiture of license, third offense in ten years, in violation of Code § 18.2-272(A) which, unlike DUI, requires proof of actual operation of a vehicle on a highway of the Commonwealth. Defense attorneys know that this is a significant point when, as here, the officers did not observe the defendant actually operating the vehicle on the road.
At trial, the Commonwealth sought to prove that McMillan had admitted to having driven to the parking lot by playing “body cam” footage in which McMillan makes some reference to having “been” on Moorestown Road, a nearby thoroughfare. The Commonwealth contended that this was an admission that McMillan drove from Moorestown Road to the parking lot; the defense argued that it established only that McMillan himself was on Moorestown Road, but it proved nothing about where the vehicle was. Thus, the evidence did not exclude the reasonable hypothesis that McMillan walked (or more likely stumbled) from wherever he had been partaking of adult beverages to his parked vehicle and, recognizing that he was not in a condition to drive, turned on the engine so that he could warm the vehicle while he slept it off. To those uninitiated in the ways of DUI cases, merely starting the vehicles engine is proof of “operation” of the vehicle.
The circuit court was having none of this “reasonable hypothesis of innocence,” overruling McMillan’s motion to strike without comment at the close of the Commonwealth’s case and again, after McMillan declined to testify or offer evidence in his own defense, in a summation of 101 words (the reason for giving the precise word count shall be made clear anon). Thereafter, the court convicted McMillan and sentenced him to two-years imprisonment with one year suspended and a concurrent sentence of three months incarceration for the refusal, third offense.
One great frustration of analyzing an appellate opinion is that generally you don’t have access to the record – either the actual record in the trial court or the designated record available to the appellate court. While it is possible to access these, it is not an easy process, at least not yet in this Commonwealth. Accordingly, we can only speculate about the next several steps in the process. For example, we know that McMillan had appointed counsel at trial and that after sentencing a new order appointing counsel was entered. The possible reasons that this was done in ascending order of likelihood are: 1) the court was entering an order confirming that trial counsel would represent McMillan on appeal (though this is not necessary, as it is normally the case); 2) trial counsel sought to withdraw because s/he did not believe s/he was competent to pursue an appeal or was conflicted from doing so because McMillan had filed an ethics complaint against him/her; or 3) McMillan, dissatisfied with his trial counsel’s performance, requested appointment of new counsel.
Option three is most likely, and, IMHO, McMillan did his trial counsel a great disservice – the counsel’s performance at trial by all appearances was more than competent – consider first that s/he was able to secure an acquittal of the DUI charge. More to the point, however, the issue whether the evidence showed that McMillan drove on a highway of the Commonwealth was fairly thin – in fact had I been the trial judge I likely would have agreed that the evidence did not exclude the possibility that events occurred exactly as defense counsel had suggested and struck the Code § 18.2-272(A) charge. It is certainly not defense counsel’s fault that this particular circuit judge did not see things that way.
At any rate, McMillan’s new counsel noted an appeal and filed a petition in the Court of Appeals. It is at this point that things get interesting, because an appeal was granted following a one-judge review. If you know much about the CAV, you probably know that unlike civil and administrative appeals within the Court’s jurisdiction, criminal appeals are not appeals of right. Rather, as in the Supreme Court, a defendant must first seek a writ of error by petition. Once the appeal is procedurally perfected (a process overseen by the Clerk of the Court), the petition is then reviewed by – and this you may not know – a staff attorney, or very often a law-student extern supervised by a staff attorney. The staff attorney is supposed to do three things: first, s/he determines that there are no procedural bars to the appeal; second, s/he determines whether there is any merit to the appeal; and third, s/he drafts an order with the recommended disposition.
The staff attorney’s recommendation is presented to a judge of the CAV who can accept, reject, or modify the order (and in all candor, if the original work was done by an extern, the Chief Staff Attorney may have already modified the recommendation – law student interns see all kinds of merit issues that more experienced hands know are non-starters). If the appeal is refused, the defendant can request a review by a three-judge panel with oral argument. As an appeal was granted, that did not happen in this case.
