The VLW Blog

A prosecutor may have to make an earlier disclosure of exculpatory evidence under Virginia ethics rules than is required under the Brady standard, under a new draft legal ethics opinion.

The Virginia State Bar is seeking comment on draft LEO 1862, which covers a controversial topic for criminal defense lawyers: What is a “timely disclosure” of exculpatory evidence by a prosecutor?

LEO 1862 posits a hypothetical in which a prosecutor knows before a preliminary hearing about exculpatory evidence – witness statements accusing someone else of the crime — as well as the death of the lead prosecution witness, an eyewitness to events. There’s an outstanding offer to let the defendant plead to a lesser offense and waive the preliminary hearing.

Does the prosecutor have to let the defendant know during plea negotiations about information that weakens the case against the defendant, the LEO asks.

The draft LEO distinguishes between the constitutional disclosure standard of Brady v. Maryland and Rule of Professional Conduct 3.8(d).

According to the advisory LEO, the duty of timely disclosure of exculpatory evidence requires earlier disclosure than is required under the Brady standard, which is necessarily retrospective.

The committee said it could not provide a definitive answer to the hypothetical question on whether a prosecutor must immediately turn over exculpatory evidence. It did, however, state that a prosecutor may not withhold the evidence merely because his legal obligations under Brady have not been triggered. The loss of an important prosecution witness may decrease a defendant’s chances of conviction, but it is clearly not “evidence” and disclosure is not required under Rule 3.8(d), according to the committee.

A copy of the Legal Ethics Committee’s draft LEO 1862 and directions for filing comments by May 4 are here.
–Deborah Elkins

A juror’s use of Wikipedia to research an element of a criminal offense violated a defendant’s right to a fair trial on illegal “cockfighting” charges, and the defendant should be retried, the 4th U.S. Circuit Court of Appeals said on April 20.

Defendant Scott Lawson and others were charged with violating a federal animal fighting statute, 7 U.S.C. § 2156(a). But after the South Carolina jury came back with a guilty verdict, one of the jurors told the court that another juror brought a Wikipedia printout to the jury deliberations that covered an online entry for the term “sponsor,” which was an element of the federal charge.

After a hearing, the Columbia, S.C., district judge found there had been some change to the Wikipedia entry from the time the juror first conducted the research to the time of the district court’s hearing on juror misconduct.

But the district court found no harm, no foul, and denied defendant’s motion for a new trial due to prejudice.

On a question that has split federal courts of appeal, the 4th Circuit said it will continue to use a rebuttable presumption of prejudice when there has been third-party unauthorized communication with a juror during trial.

Judge Barbara Milano Keenan said this presumption applies when a juror uses a dictionary or similar resource to research the definition of a material word. An extrinsic influence has been injected into the trial, which the court cannot control, Keenan said.

“Given the open-access nature of Wikipedia, the danger in relying on a Wikipedia entry is obvious and real,” Keenan wrote.

The government failed to rebut the presumption of prejudice and the appellate panel vacated Lawson’s and codefendants’ convictions under the animal fighting statute.

The case is U.S. v. Lawson (VLW 012-2-093).
–Deborah Elkins

Veteran Roanoke lawyer William B. Poff has been honored with the Roger D. Groot Professionalism Award from the Ted Dalton American Inn of Court in Salem.

Poff was president of the Virginia State Bar in 1981-82 and is a Master in the American Inns of Court. Poff has been a “role model for lawyers all over this state for more than five decades,” said Senior U.S. District Judge Robert E. Payne of Richmond, who spoke at the ceremony for Poff Monday.

Poff has an “extraordinary gift to speak to jurors at any level,” said Roanoke U.S. District Judge Samuel G. Wilson.

Poff said the Groot award is a “fitting conclusion to my legal career.”

A Virginia father can seek damages from adoption lawyers and a Utah couple who adopted his child without his permission, a divided Supreme Court of Virginia said on April 20. A tort claim for “tortious interference with parental rights” is part of Virginia common law, the court said.

According to the father’s complaint, the mother misled him into thinking they would rear the child together, while she continued talking to lawyers about adoption, at the urging of her parents. The mother did not inform plaintiff when she went into labor early and when she delivered the child on Feb. 10, 2009. Although plaintiff John Wyatt III sued for custody in Virginia, Utah courts have awarded custody to the adoptive couple. Wyatt sued in a Virginia federal court, which certified questions to the Virginia high court.

The Virginia Supreme Court authorized Wyatt’s suit against Virginia lawyer Mark McDermott, Utah lawyer Larry Jenkins and the Act of Love agency and adoptive parents Thomas and Chandra Zarembinski.

“It is both astonishing and profoundly disturbing that in this case, a biological mother and her parents, with the aid of two licensed attorneys and an adoption agency, could intentionally act to prevent a biological father — who is in no way alleged to be an unfit parent — from legally establishing his parental rights and gaining custody of a child whom the mother did not want to keep, and that this father would have no recourse in the law,” wrote Justice LeRoy F. Millette Jr. for the court majority.

