A lawyer trying a case constantly is on guard. When something wrong gets said, he needs to object. Right away. But he has to keep an eye on the judge. She may be impatient, wanting to move on. The lawyer doesn’t want to anger her or risk looking bad in front of the jury.
A new decision from the Supreme Court of Virginia demonstrates what a dilemma this softshoe act can pose.
The high court could not agree whether a criminal defense lawyer had done enough to bring his protest to the attention of the judge. The majority suggested the lawyer had timidly allowed his objection to be swept into oblivion by an impatient judge, but two members of the court said that interpretation ignores the real world of the courtroom.
For trial lawyers, the case displays a classic conundrum: Something has happened in court that might be unfair to your client. It might be significant, but you may not even know the details of what occurred.
The judge is eager to move on, to get the case to the jury. To undo a mistake, or get a clear ruling for appeal, you are going to have to stop the proceedings, go over what happened, and articulate a clear objection. You rise to speak.
On the other side of the courtroom, the opposing lawyer puts on a show of exasperation. The judge, too, seems irked. “Can’t we deal with this later?” he says.
The words you use to answer that question will be examined under a microscope if the case goes up on appeal.
Portsmouth case involved prosecutor’s closing argument
In Maxwell v. Commonwealth (VLW 014-6-027), a Feb. 27 decision incorporating two cases, the lens was focused on a lawyer in a Portsmouth courtroom. His client was Vincent Rowe, accused of grand larceny. The prosecutor was wrapping up the case for the jury.
The prosecutor made what sounded like an improper argument. He said circumstantial evidence in the case created an inference of guilt requiring evidence to overcome that inference. He then added, “And, as you know at this point, the defense has offered no evidence.”
Two sentences later, the state lawyer finished and sat down. The defense lawyer rose and addressed the judge.
“Actually, before I make my argument, there is a motion I would like to make outside the presence of the jury,” the lawyer said.
The judge responded, “We’ll deal with it when the jury goes out to retire.”
“Very well,” said the defense lawyer.
With those words, the lawyer lost his chance to argue in an appeals court about how the prosecutor may have unfairly shifted the burden of proof to the defendant, the Supreme Court majority held.
Court decides three appeals on ‘contemporaneous objections’
The decision in the Rowe case is matched with another case in which a criminal defendant gets a second shot at appeal because a judge reviewed and answered a jury’s question outside the presence of the defendant and his lawyer.
And, in a separate opinion released Feb. 27, the court overturned a witness’s contempt conviction because she was denied an opportunity to object before being sent to jail.
All three appeals involve a state statute and court rules governing the need to make a “contemporaneous objection” to preserve an issue for appellate review.
In the Rowe case, the defense lawyer urged a mistrial after the jury left to begin deliberation. The judge denied the motion. That motion came too late for appeal, said the Court of Appeals of Virginia.
Before the Supreme Court, Rowe’s lawyers argued he should be allowed to raise the issue of the prosecutor’s prejudicial closing argument since the trial judge blocked his effort to object in time to correct the harm.
Rowe pointed to a statute, Va. Code § 8.01-384, that says an appeal is not foreclosed “if a party has no opportunity to object to a ruling or order at the time it is made.”
The Supreme Court majority agreed with the state, however, that Rowe failed to make an objection with the “requisite specificity.”
“Rowe’s counsel’s colloquy with the court makes it clear that he had the opportunity to make his objection known to the court and articulate more clearly the action he desired the court to take and that the action needed to be taken before the jury retired,” wrote Justice LeRoy F. Millette Jr. for the majority.
Dissent urges focus on ‘real world’
The lawyer did not need to explain his motion, countered Justice Donald W. Lemons, in a dissent joined by Justice William C. Mims.
“[T]here has to be a recognition of real world trial practice,” Lemons wrote. “Everyone acquainted with trial practice would know what this motion was – a motion for a mistrial based upon the Commonwealth’s Attorney’s reference to the defendant’s failure to present evidence.”
Lemons defended the attorney’s acquiescence.
“Defense counsel had to decide whether to argue with the judge in front of the jury and demand that his motion be heard before the jury retired, or to abide by the trial court’s ruling.”
