Friday, September 12, 2014
The Virginia Attorney General's office has agreed to supply me with all documents given to the Virginia Supreme Court in connection who was in charge of the investigation on the morning of April 6, 2007. The documents were given to the Virginia Supreme Court as evidence in their hearing/review of the state's appeal of the jury verdict in the Pryde-Peterson lawsuit holding Virginia Tech liable.
I expect those documents to show one of two things: first, whether or not the Attorney General's office was truthful, or two, did the Supreme Court not tell the truth about who was in charge. Either one would be very disturbing for the Virginia legal system.
It will be a few weeks before I have the documents.
Wednesday, September 10, 2014
The Virginia Supreme Court’s decision to throw out the jury verdict holding Virginia Tech liable for failing to warn the campus on April 16, 2007 following the double homicide at West Ambler Johnston Hall is so disturbing that I have asked the Court for the document(s) the used to base their decision on. Here is my letter to the Court:
August 26, 2014
The Honorable Cleo E. Powell
Supreme Court of Virginia
P.O. Box 1315
FREEDOM OF INFORMATION REQUEST
I am requesting documents supplied to the Virginia Supreme Court by the office of then-Attorney General Ken Cuccinelli as well as the Hall & Sethi law firm in connection with the Court’s decision to overturn the jury verdict in the Pryde and Peterson lawsuit against Virginia Tech.
It is my understanding that the Supreme Court justices may only examine the documents given to them. I am only interested in the documents stating who was in charge of the investigation following the double homicide at Virginia Tech’s West Ambler Johnston Hall.
On page two, first paragraph, line eight of your decision you write, “…the Blacksburg Police Department led the investigation.”
When I queried Blacksburg Police Chief Kimberley S. Crannis she responded, “On that date [April 16, 2007], the Blacksburg Police Department responded to a request from the Virginia Tech Police Department, pursuant to a Mutual Aid Agreement between the Town and Virginia Tech. That agreement provided that ‘all law enforcement personnel responding to an emergency request as described in this agreement will report to an take direction from the Chief of Police of the requesting agency.’” I have enclosed that agreement as well as Chief Crannis’s response to me.
According to Chief Crannis and the legal agreement between the town and the university, Virginia Tech Chief Wendell Flinchum was in charge of the investigation on the morning of April 16, 2007.
In your decision, you state the court based its decision on facts. Therefore, I request all documents given to the Court stating who was in charge of the investigation of the double homicide at West Ambler Johnston Hall on the morning of April 16, 2007.
Because the decision was unanimous, I am copying all the justices on this letter. I am also making a similar request from the Virginia Attorney General’s office and the Hall & Sethi law firm.
Thank you in advance for helping me with my research,
cc: The Honorable Cynthia D. Kinser
Chief Justice, Supreme Court of Virginia
The Honorable Donald W. Lemons
Justice, Supreme Court of Virginia
The Honorable S. Bernard Goodwyn
Justice, Supreme Court of Virginia
The Honorable LeRoy F. Millette, Jr.
Justice, Supreme Court of Virginia
The Honorable Charles S. Russell
Senior Justice, Supreme Court of Virginia
The Honorable Elizabeth B. Lacy
Senior Justice, Supreme Court of Virginia
Mark R. Herring
Attorney General of Virginia
Robert T. Hall
Hall & Sethi, PLC
Monday, September 8, 2014
The Virginia Supreme Court puts the care and feeding of businesses and interest groups far ahead of individual rights in almost all of its decisions—even those where people have been sexually assaulted or killed. (See the decisions they made involving Rockingham Publications and the Virginia Tech rampage.)
The Court relies on a very narrow interpretation of the doctrine of foreseeability—specifically, does a business or institution have a duty to warn. In laymen’s terms, the Virginia Court consistently rules against individuals saying, in effect, that no one can be responsible for someone else’s actions except in rare, extreme cases.
But not all state supreme courts share the Virginia court’s myopic view.
Here is a definition of foreseeability used by most other states’ Supreme Courts:
“Foreseeability is a flexible concept which varies with the circumstances of each case. Where the degree of result or harm is great, but preventing it not difficult, a relative low degree of foreseeability is required... Thus foreseeability is not to be measured by just what is more probable than not, but also includes whatever result is likely enough in the setting of modern life that a reasonable prudent person would take such into account in guiding reasonable conduct... We only engage in balancing of the harm in those rare situations when we are called upon to extend a duty beyond the scope previously imposed or when a duty has not been previously recognized.”
