uvAggravator2.0

Virginia Attorney General Ken Cuccinelli says he will donate the $55,000 given to his campaign by the director of a Navy veterans organization that’s under investigation in several states.

The donation from Bobby Thompson, whose whereabouts are now unknown, was the second largest individual contribution to Cuccinelli’s campaign, reports The Roanoke Times.

Thompson had sought relief from Virginia regulation of charitable solicitations. He apparently fled after press inquiries questioning the legitimacy of the U.S. Navy Veterans Association.

By Peter Vieth

Our sister paper in Phoenix, the Arizona Capitol Times, has been following the controversy over that state’s new immigration law. A federal judge considering the government’s challenge to the Arizona law ruled this morning. ACT Editor Matt Bunk filed this breaking news report:

Federal judge strikes down major parts of S1070

PHOENIX–A U.S. District judge has temporarily blocked major portions of Arizona’s new immigration law, while allowing other parts of it to take effect tomorrow.

Judge Susan Bolton said the federal government is likely to succeed in arguing that federal immigration law would be preempted by portions of the state law that require an officer to determine the immigration status of a person stopped, detained or arrested if there is reasonable suspicion that the person is unlawfully present in the U.S. and that require verification of immigration status of any person arrested prior to releasing them from custody.

For the rest of the story and a copy of Bolton’s order, click here.

- Paul Fletcher

Guy Tower will step down as executive director of the Virginia Bar Association in July 2011 after six years in the post.

Tower, who will turn 70 next year, said in a letter to VBA President Steve Busch that he believes “this is an opportune time for transition” for both the association and himself.

Tower cited a series of accomplishments, including the development of a strategic plan that he and Busch expect to be completed before this retirement.

Other projects included the Pro Bono Summit held in Richmond earlier this year, the Rule of Law Project that brings the concept to state middle school students, the Principles of Professionalism for Virginia Lawyers, and raising almost $100,000 to help restore the legal infrastructure in Louisiana after Hurricane Katrina.

“I am particularly proud of the VBA’s work to advance the highest ideals of the legal profession through advocacy – especially in its law reform work at the Virginia General Assembly – and public service,” Tower said.

Before joining the VBA, Tower was a partner at Hunton & Williams in Richmond and Kaufman & Canoles in Norfolk. He also was a founding member of The McCammon Group, a mediation and arbitration firm, and director of judicial education for the Supreme Court of Virginia.

That broad experience “propelled our organization to new heights,” Busch said. “This is evidenced by our legislative successes, enhanced relationships with other bar-related organizations and the Supreme Court of Virginia, and the excellent staff that he has developed in support of our mission.”

Tower said he likely will return to mediation after his retirement.
By Alan Cooper

Saying their lawsuit was “legally dead on arrival at the courthouse,” a Patrick County Circuit Court has sanctioned a veterinarian and his lawyer for pursuing a frivolous lawsuit in violation of Virginia Code § 8.01-271.1.

Like the Wicked Witch of the East, the lawsuit “was ‘not just merely dead,’” but really “‘most sincerely dead,’” said Judge Designate Clifford R. Weckstein.

Plaintiff William Lockhart Boyce sued witnesses who testified at a disciplinary hearing by the Virginia Board of Veterinary Medicine. The board placed Boyce on probation after finding he violated statutes and regulations in his care for a dog that belonged to one of the witnesses.

Lockhart did not appeal the board action. Instead, he began agitating against the witnesses on his weekly radio show and in newspapers, and talking to lawyers. He eventually hired John W. Swezey, a member of the Virginia bar since 1967. Swezey filed suit in 2004.

But Swezey and Boyce should have known better, according to the trial court’s opinion, released today. Two months before Boyce filed suit, the Supreme Court of Virginia, “in a case legally indistinguishable from this one,” held that the defendants were completely immune from suit. That case was Lindeman v. Lesnick.

Weckstein ordered the veterinarian and his lawyer to pay $23,288.50 in legal fees to three law firms who represented the defendant witnesses, as well as the witnesses’ costs and costs to the clerk’s office. He also ordered payment of reasonable expenses to the Office of the Attorney General, who intervened in the suit, as well as a $6,500 punitive sanction to the AG’s Office “to reimburse the citizens of the Commonwealth of Virginia” for legal services.

The court ordered additional ethics training for Swezey and for Boyce, in their respective professions.
By Deborah Elkins

On the heels of the ‘Shaggy defense’ comes a drug case out of the Maryland Court of Appeals. Our sister paper, the Daily Record, reports on a recent opinion that peppers in not one, but two, colorful pop culture references.