Justices William C. Mims, S. Bernard Goodwyn and Elizabeth McClanahan found no such common law right and dissented from the decision “legislating public policy in Virginia through judicial pronouncement,” in McClanahan’s words.

The opinion in Wyatt v. McDermott is VLW 012-6-078.

Other cases released April 20 are highlighted in the VLW SCoVA Blog.
– Deborah Elkins

Virginia Lawyers Weekly received two first-place awards from the Virginia Press Association this past weekend, when the VPA announced the 2011 winners of its annual journalism contest.

VLW gained top honors in the categories of editorial writing and headline writing. Paul Fletcher, the paper’s publisher and editor-in-chief, received both awards.

The editorial entry consisted of several editorials published in 2011, including “A trap hidden in plain sight,” about the letter sent by four legislators to judges in the wake of the Hernandez decision, and “A teaching moment at CNU,” about the Christopher Newport University administration’s response to the theft of student newspapers.

The headline entry included five headlines published throughout the year, including “Tweet surrender,” for a story about requiring departing employees to provide social media passwords, and “At debt’s doorstep,” for a piece on the financial burden many law students face upon graduation.

VLW competes in the specialty publications category; members of this group include Virginia Business, Inside Business, the Washington Business Journal, Style Weekly, Richmond Magazine and The Hook, among others.

The awards were announced at the VPA’s annual meeting April 21 in Roanoke.

Trent S. Kerns has been elected president of the law firm of Allen, Allen, Allen & Allen.

He joins Edward L. Allen and Jason W. Konvicka as the members of the firm’s executive committee.

Kerns, who joined Allen & Allen in 1992, manages the firm’s Chesterfield office. He is one of the firm’s 14 partners – seven of whom are Allen family members. Kerns has more than 25 years’ experience litigating personal injury cases in Virginia.

The firm currently has 23 attorneys in eight offices located throughout Virginia. The offices are in Richmond, Petersburg, Fredericksburg, Mechanicsville, Short Pump, Chesterfield, Garrisonville, and Charlottesville.

The House of Delegates Wednesday squelched a legislative effort to help injured workers who cannot recall the circumstances of their accident.

The House rejected a proposal by Gov. Bob McDonnell to clarify that a presumption in favor of coverage applies when a workers’ compensation claimant has no memory of the accident, even if he can testify to other matters. A deputy workers’ compensation commissioner recently interpreted the law to require the worker be medically unable to testify at all for the presumption to apply.

As The Roanoke Times reported, the ruling denied benefits for a Southwest Virginia construction worker. Even though the claimant could testify about his name, age and address, he could not recall the details of the accident.

The deputy commissioner ruled that, because the claimant was able to testify, he was not entitled to a presumption that his accident was work related.

McDonnell’s proposed amendment would have limited to inquiry to whether the worker could testify about “the circumstances of the accident.”

“This is simply clarifying language that enacts what we intended last year,” said Del. Greg Habeeb, R-Salem, on the House floor Wednesday.

Insurance interests opposed a “fix” for the presumption because the language had been explicitly carved out in negotiations last year. Opponents said any such change in the language of Va. Code § 65.2-105 would upset the “peace in the valley” achieved by the 2011 compromise.

By Peter Vieth

The U.S. Senate has consented to President Barack Obama’s appointment of Charleston, W.Va., attorney Stephanie Thacker for the 4th U.S. Circuit Court of Appeals.

The president nominated Thacker this past September. Yesterday evening, the Senate voted 91-3 in her favor, according to The West Virginia Record.

Thacker has been in private practice with a Charleston law firm since 2006. Before that, she worked as a federal prosecutor with the U.S. Department of Justice.

Thacker replaces Judge M. Blane Michael, who died last year.

Former lawyer Troy Titus, convicted in Norfolk federal court of mail and wire fraud, has lost his appeal in the 4th U.S. Circuit Court of Appeals.

Today the appellate court released a 31-page unpublished opinion that described Titus’s involvement in “an operation that bore the hallmarks of a Ponzi scheme,” and rejected his appellate claims that challenged pretrial, trial, and posttrial rulings by the district court.

Titus surrendered his law license after the Virginia State Bar began investigating him in 2005, in response to complaints from clients.
–Deborah Elkins

Responding to a scathing report from AAA Mid-Atlantic about Hopewell’s ticket-writing program, city leaders touted the safety benefits of the sheriff’s traffic unit at a Thursday city council meeting.

Protecting lives, arresting felons and intercepting drug traffic are all advantages gained from the traffic program, according to Mayor Christina Luman-Bailey.

“How could anyone who supports safe driving possibly object to tickets being issued to speeders of 81 miles an hour [or more]?” Luman-Bailey said, reports The Progress-Index.

The AAA report brought national attention to Hopewell’s “I-295 Highway Safety Program,” with Sheriff Greg Anderson defending his speed enforcement unit to reporters from across the country. Anderson has publicly blamed Virginia State Police Superintendent Steven Flaherty for legislative efforts to undermine the program’s effectiveness as a source of revenue.

The Hopewell speed enforcement project brings in around $2 million a year for the city.