Friday, December 13, 2013


Patricia L. Harrington, Clerk of Court
Virginia Supreme Court
P.O. Box 1315
100 North Ninth Street, 5th Floor
Richmond, Virginia 23219-1315

            Ref: Freedom of Information Request

Ms. Harrington—

With reference to Judge Cleo E. Powell’s opinion issued on October 31, 2013 reversing the jury findings of the Circuit Court of Montgomery County, Virginia that Virginia Tech had a duty to warn the staff, faculty, and students on April 16, 2007 following the double homicide at West Ambler Johnston Hall, I would like to clear up what appears to be a factual error. On page 2 of Judge Powell’s decision she writes:

            “Although officers from the Virginia Tech Police Department were the first on scene, the Blacksburg Police department led the investigation.”

According to The Governor’s Review Panel Report (the final version known as The Addendum), Virginia Tech Police Chief Wendell Flinchum was in charge and asked the Blacksburg Police Department for assistance in his investigation several times.

           1.   “7:51 a.m.  Chief Flinchum contacts the Blacksburg Police Department (BPD) and requests a BPD evidence technician and BPD detective to assist with the investigation.”

           2.   “8:11 a.m.  BPD Chief Kim Crannis arrives on the scene.”

           3.   “8:13 a.m.  Chief Flinchum requests additional VTPD and BPD officials to assist with securing WAJ entrances and the investigation. He also orders recall of all off-shift personnel.”

            4.   “8:15 a.m.  Chief Flinchum requests the VTPD Emergency Response Tea (ERT) to respond to the scene and then to stage in Blacksburg in the event an arrest is needed or a search warrant is to be

I have found no reference in The Addendum to Blacksburg Police Chief Crannis being put in charge of the investigation.

According to the Incident Command System, a part of FEMA, “a formal transfer of command at an incident always requires a transfer of command briefing for the incoming Incident Commander.”

Would you send me the documents or documentation proving that such a change of command took place so I can correct my research and writing? Specifically, I need to know at what point in time the command passed from Chief Flinchum to Chief Crannis. If you cannot send me the documents, would you tell me where Judge Powell’s assertion came from so I can track down the source?

Thanking you in advance—

                                                                                    Yours sincerely,

                                                                                    David Cariens

Friday, December 6, 2013


Richmond Times-Dispatch
December 2, 2013


The tragedy that struck the Creigh Deeds family on November 19th is, in part, the result of failed Virginia policy toward mental health. Both sides of the aisle are to blame.
            Following the Virginia Tech massacre, state officials promised more money and more emphasis on mental health. They kept their promise—for one year. Virginia now spends less on mental health than it did on April 16, 2007. Governor McDonnell’s policy of privatizing the state’s mental health care is an attack on the most vulnerable segment of society, the portion of the population least able to defend themselves—the mentally ill.
            Privatization is not advocated in order to improve health care. It is pursued to curry favor with the far right wing of the political spectrum who want to minimize government no matter what the cost—in this case, a human life.
            Young Austin Deeds was a victim of political machinations in Richmond. Politicians who have backed cuts in mental health treatment and the privatization of the state’s mental health care share part of the blame for the calamity that struck the Deeds family.

David Cariens

Wednesday, November 27, 2013


The parents of Julia Pryde and Erin Peterson say the Supreme Court reinterpreted the jury’s findings.