“Reminiscent of a scene from a Cheech & Chong* movie,” Judge Glenn Harrell begins his majority opinion, police raided a Baltimore residence where occupants were found to be “shrouded in a haze of marijuana smoke.” The appellant, who sat within an arm’s reach of the drugs, but had none on his person, “remained ‘groovy,’” but was arrested nonetheless.

The appeals court upheld his conviction of simple possession of marijuana.

Judge Clayton Greene dissented, biting back with a familiar line from the animated Comedy Central series, Southpark:

“Although, in the immortal words of Mr. Mackey*, ‘[d]rugs are bad,’ the law imposes no legal duty, as opposed to moral duty, to stop others from using drugs, or to run away from people who are using drugs.”

*Those unfamiliar with these characters can refer to the handy footnotes provided on pages 3 and 44 of the opinion.

By Sarah Rodriguez

Privacy advocate B.J. Ostergren, who posted state officials’ Social Security numbers as a dramatic demonstration of security lapses on official websites, won an appellate victory Monday.

A 4th U.S. Circuit Court of Appeals panel affirmed a district court ruling that a Virginia law barring Ostergren’s public postings violated the First Amendment. The 3-judge panel remanded the case to Senior U.S. District Judge Robert Payne to craft an even stronger injunction against enforcement of the law aimed at Ostergren’s publications.

Ostergren publishes TheVirginiaWatchdog.com, which advocates against the government making personal information available on the Internet.  The website posts public records, including the Social Security numbers of some public officials obtained from government websites.  By posting those documents, Ostergren intends to illustrate how easy it is to obtain private information from government websites.

“Given her criticism about how public records are managed, we cannot see how drawing attention to the problem by displaying those very documents could be considered unprotected speech,” wrote Judge Allyson Duncan for the panel.

By Peter Vieth

The Virginia Court of Appeals today rejects constitutional challenges to two convictions, holding in one case that a dying declaration is an exception to the Confrontation Clause and finding in the other an exception to the recent U.S. Supreme Court opinion ruling that the arrest of a driver generally does not authorize the warrantless search of his vehicle.

In Satterwhite v. Commonwealth, the victim in Norfolk was covered in blood from three bullet wounds to the chest and one to the head when he told his girlfriend, a dispatcher and police that the defendant had shot him.

The injuries were serious enough that the victim must have thought death was near, even though he survived six weeks, Judge D. Arthur Kelsey wrote for the appellate panel. The Confrontation Clause argument failed because a dying declaration was well recognized as an exception to both the hearsay rule and the Confrontation Clause at the time the Bill of Rights was adopted, Kelsey said.

In the second opinion, also by Kelsey, the same panel distinguished Armstead v. Commonwealth from the 2009 U.S. Supreme Court decision in Arizona v. Gant. The high court rejected the holding of many state appellate courts, including Virginia’s, that police could search a vehicle with no suspicion of criminal activity following the arrest of a recent occupant.

The Supreme Court said, however, that a warrantless search is permissible if it is it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In this case, a Newport News police officer arrested the driver and searched the car after the driver was unable to provide a driver’s license or registration and the officer was could not verify that the driver had a license in Virginia or the District of Columbia, as the motorist claimed.

The policeman said he hoped to find identification in the car. He did, along with cocaine and marijuana. The circumstances the police officer confronted were squarely within the exception articulated by the Supreme Court, Kelsey said.
By Alan Cooper

Laptops in hand, over 1,000 law graduates will converge on the Roanoke Civic Center tomorrow to pound out the July bar exam.

The Virginia Board of Bar Examiners expects around 1,500, but only some 250 will scrawl their essay answers in longhand this year, according to Richmond lawyer W. Scott Street III, the board’s secretary-treasurer.

There may be a feeling of déjà vu for one group of applicants. They’ve joined the ranks of people who did not pass a bar exam on the first try. That list includes plenty of successful, even famous, folks, if you believe lists circulating on the Internet.

For bar applicants who will face a third try after July, there is a chance to get some feedback before the next attempt. The VBBE will review an applicant’s essay test responses and offer some guidance to individual candidates for the bar.

In place for about 20 years, the program has largely been a one-man operation conducted out of Street’s Richmond office in recent years.

The board has “very limited human resources to try to give somebody personal feedback,” Street said from Roanoke. “A lot of people fail the first time and zip through the second time,” either because of some personal situation that affects their performance during their first try, or because they realize they just need to study more.

But for applicants who fail two or more times, “we wonder whether there may be some problem to way they’ve approached questions, particularly essay answers,” Street said.

He generally sees about 15 to 20 people after the July exam and about 20 to 30 people after the February exam. After this year’s February exam, Street held 45-minute interviews in his Richmond office with 26 people over a four-day period. He scheduled these sessions after going over the applicants’ past essay answers.