So, at last, we reach the actual appeal which resulted in the unpublished opinion. Before getting to the main holding of the appeal and the point of this essay, let us take a brief moment to consider this passage in a footnote from the recitation of the facts:
The [body cam] video contained the only admission by McMillan as to how he arrived in the parking lot. The parties apparently disagreed as to what was said on the video, and the trial court relied on the video in convicting McMillan. However, because the Commonwealth neglected to introduce the recording into evidence, it is not part of the record, and we are unable to consider it in our review. We will leave for another day the determination of whose responsibility it is to ensure that a recording played during trial is made part of the record.
McMillan, slip op. at 2 n.2 (emphasis added).
Lacking access to the record, we cannot know when this deficit was first noted by the Court. It should have been picked up by the defense – or certainly by the Commonwealth when (if) a brief in opposition to the petition was filed. Had it been noted before the petition was filed – perhaps even before the record was transferred from the circuit court to the Court of Appeals – it likely would have been possible to correct this omission by an order nunc pro tunc. The record plainly showed that the video had been played in court and that the court had relied upon it in making its judgment. The oversite in not having it admitted to the record was clearly a ministerial, not discretionary, act and the very sort of thing that nunc pro tunc is intended to accomplish. Whether the video could have been added to the record after it had been received by the Court of Appeals and the petition was filed is a somewhat more complicated issue, but it is at least conceivable that the Court would have considered issuing a writ of certiorari or possibly a writ of coram nobis. We also do not know if the parties were made aware of this issue before oral argument, at oral argument, or only when the opinion was released.
In any case, the video was not part of the record. Now, some may wonder why this was not itself fatal to the appeal, or for that matter why the Court specifically noted that it was not going to address whose burden it had been to have the video admitted. This is a fascinating issue, because while it is well-established that the party (typically, but not always, the appellant) seeking to call an appellate court’s attention to some element of the trial record has the burden to make certain that it is made a part of the record on appeal, the question of which party has the initial burden to see that it is made a part of the record at trial is less certain.
The general rule is that the party who first relies on the evidence or exhibit should move its admission; but if formal admission is not sought by the proponent, does the opponent have a duty to do so? Like most legal questions, the answer is “it depends.” If the opponent intends to rely upon the evidence, which arguably in this case it did, it may very well be that the opponent has a concurrent duty to see that the evidence is received by the court as evidence, and not merely for identification. This is certainly the case when evidence is admitted for a limited purpose and an opponent subsequently wishes to rely upon it for a different or more general purpose. These, as the Court indicated, are questions for another day.
So why was the lack of a complete record not fatal to the appeal? The Court does not say so expressly, but it presumably was of opinion that the issue was not whether the evidence was sufficient to prove that McMillan operated a vehicle on a highway of the Commonwealth in contravention of Code § 18.2-272(A), but rather whether the evidence was sufficient to prove this beyond a reasonable doubt, excluding every reasonable hypothesis if innocence. Was the body cam video necessary evidence to decide this issue? Arguably not.
Now what follows is pure speculation, because, as I said, the Court did not express why it chose not to dismiss the appeal for lack of a complete record, but the evidence that was in the record showed that McMillan was found at the wheel of a running vehicle in a parking lot. Excluding the ambiguous statement from the body cam video, does this evidence without more satisfy the Commonwealth’s burden of going forward at the close of its case?
It does. Recall that a motion to strike at the conclusion of the Commonwealth’s evidence requires the court to accept that evidence in the light most favorable to the Commonwealth including all reasonable inferences to be drawn therefrom. While I know a great many defense attorneys who would dispute the point, the fact is that being found at the wheel of a running vehicle gives rise to a reasonable inference that the vehicle has been recently driven, and, as people are not known to drive around parking lots to no purpose, it is an equally reasonable inference that a running vehicle found in a parking lot was driven there by the occupant of the driver’s seat.