Wednesday, November 27, 2013

The parents of two women slain at Virginia Tech on April 16, 2007, have asked the state Supreme Court to reconsider its recent decision to overturn a jury finding of negligence against the state.
The plaintiffs in the case — the parents of the late Erin Peterson and Julia Pryde — have filed a petition for rehearing with the high court.
On Halloween, seven of the court’s justices overturned a combined $8 million jury award for the plaintiffs that was handed down by a Montgomery County Circuit Court jury in 2012.
“This Court should respect the jury’s findings on these issues,” the plaintiffs wrote in their rehearing petition.
The seven justices who heard the case originally will do an administrative review of the petition and issue an order at a later date, Deputy Clerk Lesley Smith said Tuesday.
Smith said there is no specific timeline for the court to issue an order on the plaintiffs’ petition.
Tech spokesman Larry Hincker declined to comment on the petition for rehearing. Brian Gottstein, spokesman for the Office of the Attorney General, did not immediately respond to a request for comment. The attorney general’s office mounted the defense in the case.
The Montgomery County jury found in 2012 that Tech officials were negligent for failing to warn the campus of a shooter on the loose after a fatal early morning shooting in a dormitory on April 16.
Less than three hours later, the same shooter chained shut the doors of Norris Hall and opened fire in second floor classrooms. An email notification short on details was sent out moments be-fore the second shooting began.
In all, 33 people — including shooter Seung-Hui Cho and Peterson and Pryde — died. More than a dozen other people were injured.
The tragedy is still considered the highest-casualty school shooting in U.S. history.
The jury award was reduced last year by the lower court to a combined $200,000 award under a Virginia law that caps damages against the state.
But the state appealed the lower court ruling, asking the state Supreme Court to overturn the jury verdict. The appeal alleged that the presiding judge in the case made a handful of erroneous rulings during the trial.
The Supreme Court found in favor of the defense, saying that Tech officials had no duty under Virginia law to warn Peterson and Pryde of potential third-party criminal acts.
According to the plaintiffs’ petition for rehearing, the justices ignored a legal standard requiring them to view the “evidence and all reasonable inferences flowing therefrom … in the light most favorable to the prevailing party.”
“Only by discarding venerable principles of appellate review can the Court conclude that administrators justifiably felt that there was no danger after the initial shootings,” the petition stated.
“Where a jury resolves disputed facts, this Court should, and must, stand aside and respect those findings.”
Instead, the petition argues, the justices “viewed the evidence in a light most favorable to the party who lost at trial, and based on that flawed view of the evidence, has reached the mistaken conclusion.”

Tuesday, November 5, 2013

Virginia Supreme Court Undermines Justice

            The Virginia Supreme Court’s decision to reverse the verdict of a jury trial in the circuit court that found Virginia Tech negligent for not warning the campus that a killer was on the loose on the morning of April 16, 2007, appears to be politically motivated and is a skillful manipulation of facts, evidence, and language.

            Judge Cleo Powell wrote the decision. In the opening paragraph she writes,
“… even in this case, we hold even if there was a special relationship between the Commonwealth and students of Virginia Tech, under the facts of this case, there was no duty for the Commonwealth to warn students about the potential for criminal acts by third parties.”

This sentence is a cynical and insidious in the way it plays with English syntax. The above sentence is intentionally vague. Under the rules of standard English for conditional sentences you are to use “was” if what you are saying is factually correct; you are to use “were” if what you are saying is not factually correct. When I say, “If I were the King of England, I would give everyone a Bentley.” I use “were” because I am not the King of England. In the Virginia Tech case, Judge Powell, by using “was” is admitting that a special relationship did and does exist between Virginia Tech and its students. Judge Powell should have used a straightforward, declarative, active voice sentence if she wanted her meaning to be clear, but apparently she needed to leave herself some wiggle room.

One of the arguments the state has made in the past is that a special relationship did not exist. Clearly, Judge Powell wanted to play a game with the readers and decided to admit that fact, but used a sentence structure that obscured this critical point. In fact, Judge Powell, in her attempt to obscure, may have set a legal precedent that Virginia Tech (and by implication all institutions in the state) has a special relationship with its students. Instead of playing grammar games,  Judge Powell should have, at minimum, had the moral courage to be candid in asserting that a special relationship does exist, and then argue why the Virginia Tech massacre is an exception. 

*      *      *

            Now, looking at the second half of the judge’s sentence we need to closely examine the facts of the case. In the section entitled “Facts and Proceedings,” the second paragraph, first and second sentences read:

            “During the investigation, police came to believe that they were investigating a domestic homicide because there were no signs of forced entry or robbery. They believed that a “targeted shooting” had occurred …”

            1. The fact is that the police did not do their duty. This was not a love triangle or “domestic homicide.” The dead male student was gay. One simple question about the relationship between the two victims to any student whose room was near the crime scene would have debunked the love triangle or “domestic homicide” theory. 

2.   The fact is that you had bloody footprints leading away from the crime scene, and a bloody thumbprint on a door leading to the stairway, in a building in the middle of the campus.