Often, he said, “they just didn’t read the facts carefully enough, for example, if there are four sub-parts to a question” and because of the rush and not paying attention they’ll miss answering one. He also may ask applicants to write out a practice answer to a question in advance of the interview.

“Every now and then,” Street said, “you’ll find one or two who write beautiful answers on some questions” but founder on others, because they plan to specialize their legal practice and may have missed out on some basic areas covered in the bar exam’s general survey of law.

Street gave up on tracking the performance of bar applicants who sought out the counseling. He couldn’t necessarily attribute their eventual success to the board’s efforts, he said.

“I’ve really enjoyed doing it. I know if I were doing something and didn’t know what was wrong,” I would appreciate the help, Street said.

On the other hand, Street probably wouldn’t object if his schedule is freed up after this next round of testing.

Good luck to all applicants!
By Deborah Elkins

The Mandatory Continuing Legal Education Board has postponed until Nov. 1, 2011, the effective date of its requirement for four hours of interactive CLE.

Earlier this year, the board adopted a regulation effective Nov. 1 that requires lawyers to get a third of their 12-hour annual CLE hours from programs that provide the opportunity for feedback by those attending them.

But the board decided at a meeting last week that more time is needed so that lawyers and MCLE providers have an opportunity to clearly understand the regulations before they go into effect.

Some members of Virginia State Bar Council disagreed with the new requirement, which led to proposed amendments that would give the council the final say on MCLE rules and regulations.

An earlier post and links within it detail the discussion.
By Alan Cooper

The Virginia State Bar has posted for comment proposed changes to the Mandatory Continuing Legal Education rule.

As we reported earlier this month, a task force appointed by immediate-past VSB President Jon D. Huddleston has recommended that VSB Council have the final say on rules and regulations adopted by the MCLE Board.

The issue came up at the council meeting in February with the announcement that the board had adopted a rule that requires four of the 12 annual hours of CLE to be “interactive” – programs that provide the opportunity for feedback by those attending them.

Council members were told that they had no authority to change the new rule, but David A. Oblon, a council member from Arlington, submitted amendments that would allow council to reject regulations and rules adopted by the board.

The task force reviewed the proposal and recommended that rejection of any rule or regulation be by two-thirds vote of council.

The task force also recommended that new rules and recommendation be approved by a majority of the 12 members of the MCLE Board. The rule now allows a quorum of five members of the board to adopt a regulation, which creates the possibility that three members could enact a rule that would not be subject to any review.

Any changes to the rule must be approved by council and the Supreme Court of Virginia.

Comments are due by Sept. 15.

By Alan Cooper

“Body, unity, love, lust and soul.” If it sounds like a modern marketing campaign, it is. It represents the five-point star of the Bounty Hunter Bloods street gang.

Gang member Gary Toliver sports some of these values as body art. Police took pictures of his eight tattoos after his arrest in 2008, and the photos were introduced at his Norfolk federal trial on racketeering and related charges.

Toliver, a/k/a Lil Gary, said photos of his tattoos violated his Fifth Amendment right against self-incrimination. In an unpublished opinion, the court said tattoos are a physical trait, like his voice or handwriting, and are not testimonial. Nor did an agent’s testimony interpreting the tattoos violate the Sixth Amendment Confrontation Clause, the court said.

The decision upholding Toliver’s convictions offers a chilling tutorial in gang life.

The panel traced the origins and present-day outlines of Norfolk’s BHB. Established in the early 1990s by an “Original Gangster” from New York, the gang allegedly controls Norfolk neighborhood “chapters” led by “generals.” Generals command “young gangsters” or “little homies.”

The most common way to join the BHB is “to shoot a 31.” The applicant stands in the middle of BHB members in a five-pointed star formation, and submits to a 31-second beating by current gang members. Members also can be “blessed” in and “women, called rubies, can be ‘sexed in,’ by having sexual intercourse with five members of the gang.”A gang leader estimated up to 400 members in the BHB at the time of trial, mostly teenagers, but some as young as nine.

At regular chapter meetings, members were encouraged to “represent their flag” and to engage in fundraising through home invasions, robberies and sales of narcotics. Little homies who refused to “put in work” might have to shoot a 31 again. The 31-second fight also is cited in a Portsmouth case decided the same day by the Virginia Court of Appeals. Little homies get “G Checked,” challenged by an older member on gang protocol.

The tattoos, hand signs, lingo and dress code all “serve to brand the gang, both within its membership and to rival gangs and the public,” the panel said.
By Deborah Elkins

Here’s a tip for male lawyers on the road:

So you packed those fancy shirts for your out-of-town hearing, but you forgot to throw in a pair of plastic collar stays to keep the tips of the collar from going airborne. Since you normally wear button-downs, packing collar stays just was not on your travel checklist.

