The American system of law is putatively adversarial. Not that it encourages the use of well-aimed weapons, unless one possesses deadly weapons in a battle of wits, but that one side makes an argument and the other gets an opportunity to challenge it.
The reasoning is simple. Since we can’t see into the minds of others, we don’t know what they are thinking unless they give it voice. At that point, we have an opportunity to correct, question, challenge or punt, as the case may be. There is supposed to be a parry and riposte, so that each side has a fair chance. Fat chance.
In this pathetic decision, via Appellate Law & Practice, an en banc opinion in Moore v. Com shows how the court can outsmart an attorney (like that takes a lot of brains) through the simple mechanics of raising an issue sua sponte (latin for “on one’s own accord”). It was not enough that there was a prosecutor against the defense, the court had to get in the game as well.
In this decision, the court seized on an error in the appellant’s brief, where he used the wrong legal standard of probable cause in framing the issue of whether a traffic stop was lawful, rather than the standard of reasonable suspicion. Rather than addressing the merits, in its search for fairness and intellectual integrity, the court found the perfect means of side-stepping the appeal altogether:
Moore sets forth the wrong legal standard that governs this case and also misstates the law. Whether an officer is justified in making an investigatory traffic stop is not governed by probable cause; rather, the officer’s action is judged by the lesser standard of reasonable and articulable suspicion of criminal activity. … As no appeal was sought or granted on the issue of whether “the officer’s action [was] supported by reasonable suspicion” of “legal wrongdoing” when making the traffic stop, Arvizu, 534 U.S. at 273, “we may not consider this issue on appeal” under Rule 5A:12(c).
According to the court, the use of the erroneous standard divested the court of jurisdiction. Mind you, this wasn’t raised by the prosecution so that the defense would be alerted to its error and given an opportunity to change its rhetoric to the correct legal standard. No, they missed it too, apparently. But not that tricky court. They caught it, and slam-dunked the appeal on jurisdictional grounds. Sorry, Mr. Defendant, no day in court for you.
Mind you, the error in the legal standard used for a traffic stop is (ahem) an incredibly stupid mistake. Criminal defense lawyers work with these standards every day. While their actual meaning tends to float in the breeze, given the limitations of language and the viscitudes of judges, the phrasing of the standard itself is awfully easy. There really isn’t any excuse for appellate counsel to use the wrong standard, unless he was rushing to get the brief done between real estate closings.
But counsel’s dumb mistake could have been corrected by the court, sua sponte, in its decision on the merits. Or, the court could have directed to him to rebrief it using the correct standard. Or, the court could have accepted the standard proffered by the appellant since the respondent neglected to challenge it. But not in ol’ Virginny.
Here’s the deal. When appellate counsel makes a mistake, he loses the appeal. The court considers the argument and, if he’s wrong, he loses. That’s how it goes. Sometimes, the court will pick up on a stupid mistake like this one, and apply the correct standard to the facts, and render a decision based upon the correct application of law. And then the appellant loses anyway. Okay, sometimes not, but we’re working with the odds here.
What appellate courts do not do is divest themselves of jurisdiction because of a mistaken use of the wrong words. S.Cotus nailed it with his succinct commentary:
I think this pretty much shows how we are all fooling ourselves when we claim that “the law” is all about intellectual legal argument and devoid of politics. In fact, this decision is pretty much a case-study of how judicial politics work.
Is he suggesting that the appellate courts of Virginia might be politically antagonistic to defendants, searching for new and imaginative ways to not only beat them back, but slam the door shut hard enough to whack ‘em on the butt? Why, I believe he is.