Now, there are those who will protest that the burden of going forward with the evidence is not the same as the ultimate burden of proof – and they would be quite correct. How then, they ask, did this case survive the motion to strike at the close of all the evidence? The answer is that where, as here, the defendant elects not to put on a case, the trial court does not afford the defense any benefit of the doubt as to the Commonwealth’s evidence after the defense rests, and if it was sufficient to survive the first motion to strike, ipso facto, it is sufficient to survive the second.
“So,” I hear you cry, “why the fuss? — Obviously the circuit court must have convicted upon finding that the Commonwealth meet its burden of proof (else there would be no appeal) and given the deference to a court sitting as trier of fact, sufficient is as sufficient does, right?” Well, in a word, no. Which brings us back to the reason the Court probably didn’t kick the appeal for lack of a complete record. Sufficiency of the evidence in rendering judgment is subject to the same standard as it is on appeal — it must support a finding of guilt beyond a reasonable doubt, excluding every reasonable hypothesis of innocence. In short, the absence of the body cam evidence was not essential to determining this, because everyone agreed that it was the defendant’s statement about having “been on Morristown Road” that the circuit court relied on in inferring that McMillan had driven to the parking lot. So, I infer that the argument at trial had been that there was an equally reasonable inference that he had walked from Morristown Road to where the car was parked, and that someone else had driven it there previously. (Remember, it does McMillan no good if the evidence establishes he drove the vehicle to the parking lot at any point, drunk or sober).
Now, this creates one of those “Rube Goldberg” arguments about how far you have to go to find that a hypothesis of innocence is reasonable and does not merely “spring from the imagination of the defendant.” Case v. Commonwealth, 63 Va. App. 14, 23, 753 S.E.2d 860 (2014). Since the officers did not see McMillan actually drive the car, the issue is how does one go about proving that the car arrived at the parking lot under McMillan’s control rather than that of some other person? The only thing in favor of that view is that McMillan was found alone in the vehicle in possession of the key. Is that sufficient to create a presumption that he drove the vehicle there? Yes. Is it sufficient to exclude the possibility that someone else could have driven the vehicle there? I would argue that it is not — though the circuit court judge obviously thought it was. Which sets up what the argument on appeal ought to have been.
Herewith follows the sum total of that argument as presented in the opening brief as quoted by the Court of Appeals in its opinion:
It is against this standard that the Appellant, Gregory Lynn McMillan argues that the trial court erred in finding the evidence sufficient to find him guilty of driving after forfeiture of license, 3rd or subsequent offense within 10 years, in violation of §18.2-272 of the Code of Virginia. Reynolds v. Commonwealth, 30 Va. App. 153, 515 S.E.2d 808 (1999). Appellant argues that there was no evidence before the Court that he drove on the highway with his vehicle. This was a circumstantial case, and the trial court did not exclude every reasonable hypothesis of innocence as to how the Appellant came to be in a vehicle in a private hotel parking lot. The Appellant could have been towed there or another person could have driven the vehicle to that location. Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983).
McMillan, slip op. at 3.
Remember I said the judge’s 101-word summation was relevant — here’s why. Judges aren’t required to say anything other than to pronounce the verdict — they don’t have to give their reasons for doing so. Lawyers, on the other hand, are paid to say (and write) things. So when I see an argument on appeal that is only 18 words longer than the trial judge’s summation, I think perhaps something is amiss.
My favorite quotation from the Rules of the Virginia Supreme Court (pardon a brief aside but given that the official name of the Court is “Supreme Court of Virginia,” it has always bothered me that the rules of the Virginia court system are named as they are – if you happen to know why this is, please drop me a line) is found in subsection j of Rule 1:4, “Brevity is enjoined as the outstanding characteristic of good pleading.” That few attorneys appreciate the importance of this admonition can be verified by the random selection of any pleading from the simplest motion in any circuit court to the brief of paramount significance in the Supreme Court of Virginia. Lawyers – even good ones – simply do not know how to write succinctly.