The New York Supreme Court has ruled that the fact that a defendant could not anticipate the precise manner of an accident or incident, or the exact extent of injuries does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable. The New York court hit the nail on the head. In dealing with an unstable person such as Cho, or any murderer, the exact nature of the violent behavior or when or how it will occur cannot be predicted. But that he or she will be violent is predictable and preventive measures, including warnings and lockdowns, can be taken.
Sunday, September 7, 2014
This is the second in a series of blogs looking at the Virginia Supreme Court.
The Virginia Supreme Court’s decision to throw out the jury verdict in the Pryde and Peterson lawsuit against Virginia Tech is just another in a series of examples of the Court’s willingness to ride roughshod over individual’s rights and safety.
In the Virginia Tech case, the court ignored possible perjury on the part of a key witness, got a critical fact wrong, ignored facts that favor the plaintiffs, and appears to have kowtowed to the most powerful economic engine in southwestern Virginia—Virginia Tech.
Let’s take a quick look at the judicial system in Virginia. Sadly, individuals do not fare well against businesses or powerful interest groups.
In Virginia, the judges are elected by the legislature. At present, the Virginia Supreme Court is made up of seven justices elected by a majority of both houses of the General Assembly. To be eligible for election, a candidate must be a resident of Virginia and must have been a member of the Virginia Bar for at least five years. If the General Assembly elects these justices, who elects the General Assembly? Well, large business contributions bankroll most politicians’ campaigns. Newspaper editorials can make or break a candidate’s chances of being elected to the General Assembly. The potential for conflict of interest is readily apparent.
In my research, I came across a ruling that was particularly disturbing. In May 1988, a 13-year-old boy and his parents agreed with the Rockingham Publishing Company that the boy would deliver the company’s newspapers in Harrisonburg, Virginia. Due to the boy’s age, under the Virginia child labor laws, Rockingham could permit the boy and other carriers of the same age only to distribute its “newspapers on regularly established routes between the hours of four o’clock ante meridian (in the morning) and seven o’clock post meridian (in the evening), excluding the time public schools are actually in session.” A year and half after the then 13 year-old boy took over the route; he was sexually assaulted one morning between six and six-thirty while delivering papers.
There had been three previous pre-dawn assaults of a sexual nature upon other young Rockingham carriers while they were delivering their newspapers. While two of the assaults were more than two years before the one in this legal action, one occurred only four months prior to the case in question. Furthermore, all three of the earlier victims gave a similar description of the young man who assaulted them.
In legal terms, the issue was whether Rockingham Publishing had a special relationship with the plaintiff that would have required such a warning, and whether the publishing company had enough prior evidence of sexual assaults that it owed a duty to warn A.H. (the paperboy) and his parents. The Virginia Supreme Court ruled that “Rockingham owed the same degree of care to A.H. that “it would have owed if A.H. had been employed by Rockingham.” “And, given the fact that Rockingham assigned a fixed route and time for A.H. to distribute its newspapers, we conclude that the necessary special relationship existed between Rockingham and A.H. with regard to the conduct of third persons.”
Having said that, the Supreme Court then raised a technicality that puts so many Virginians in a losing position when coming up against private businesses. “Even though the necessary special relationship is established with regard to a defendant’s potential duty to protect or warn a plaintiff against the criminal conduct of a third party, that duty, as in other cases of negligence cases, is not without limitations.” “A court must still determine whether the danger of a plaintiff’s injury from such conduct was known to the defendant or was reasonably foreseeable.”
Once you state that there are limitations, all you have to do to protect private businesses is set the bar so high that it allows you to reject evidence showing the attack was “reasonably foreseeable.” Armed with this technicality, the court was then in position to rule as follows: “Despite the special relationship, and even though the plaintiff’s age may have imposed a greater degree of care upon Rockingham than it would have owed an adult in the plaintiff’s circumstances, Rockingham had no duty to warn or protect him against harm unless the danger of an assault on the plaintiff was known or reasonably foreseeable to Rockingham. Since Rockingham did not know that the plaintiff was in danger of being assaulted on that particular paper route, we consider whether the evidence is sufficient to raise to a jury’s attention the question of whether an assault on him was reasonably foreseeable.”