What’s worse, the weather is hot and humid, so it takes all of five minutes out of your hotel room before the starch is melted away and your collar resembles the wings of a sea gull in flight.

What to do? There’s no way you’re going to face an unfamiliar judge looking like an unmade bed, but there’s no time to hunt down proper collar stays.

The solution is in your pocket - that plastic key card from the hotel. Find a pair of scissors and a private spot and carve yourself a pair of do-it-yourself collar stays. Problem solved.

Just remember to ask for a new key card to get back into your room when you return to the hotel.

-By Peter Vieth, who is sticking strictly to button-downs from now on

In late March, Norfolk U.S. District Judge Rebecca Beach Smith dismissed a builder’s suit seeking insurance coverage for its proactive efforts to remediate the noxious effects of Chinese drywall in homes it built.

Smith said that builder Dragas Management Corporation, who voluntarily fixed drywall-related problems in customers’ homes, was not entitled to reimbursement from its insurer because the builder was not faced with a “legal obligation” to pay “damages.”

Dragas’s amended claim passed muster with Smith on July 15. This time around, Dragas detailed the verbal and written demands of homeowners, many of whom had lawyers, and alleged specific threats of litigation. The threat alone did not make for a “legal obligation” to pay damages, Smith said, but Dragas cleared the hurdle that prompted the earlier dismissal.

The judge also said Dragas adequately alleged that the insurance company waived its “Voluntary Payment” provision and “No Action” clause, and allowed Dragas to pursue discovery on its bad faith claim.
By Deborah Elkins

Oh, those lists and rankings. They’re irresistible.

Today’s entry comes from Vault.com, which has just released its latest “Prestige” index of the “Top 100 Law Firms for 2011.”

According to Vault’s January-through-April survey of 15,000 law associates, New York law firms still have a lock on the top rankings, notwithstanding attrition in the associate ranks.

Two Richmond-based firms broke into the top 100, according to Vault. Hunton & Williams came in at Number 71, up three spots from last year. McGuireWoods LLP stayed steady at Number 82.

The reported “buzz” on H&W: “Diverse,” “great Southern firm,” “stuffy” and “big market firm in small towns.” The firm’s “downers” included “frantic deadlines,” a “secretive bonus structure” and “too much power in Richmond.”

McGuireWoods drew praise as a “Virginia powerhouse and friendly,” and “good firm, good people,” but also was dissed as “old school, boring” and “average, trying to be national.”

The survey highlights “the ascent of litigation-focused firms,” according to Vault’s overall analysis, with litigation boutiques competing with large full-service firms for top legal talent.
By Deborah Elkins

A three-judge disciplinary panel Monday found no evidence of improper witness coaching against York County Commonwealth’s Attorney Eileen Addison. After hearing the case presented by Virginia State Bar lawyers, the panel dismissed misconduct charges that arose from a 1996 capital murder case, reports the Daily Press.

The ruling ends what had been scheduled as a three-day hearing at the York County courthouse. A similar hearing had been scheduled in August for Addison’s former assistant, Cathy Krinick of Newport News. Addison and Krinick had been accused of coaching a co-defendant to present more credible testimony against Darryl Atkins, who was ultimately convicted of the robbery and murder of a serviceman.

The accusations against Addison and Krinick became a focal point for criminal defense lawyers who complained the VSB often overlooked complaints of prosecutorial misconduct.

By Peter Vieth

“Something that was lost has now been found,” said Henrico Circuit Judge Gary Hicks as he finalized the adoption of Nehemiah Christopher into Terrence and Bridget Allen’s family on July 16.

Upon entering the courtroom, no one could have guessed this little boy had ever been alone. But in August 2009 someone left him naked and abandoned on a front lawn in Henrico County. Nehemiah first came to the family as a foster child. “Nehemiah was meant for us,” said Bridget Allen.

Social workers and the Allens’ extended family and fellow church friends packed the courtroom. The family’s many supporters believed that Nehemiah finding his way into the Allen household was no coincidence, but divine providence at work.

As Nehemiah officially took the “Allen family DNA,” Hicks applauded the parents for their courage and love for Nehemiah. Hicks told an inspirational story about a little boy throwing star fish back into the sea. Ending with a moral of no matter how long the task, no matter how many other star fish there are, he told the Allens, “you made a difference with that one.”

Throughout the ceremony Nehemiah was all smiles. Jane Crawley, Director of Social Services for Henrico County, and Martin Brown, Commissioner of Social Services for the State of Virginia, also came to witness this very special occasion.
By Kelly Dohnal

A spokeswoman from the Grand Canyon National Park last night confirmed that the body retrieved on Monday has been positively identified as that of Kirby Porter, 50, of Mechanicsville.