Let me be clear on one point – while the lack of brevity in most pleadings is not necessarily detrimental to your case, merely being brief most certainly can sink your case faster than a lead balloon if you mistake inadequacy for brevity. Which brings us to the nub of McMillan, a case which demonstrates that it is possible to be brief without being complete and that brevity alone is not a good thing. It also brings us to my favorite quote from a Virginia appellate court (at least in this context), “We do not deem it our function to comb through the record of this four day trial in order to ferret-out for ourselves the validity of these claims, assisted only by counsel’s conclusory footnote.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7 (1988) (en banc). Bass was authored by Judge Barbara M. Keenan (later to be Justice Keenan and then Judge Keenan of the 4th Circuit), and that pithy footnote initially appeared in her opinion in the case decided by a three-judge panel.
So why does this quote apply to McMillan? Didn’t he put his theory forward succinctly and support it with citations to the law? He sure did — it’s just that his citations were to the wrong law — or as the Court of Appeal put it, “McMillan cites—without explanation or pinpoint cites—two cases in support of his sufficiency argument, but neither is persuasive.” McMillan, slip op. at 4. They aren’t persuasive for the simple reason that both are cases in which the Court considered a straightforward sufficiency of the evidence argument, not a hypothesis of innocence argument, and affirmed the convictions. While Reynolds was at least close to being on point — it involved a charge of driving suspended on a restricted license – Coleman is a rape/murder case. Pardon me while I shout: WHY WOULD YOU CITE A RAPE/MURDER CASE IN A TRAFFIC APPEAL, ESPECIALLY ONE IN WHICH THE DEFENDANT LOST THE APPEAL????????
Thanks, I feel much better. To make this long blog post short, let’s jump to the chase. The Court of Appeals found that this argument failed to satisfy the requirement of Rule 5A:20(e) that the appellant’s opening brief contain the principles of law, the argument, and the authorities relating to each question presented. Id. at 3. Failure to provide the Court with an adequate argument is a procedural bar to reviewing the merits of the case on the assignment of error — and McMillan had just one.
Now, you may ask me if I agree with the Court of Appeals. I am shocked to say, “I do.” Shocked because there probably would have been a time when I would have said, “C’mon! Gimme a break!” I would have argued that, as slender a reed as it was, there was a sufficient basis for reaching the merits. So, what has changed? Have I become jaded after a quarter century or more studying the appellate law? Have I suddenly turned from a bleeding heart to a heart of stone? Neither. It is just that I have come to appreciate the truth of the aphorism that the wheels of justice grind slow, but exceedingly fine.
First, the Court of Appeals could have reached the merits of this case and, even with a proper argument from the appellant, found that the “other driver theory” was a bridge too far (I’m not even going to touch the tow truck theory). Second, I think this case falls into a category that is abbreviated “GLWYH” by certain members of the appellate bench and bar. GLWYH stands for “Good Luck with Your Habeas.”
Over the last 20 years or so, the Rules of the Virginia Supreme Court (grrrrr!) have been repeatedly amended to make the job of appellate lawyers easier by eliminating various procedural traps and providing mechanisms to rectify procedural errors, and still a significant percentage of appeals are dismissed without a review on the merits because the appellant’s attorney screwed it up. It’s not the job of the appellate courts to make up for the failings of the bar to ensure that we have qualified appellate lawyers, or at least competent ones. It’s cases like McMillan that show we need to do a better job making trial lawyers (and transactional lawyers) understand that having a license to practice law does not make you a capable appellate lawyer — you either need to acquire the skills for yourself or associate an attorney who has them. Is that a self-serving statement? You betcha’! It’s also true.
Updated: Nov 22, 2022
Welcome to the Virginia Appellate Lawyer Blog. The principal focus of the VALB will be appellate practice in the Virginia court system. While I will not shy away from commenting on significant events in the federal system, I prefer to concentrate on the law and courts of Virginia because like politics, the most significant impact the government has on individual citizens is local. To that end, I will be creating a special category in the VALB to cover the Virginia Court of Appeals. Why no the Supreme Court of Virginia? Well, because Steve Emmert’s Virginia News and Analysis already covers that court and I cannot approve on perfection. I will be putting my first post on that topic as soon as this one is finished. What else will I be discussing? Who knows? We will see where the whimsical world leads us. Welcome!