The court, then, decided against the plaintiff’s claim that his age and relationship to Rockingham created an additional duty of disclosure, “because the plaintiff has not met his threshold obligation of introducing evidence sufficient to (have a jury trial)...on the question of whether the assault was reasonably foreseeable.”
To the plaintiff’s charge that Rockingham gave “inadequate” and “deceptive” warnings regarding the risks of assault upon its young carriers while on their early morning deliveries, the defense argued that this charge did not meet the threshold to warrant a more complete warning. The court said that even if the publishing firm’s safety literature, video, and safety whistles were inadequate, that “did not rise to a duty to give a more complete warning.”
There is something wrong with the court’s logic. If Rockingham did not feel it had a responsibility, then why did it spend time, money, and effort to have safety training for its paperboys in the first place?
Then the court said that even if Rockingham’s safety materials were deceptive (a matter they did not decide) the court “did not think that a duty was created in this case because neither the plaintiff nor his parent had seen or read any of the safety literature.”
Two Virginia Supreme Court Justices—Justice Kinser and Justice Lacey—concurred in part with the majority ruling and dissented in part with the majority. The majority ruled, that because the three previous attacks on paperboys had occurred in different locations, these attacks could not be presented as evidence. The dissenting judges eloquently argued the opposite: The random location of the assaults makes an attack on any given paper route, more rather than less likely. “In other words, if the prior assaults had occurred in only one area of the city or a particular route, then Rockingham would be justified in arguing that it could not have foreseen that A.H.’s route would have been the site of an assault.” The dissenting judges also pointed out that the “fact that the assaults occurred in the same type of location, a paper route...(rendered) an attack on A.H.’s route foreseeable.”
Other points raised in the dissenting opinion were modus operandi of the prior assaults. This is a significant factor in whether or not the attack was foreseeable. “...all prior attacks occurred in the pre-dawn hours while the three victims were delivering Rockingham’s papers.... The victims also gave strikingly similar descriptions of their assailant. All the descriptions included the same attributes as the age, gender, race, and physique. In sum, the time and method of the attacks, the sexual nature of the assaults, and the similarity in the victims’ descriptions of the assailant are fact sufficient to raise a jury question.”
“Finally,” the dissenting opinion said, “even though the first two assaults occurred four-and-a-half years before the assault on A.H., Rockingham knew that the assailant in the first attacks was never apprehended. Thus, when the third assault occurred four months before the assault on A.H., and the victim provided a description of the assailant remarkably similar to those given by the first two victims, it was then reasonably foreseeable that the danger to Rockingham’s carriers still existed.”
“For these reasons, I,” dissenting Judge Kinser wrote, “would reverse the trial court’s judgment sustaining the motions to strike the evidence and remand the case for a new trial.”
Editorial endorsements of papers such as those published by the Rockingham Publishing Company are keys to the election of the Virginia General Assembly, and the Assembly members elect the Supreme Court Judges. There is no evidence of impropriety in the case of A.H. vs. Rockingham Publishing Company, and I am not trying to accuse anyone of anything. But the Supreme Court of Virginia would have served the state’s citizens by bending over backward to ensure that a jury heard the case.
* * *
As a manager in the government I was trained on my responsibilities—professional and legal. If one of my subordinates was sexually harassed, I could be held responsible even if I did not know about it—because I should have known about it. If the law takes this firm a stand on an off-color joke or remark that can be interpreted as “harassment,” why is Virginia law so lax on workplace violence or murder?
In other words, in the Old Dominion if there is a record of a sexual assault or threatening behavior (as was the case with Rockingham Publishing and Virginia Tech respectively), you have “no need to know, no need to act.” You have the right to look the other way. And, even in cases of sexual assault against a minor or mass murder, you are not accountable for not warning. But not when it comes to off color jokes or sexual harassment, you must act.
There is something I am missing in this logic—or maybe I am just naïve.
Wednesday, September 3, 2014
The Virginia Supreme Court’s decision late last year to overturn a jury verdict holding Virginia Tech liable for not warning the campus on April 16, 2007 following a double homicide, is disturbing on numerous levels.