She reiterated that Sunday night the park’s communications center received a report of a man seen exiting a car at Moran Point, climbing over a retaining wall and lying down on the edge of the canyon rim. When park rangers arrived at the scene, they found the car, but no sign of the man witnesses had described.

A body was retrieved on Monday and transferred to the Coconino County Medical Examiner, who waited until receiving medical records from Porter’s family to make the positive ID. The cause of death has been determined to be injuries sustained in a fall. The manner of death cannot be determined at this time, the examiner said.

“Michael Scott” is vexatious and frivolous, as fans of the TV show “The Office” know. Now there is an official court document attesting to that fact.

Or at least attesting to the fact that a Norfolk Circuit Court has found one “Michael A. Scott” to be “vexatious.” In 2008, the court levied $40,000 in sanctions against Scott for violating a pre-filing injunction.

Last September, Norfolk Circuit Judge Everett Martin used one of Scott’s pro se filings to develop “indicia of vexatiousness” for knowing when to boot a frequent-filer plaintiff who has submitted a pro se “blunderbuss” pleading naming a host of defendants and legal claims.

Guess who satisfies the prescribed indicia? Michael A. Scott. On Tuesday, the Norfolk judge ticked off the elements of the test and denied Scott leave to file his latest “smorgasbord” of legal claims.
By Deborah Elkins

It’s Christmas-in-July in Loudoun County where the supervisors again are planning to grab the third-rail issue of courthouse holiday displays.

Before the leaders vote on public displays at the courthouse, however, Chief Circuit Judge Thomas Horne wants to let local judges speak up on the issue. As reported by the Loudoun Times, Horne has written to the supervisors chair to ask for a postponement of Tuesday’s scheduled discussion of the court display policy. Horne said he will be out of town on Tuesday.

The current policy allows up to ten unattended displays on the courthouse lawn upon application on a first-come, first-considered basis. The policy resulted in some “unpopular” displays, however, and the supervisors are considering revival of an outright ban on courthouse displays.

By Peter Vieth

Two Northern Virginia businessmen and their fledgling solar energy business have filed a defamation lawsuit against the town of Front Royal and three of its leaders alleging they were defamed by allegations of bribery.

The lawsuit by Donald Poe and Gregory Horton seeks $30 million from the town and three members of the town council. Poe and Horton say the council members made “baseless allegations” that the businessmen committed a crime and refused to retract those statements when requested. The suit also lists three “Doe” defendants. “There could be other defendants named,” said Manassas lawyer David Silek, counsel for the plaintiffs.

The flap arose over bidding for a solar energy project and escalated after release of an April legal memorandum, prepared for the town by Troutman Sanders, addressing the issue of alleged “secret incentives.”

The suit was filed in Warren County Circuit Court by the Manassas firm of Ours and Silek.

By Peter Vieth

Some lawyers say the clerk’s method of filing documents at Charlottesville Circuit Court makes searches difficult.

Clerk Paul Garrett apparently has his office index matters beginning with the phrase “In re” if that’s how the document is titled, reports The Daily Progress. Including the “In re” prefix requires searchers to add that phrase to find those cases on the court’s new public access system, the paper reports.

Searching for the name alone fails to produce the information sought, according to the report. Local lawyers apparently have concerns about the indexing method.

By Peter Vieth

In the memorable 1998 flick, “The Parent Trap,” Lindsay Lohan starred as an innocent 12-year-old who embarks on a plot to make her parents fall in love again. However, Lindsay Lohan has greatly changed since 1998. Along with a new sense of fashion, ongoing partying, and a long rap sheet, the actress has found herself in a great deal of new trouble for skipping out on court dates and for violating probation…twice. Lohan, who once had a promising career, shortly will be serving 90 days in jail for not making a court date.

Lohan did not go down quietly. Instead, she went on a legal tweeting rampage, citing a number of sources, including the U.N. Universal Declaration on Human Rights and an article about a woman sentenced to death by stoning in Iran.

The actress also tweeted, “November 1 marked the 15th anniversary of the U.S. Sentencing Guidelines. But there were no celebrations, parades, or other festivities in honor of this punishment scheme created by Congress and the U.S. Sentencing Commission. Instead, the day passed like most others during the last 15 years: Scores of federal defendants sentenced under a constitutionally perverted system that saps moral judgment through its mechanical rules.” She included reference to a 2002 article by Erik Luna, a professor at Washington & Lee University.

He discovered the Lohan tweet after his eight-year-old article started getting new hits. But as he told The News Leader in Staunton, the paper is outdated, since significant changes have occurred in the federal law since 2002. “More fundamentally, Ms. Lohan’s case is in the California state system, and my critique of federal sentencing has, at best, some oblique relevance to her plight,” he said.