Arguing with the judge right before the case went to the jury would risk alienating the jurors, Lemons said.
“Civility and decorum on the part of defense counsel should not be equated to a waiver of the defendant’s fundamental right to appeal,” Lemons said.
Falls Church defense lawyer David Bernhard said he agreed with Lemons.
“This is a habitual problem for lawyers. They want to be civil, like the Supreme Court wants them to,” Bernhard said.
The contemporaneous objection rules, however, require more aggressive behavior.
“You have to jump up and object and be in their face,” Bernhard said.
Lawyers need to be ready to take some heat, agreed Steven D. Benjamin of Richmond, who said the court is offering a lesson for defense lawyers.
“Look, you’ve got to stand up. You’ve got to show some spine. Criminal defense attorneys can’t be wimps,” Benjamin said. “You can state your objection and your grounds with clarity and with respect, but clearly you must speak.”
The Supreme Court may have overlooked the distinction between witness testimony and closing argument in analyzing the Rowe case, Bernhard said. With witnesses, you have to object before the next question. With a closing argument, the cure can come later, he said.
Defendants win in two appeals
Rowe was the only loser among the three criminal defendants arguing about contemporaneous objections this term.
Derrick Maxwell will have his Frederick County conviction for unlawful wounding reviewed by the Court of Appeals because a judge handled a jury question without giving Maxwell or his lawyer any opportunity to consider the situation.
The jury question came while Maxwell’s lawyer was getting a bite to eat at her office, just 10 minutes away from the courthouse.
The lawyer had asked to be excused for a meal after the jury retired to consider the case.
After the jury convicted Maxwell, recommending a five-year sentence, the judge acknowledged there had been jury questions while Maxwell and his lawyer were away from court. The judge said the jury’s questions could be answered by the jury instructions and he had told the jury to just read the instructions.
Maxwell claimed the judge’s communication with the jury, without lawyers present, violated his right to be present during his trial. The Court of Appeals said the lawyer’s failure to make a contemporaneous objection to the communication doomed the appeal.
Not so, said the Supreme Court in a 6-1 decision. With their excused absence, Maxwell and his lawyer did not have the opportunity to be present and challenge the court’s decision to address questions from the jury, the court said.
The Supreme Court sent Maxwell’s appeal back to the Court of Appeals to consider the judge’s communication with the jury.
Witness jailed before she could object
Felecia Amos also emerged a winner among cases decided Feb. 27.
Amos had been involved in a contentious split with her husband, complicated by custody exchanges of the couple’s son. Amos complained that her husband had threatened her during two encounters, in violation of a court order.
Describing one such incident at trial, she claimed the husband harassed her with profanity and threats and followed her in his car.
Apparently unknown to Amos, the husband had brought a witness to observe the custody exchange. The witness even videotaped the encounter.
The evidence from the witness contradicted Amos’ testimony.
The Arlington County judge accused Amos of having “flat-out lied under oath” and using the court process to further her vindictive intentions. The judge held Amos in contempt, sentenced her to 10 days in jail, and promptly called the next case.
Amos filed a motion to vacate her sentence and also appealed to the Court of Appeals.
The state argued she gave up her due process claims because she did not object when the trial judge held her in contempt.
The Court of Appeals decided Amos never had the chance, reversing the contempt conviction.
The Supreme Court agreed, finding Amos’ appeal was preserved under the “unusual circumstances” where an unrepresented witness – found in contempt – was immediately taken to jail.
The parties did not dispute that the actions of the judge prevented Amos from presenting a contemporaneous objection, the court said.
Besides encouraging defense lawyers to speak up, the Maxwell and Amos opinions have other lessons, Benjamin said. For trial courts, he said, the decisions teach that expediency should not trump proper procedure.
The lesson for the Court of Appeals is, “You’re going overboard with procedural default,” Benjamin said.
“The Supreme Court wants to keep things a little more on the straight and narrow than the Court of Appeals,” agreed Jonathan P. Sheldon of Fairfax.
Noting his criminal defense experience around the country, Sheldon said Virginia stands out for the use of procedural error to block appeals.
“I have never seen procedural default so strictly and unfairly applied as in the state of Virginia,” Sheldon said.