First, despite the Court’s claim that it based its decision on facts, it gets one of the most critical facts wrong—who was in charge of the investigation. It was not the Blacksburg police as Justice Cleo E. Powell wrote; it was the Virginia Tech Police Department. Seven Justices unanimously agreed with the decision; seven justices got that wrong. An error of this magnitude raises serious questions about the Court’s impartiality, thoroughness, and integrity.
Second, because Justices are only allowed to look at the evidence in front of them, the factual error raises the possibility that someone lied to the court. To lie to a court is a crime.
Third, the Virginia Supreme Court has a well-documented history of arguing that there are practically no circumstances under which anyone (or business) can be held responsible for someone’ s actions. The factual error raises the remote possibility that the fix was in from the outset. Identifying the Blacksburg Police as being in charge, takes Virginia Tech Police Chief Wendell Flinchum off the hook.
Fourth, sloppy examinations of the arguments presented by the Attorney General’s office and the Hall & Sethi law firm may be the cause of the error—but I doubt that. All seven justices agreed with the error-flawed decision. Moreover, Justice Cleo E. Powell, who wrote the decision, is a graduate of the University of Virginia Law School (one of the best law schools in the country). She was trained to be meticulous. Still…..it cannot be ruled out.
Fifth, (in a general sense) the Court’s conservative bias may have dictated the decision and its willingness to pick or play loose and free with facts supporting the defendants and ignore facts in support of the plaintiffs.
The above needs to resolved and there needs to be a public explanation of the Court’s serious factual error. If someone lied, he or she needs to be prosecuted; if the error was an honest mistake, the court needs to own up to it.
As long as the decision remains uncorrected, it seriously undermines the Court’s integrity with alarming implications for the whole Virginia judicial system. The standards for the Supreme Court must be above reproach.
The evidence is there; the facts are there. Tech’s failure to alert the campus for nearly two and half hours, violated the school’s own written security procedures as well as the standards of crime scene investigation. As a result, 30 innocent students and faculty members in Norris Hall were doomed.
If the decision stands, the belief by most Virginians in a Supreme Court rendering decisions on facts and evidence has been damaged beyond repair. If the decision stands, Virginia’s Supreme Court has been exposed as being ruled by ideological biases and not facts. The net result will have been a gross miscarriage of justice.
If the Supreme Court corrects the mistake, there is yet another serious problem that needs to be addressed in the Court’s ruling.
According to one Virginia lawyer who looked at the Supreme Court’s decision, the case rested on the words “probable” or “possible.” He argued that the Supreme Court decided that further violence was “possible,” but not “probable.”
But, Virginia Tech had warned the campus when mold was found in some buildings, defining the situation as a “probable” danger; the school warned when there was an outbreak of the flu defining it a “probable” threat: and most damaging, the school warned and locked down some eight months earlier when a prisoner broke out of jail in Blacksburg, killed two people and there was no evidence the killer was even near the campus. This later warning and lockdown set the standard; a standard the school violated and the Supreme Court chose to ignore.
Finally, the school’s own written emergency policy called for a lockdown and warning. And Tech ignored its own rules.
The following is from Mother Jones:
Idaho Professor Accidentally Shoots Himself While Teaching Class
If you answered that the way the NRA does, then maybe consider what just happened at Idaho State University on Tuesday afternoon: A professor with a concealed carry permit was wounded when the gun he had in his pocket accidentally went off. According to local news outlet KIDK, the professor (who hasn't been identified at this point) was in the middle of teaching class when he literally shot himself in the foot:
Around 4 p.m. Tuesday, Public Safety received a call about an accidental discharge of a concealed weapon in the Physical Science building. A student said the gun went off in the middle of the class.Police said the small-caliber handgun was in the professor's pants pocket and was not displayed at any time. They said the professor was able to leave of his own accord. He was treated and released from the hospital.
In March, Idaho Gov. Butch Otter signed a bill into law allowing permit holders to bring their guns onto public college and university campuses, despite polls showingoverwhelming opposition from students and education leaders in the state. As theIdaho Statesman noted at the time, "Aside from perhaps agriculture, the NRA is the most powerful interest group in the Idaho Republican Party."
Read more here: http://www.idahostatesman.com/2014/03/12/3076771_otter-signs-campus-guns-bill-into.html?rh=1#storylink=cpy