- Kelly Dohnal

Lawyers for Salem’s Lewis-Gale Medical Center hope to persuade the Supreme Court of Virginia they were unfairly surprised by a judge’s last-minute decision to allow emotional distress damages in a lawsuit filed by a former emergency physician. The doctor won a $900,000 verdict claiming the hospital got her fired from her medical practice group for supporting disgruntled nurses.

Arguments at a writ panel hearing this week focused on the decision by Roanoke Circuit Judge Jonathan Apgar to reverse an earlier ruling and allow a jury instruction on mental damages for the doctor’s claim of tortious interference with contract. Apgar’s ruling reportedly came after the close of evidence in the case.

At the writ panel hearing, Justice Donald Lemons had several questions about the case record, including an inquiry about defense motions for a mistrial or continuance. Hospital lawyer Frank Friedman said the timing of the judge’s ruling put the defense in a bind. “We were really blindsided, the way it turned out,” he said.

Decisions whether to grant appeals are generally made within a few days to a few weeks after oral argument.

By Peter Vieth

A couple of new developments on the Melendez-Diaz front have appeared this week.

A Norfolk Circuit Court has ruled on defense lawyer Andrew Sacks’ Melendez-Diaz challenge to Va. Code § 19.2-187.02, the Virginia statute that lets in a hospital blood alcohol screen that showed a driver’s .13 BAC after a two-fatality auto accident. Sacks is defending the driver against involuntary manslaugter charges.

And in Charlottesville, a circuit court denies a claim that using DMV records to prove a driver was an habitual offender violates a defendant’s Sixth Amendment rights under Melendez-Diaz. The case is Commonwealth v. Carter (VLW 010-8-126).
By Deborah Elkins

A light-duty job offered to a woman used to heavy lifting turned out to be a no-duty job she was entitled to quit, the Virginia Court of Appeals ruled last month.

Melissa Ann Carpenter said she was “driven crazy” by having nothing to do in the clerical position involving data entry and filing. Carpenter had worked for Rochester Cable as a ferring operator before a shoulder injury required surgery.

Although the company said her job was supposed to last six to 12 week, she completed the data entry in less than a week, the filing within two weeks. She “begged everybody” for additional work, and told the employer she did not expect to “go in there and do nothing” and “to be driven crazy.” Her husband said she came home crying from being “stuck in a room begging for work.”

Carpenter quit after seven weeks. In an unpublished opinion written by Senior Judge Sam W. Coleman, the appellate panel upheld her continued workers’ comp benefits, saying she justifiably refused light-duty work.
By Deborah Elkins

Appellate lawyers familiar with the small green, yellow, and red argument timing lights used by appeals courts are confronted with a much different system when they make their cases to the Supreme Court of Virginia’s traveling writ panels.

As lawyers assembled today in a small courtroom in Salem for writ hearings, many were surprised to see the bench dominated by a bright red computer monitor flashing the ominous words: “Argument Time Expired.”

In the absence of any justices sitting on the dais, it appeared as if the real authority in the courtroom was an impersonal computer with a menacing screen. “It’s quite imposing,” said veteran appellate attorney Frank Friedman as he waited for the first case to be called.

The computer monitor is part of the system the justices use when they go “on the road” for writ panel hearings outside of Richmond. Once the arguments began, the screen appeared less intrusive. The monitor was placed to the speaker’s right, allowing eye contact with the justices. The background changed from crimson to black, with green numbers counting down the time from ten minutes. With three minutes left, the numbers change to yellow.

Only if your time runs out does the ugly red square again make an appearance, flashing the obvious “time expired” message. It’s hard to miss, but - when it appeared in one argument - presiding Justice Lawrence Koontz didn’t wait for counsel to notice. Within a second or two, he thanked the lawyer at the lectern and sent him on his way.

By Peter Vieth

UPDATE: 2010/07/14, 10:40 a.m.

A message on the office phone of Kirby H. Porter says that he has died. The Richmond Times-Dispatch has details, including allegations in divorce proceedings of marital and financial difficulties.

A body found yesterday 250 feet below the South Rim of the Grand Canyon may be that of former Hanover County Commonwealth’s Attorney Kirby H. Porter.

According to a news release from the National Park Service, the Grand Canyon Regional Communications Center received a report that a man had left his car at Moran Point about 9:15 p.m. Sunday, climbed over a retaining wall and lay on the edge of the canyon.

Park rangers responded and found the car but no trace of the man. Rangers began a search yesterday morning, and rangers in the park’s helicopter spotted the body. The body was removed by a long line extended from the helicopter and taken to the Coconino County medical examiner’s office.

A spokeswoman for the office in Flagstaff, Ariz., said an autopsy is being conducted to positively identify the body.

Porter, about 50, served two terms as Hanover commonwealth’s attorney before he lost to Trip Chalkley in November 2007. Porter has had a solo practice in Mechanicsville since leaving office.

A spokesman for the Hanover sheriff’s office said park authorities asked the office yesterday to contact Porter’s family for assistance in the investigation of the death in the Grand Canyon.
By Alan Cooper

The Supreme Court of Virginia is taking aim at the issue of whether a robber can be convicted of use of a firearm without evidence of a real gun.

In March, the Court of Appeals overruled a 1995 decision holding that an object the victim reasonably believed to be a firearm could never constitute a firearm under the criminal code unless it was, in fact, a firearm. Convictions were affirmed in cases where the defendants used, respectively, a toy gun and a non-working “John Wayne Replica” .45 caliber handgun. In both cases, victims believed the defendants had guns. The full court, with Judge Larry Elder dissenting, invoked the purposes of the firearm statute in preventing actual harm and in discouraging criminal conduct that creates fear of harm.

This month, the Supreme Court granted appeals in those two cases.

The statute itself proscribes the use of “any pistol, shotgun, rifle, or other firearm,” without further definition.

By Peter Vieth

The Pittsburgh-based firm of Eckert Seamans Cherin & Mellott LLC has attracted another prominent partner from the Richmond office of LeClairRyan.

Brian L. Buniva joined Eckert Seamans environmental and litigations practices yesterday.

Buniva is a member of Virginia State Bar Council and has chaired its administrative and environmental law sections.

Eckert Seamans opened a Richmond office in October after taking four partners in Washington and Richmond firm Troutman Sanders LLP and in January absorbed three lawyers and three non-lawyer lobbyists with administrative and regulatory backgrounds from LeClairRyan.

Eckert Seamans has about 325 lawyers in 11 offices, most of them in the Mid-Atlantic states. Richmond is its southernmost outpost.

By Alan Cooper

The judges of the 23rd Judicial Circuit of Virginia unanimously elected William D. Broadhurst as chief judge. His two-year term began July 1.

Judge Broadhurst succeeds Charles N. Dorsey as chief judge of the circuit, which includes the City of Roanoke, the City of Salem and Roanoke County.

Kathryn Steenburgh and Glen Weaver bought a house together in 2000. Steenburgh made a down payment of $42,000, and Weaver paid the mortgage and casualty insurance. The couple had a child together.

But 10 years later, the thrill was gone. Steenburgh petitioned a Hanover Circuit Court for partition of the real estate. Given that the home was a single-family residence in a subdivision, partition would not be pretty. Each party offered to buy out the other. The judge had to weigh the options.

Hanover Circuit Judge John Richard Alderman said the man had to go. He was persuaded by Steenburgh’s argument that she was the one who “made the house a home.” He ordered Steenburgh to pay Weaver $24,993 for his share in the property, to cover his payment on principal and his share of the insurance cost. The case is Steenburgh v. Weaver (VLW 010-8-124).

By Deborah Elkins

A Fairfax Circuit judge has ordered a Northern Virginia lawyer and his client to pay the attorneys’ fees and costs of two defendants they sued in a residential real estate tangle. Total price tag: About $272,000.

Judge Jonathan C. Thacher called the litigation “vindictive” and chided the lawyer and client for taking a claim to trial when it had no chance of success. The plaintiff nonsuited as the judge was considering a motion to strike; he took that motion under advisement while considering a second motion on sanctions.

He granted the defendants the lion’s share of the attorney’s fee they sought. In doing so, the judge found that the practice of “block billing” was reasonable.

Subscribers to Virginia Lawyers Weekly can read the full story here.

A drywall supplier and contractor have filed an interlocutory appeal of a Norfolk trial judge’s order to consolidate cases alleging property damage and personal injury from defective Chinese drywall.

The petition filed yesterday with the Supreme Court of Virginia contends that consolidation of the cases is inappropriate because the individual claims vary and involve at least half a dozen defendants, some with cross claims against each other.

Norfolk Circuit Judge Mary Jane Hall granted the consolidation request of lead plaintiffs’ attorney Richard J. Serpe of Norfolk after Serpe assured her that the focus of the case would be property damage rather than personal injury.

Our earlier post with a link to Hall’s opinion is here.

Midlothian attorneys Mark C. Nanavati and Kenneth F. Hardt represent the appellants, Venture Supply Inc. and Porter-Blaine Corp.

By Alan Cooper

U.S. District Judge Henry Hudson promised a decision within 30 days on whether Virginia has standing to challenge the federal health care law.

The judge heard about two hours of arguments today on the federal government’s motion to dismiss the lawsuit filed by Virginia Attorney General Ken Cuccinelli.

“From time to time it’s up to the states to remind the federal government of its constitutional boundaries and to push back when it oversteps its authority,” Cuccinelli said in a news conference following the hearing.

By Peter Vieth

Leroy R. Hassell Jr. - son of Virginia Chief Justice Leroy Rountree Hassell Sr. - has been charged with armed robbery in connection with an alleged home invasion in Henrico County on Monday.

The Richmond Times-Dispatch reports Hassell, 23, was arrested early Thursday and is being held without bond pending a hearing on Friday. He also faces a charge of use of a firearm in commission of a felony.

In 2007, the younger Hassell was sentenced to 16 months in jail for a variety of offenses, including embezzlement, unlawful entry and probation violation.

By Peter Vieth

The en banc Court of Appeals has rejected a writ of actual innocence for Dustin Turner, the former Navy Seal trainee who has been serving time for a murder he says he did not commit.

Turner was convicted in 1996 of abduction with intent to defile and murder and sentenced to 82 years in prison.

Last August, a panel of that court split two-to-one in granting a writ of actual innocence, the first time a Virginia appellate court awarded the writ in a contested case.

Initially, Turner’s codefendant and fellow Navy Seal trainee Billy Joe Brown said Turner had killed Jennifer L. Evans, after the pair had met her in a Virginia Beach nightclub. But in 2002, Brown recanted and backed Turner’s testimony that Brown acted alone in killing Evans.

This morning, a majority of the en banc Court of Appeals denied Turner’s petition under Va. Code § 19.2-327.10.

Brown’s changed story was credible, the en banc majority said, but ultimately it was not enough to grant the writ.

“The relevant question is not whether Brown acted alone in killing Evans, but whether Turner abducted her with intent to defile her,” the majority said.

The en banc court said a rational fact finder could conclude Turner used deception to abduct Evans with intent to have sexual intercourse against her will, and the abduction ended with her murder.

Citing evidence such as Turner’s comment to another Navy Seal that he and Brown were planning a “threesome” with Evans, the majority said Brown’s confession did not change the evidence of about Turner’s intent when he left the club with Evans.

The Court of Appeals dismissed Turner’s petition.

Code § 19.2-327.10 provides that either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia.
By Deborah Elkins

Virginia’s two U.S. Senators have recommended U.S. Magistrate Judge Mike Urbanski of Roanoke and federal public defender Arenda Wright Allen of Norfolk for two vacant federal district judgeships in Virginia.

Urbanski has served as a magistrate judge in the Western District since 2003. He is being advanced as a successor to District Judge Norman Moon of Lynchburg, who will take senior status next month.

Wright Allen has experience as a federal prosecutor, public defender, and Navy JAG officer. She is recommended for the seat of District Judge Jerome Friedman of Norfolk, who takes senior status in November.

By Peter Vieth

Andrew Harding of Harrisonburg has been elected to the Virginia State Bar Council representing the 26th judicial circuit. He replaces George Shanks who now is VSB president-elect.

Harding outpolled Carter Foulds of Winchester 101-77 in a special election.

By Peter Vieth

For the first time in U.S. history, vampires have been allowed into the halls of justice. The fever for vampires – who seem to have taken over our popular culture - has invaded a federal courtroom. Vampires tend to be a good looking group of people, with a tendency to be overly dramatic, and a desire to suck the blood of sleeping persons at night. Teenagers, for reasons no one can even begin to explain, can’t get enough. So a group of educators struck gold with a plan to promote education about the U.S. Constitution through the use of social media and, yes, vampires.

U.S. District Judge Royce Lamberth and the Close Up Foundation hosted the program in Washington D.C. during the past school year. More than 500 teachers from across the nation participated in eight programs during the 2009-2010 academic year, according to a press release from the U.S. Courts Administration Office. The series concluded last month.

The program generated a fictional sequence of events that started with “vampire” students (played by high school government teachers) posting vampire poems and other various comments on the school Facebook page. The school then removed the comments, thus creating a case about First Amendment rights. In the eight presentations, teachers played judges, attorneys, and jurors in order to demonstrate court proceedings and how far the First Amendment protects citizens.

Parents now may rest easy knowing that an obsession with vampires can at least to provide their children with some substantive education about the First Amendment. This thought may help parents sleep at night, while their teenagers stay awake waiting, albeit in vain, for Robert Pattinson (the lead vampire in the “Twilight” saga) to bite them.

- Kelly Dohnal

The Supreme Court of Virginia has granted a writ in a wrongful death drowning case where a judge held the claims against the city of Lexington fell short of gross negligence.

The case arose from the 2006 drowning death of a 16-year-old boy below a dam on the Maury River in a city park. Circuit Judge Michael Irvine dismissed the case on sovereign immunity grounds after a five-day trial ended with a deadlocked jury last year.

By Peter Vieth