3.   The fact is there was no evidence that the killer had left the campus. The fact is that Virginia Tech set its own precedent for warning a few months earlier when a killer, William Morva, was on the loose in Blacksburg. There was no evidence he was on the campus and yet the school locked down and warned the staff, faculty, and students.

4.   The fact is that portions of the school took the initiative and complied with Virginia Tech’s rules and locked down and warned.  Those parts of Virginia Tech were complying with the school’s own rules and the Clery Act; President Steger and Police Chief Wendell Flinchum were not.

5.   The fact is that the school had warned the campus before on numerous occasions for such things as mold and the flu, why not for murder?

6.   The fact is that Judge Powell and the Supreme Court accepted the explanation that the West Ambler Johnston Hall murders was an “… isolated incident and posed no danger to others …”  without asking what made the police think that someone who has murdered one student and wounded another is not a threat to others?

7.  The fact is that there is evidence that Virginia Tech Police Chief Wendell
Flinchum was not telling the truth on the witness stand (during the Pryde and Peterson trial) about discussions which occurred on whether or not to warn and lock down the campus following the double homicide at Ambler West Johnston Hall.  

            8.  The fact is that Judge Powell was wrong when she said on page two of her opinion that “…the Blacksburg Police Department led the investigation.” The 7:51 a.m. entry in the Governor’s Review Panel Report states that “Chief Flinchum contacts the Blacksburg Police Department (BPD) and requests a BPC evidence technician and BPD detective to assist with the investigation.” The report repeated has Chief Flinchum calling the shots and asking the BPD for officers and assistance.

      On the witness stand Chief Flinchum admitted that he had the authority to issue a warning but indicated he never raised the subject with the school’s senior administrative group (called into session to discuss the murders). Flinchum’s denial that a warning or lockdown was discussed that morning stands at odds with the deposition taken from two note takers at the meeting, Kim O’Rourke and Lisa Wilkes.  Ms. O’Rourke’s notes are especially damning. She wrote, “… police (read Chief Flinchum because he was the one communicating with the administrative group) don’t believe a lockdown is necessary at this time.”

The Supreme Court also did not consider the fact that a lockdown would have saved lives. Two students were allowed to leave Ambler West Johnston Hall and go their French class in Norris hall where they were slaughtered. A lockdown, then, would have saved a minimum of two lives; there is no disputing that fact. Judge Powell ignored it or was just plain ignorant of that detail.

*      *      *

            In the “Facts and Proceedings” the Judge ends with the sentence “Police also learned that the female’s boyfriend was a gun enthusiast.” Judge Powell makes no further comment. I would ask Judge Powell to consider that probably more than half of the male students on the Virginia Tech campus are gun enthusiasts. So what is the point, judge? If being a gun enthusiast is cause for suspicion, the definitely the campus should have been locked down and warned.

*      *      *

            Paragraph six consists of two puzzling sentences. “Police subsequently executed a search warrant of the home of the boyfriend of the female victim found in West Ambler Johnston Hall. They found nothing.” The reader is not told that the search of the boyfriend’s townhouse took place some six hours after Cho was dead. No one has ever explained that fact. The police already knew who the killer was and that the killer was dead. Furthermore, the police violated the law by entering the house without showing the Thornhills the search warrant. What is the point of this paragraph? Reference to the search of Thornhill’s townhouse is not logical and makes no sense and draws attention to the police violating the law. It is actually counter-productive unless by leaving out the timing of the search, Judge Powell was trying to play up the idea that the police were conducting an intensive investigation, when in fat they were harassing a grieving young man and his family.

*      *      *

          Paragraph seven of the ruling ends with this:  … the shootings appeared targeted, likely domestic in nature, and that the shooter had likely left the campus.”  These words are particularly repugnant. Judge Powell combines the false assertion of a domestic crime, with the incorrect use of “targeted” killing, and ends with the indefensible assertion that “the shooter had likely left the campus.”

           As pointed out earlier, there is no way this could have been a domestic crime. Now, Judge Powell accepts the incorrect use of “targeted” killing. In fact, “targeted killing” is a concept used by experts and defined as “people far from any battlefield who are determined to be enemies of the state and are killed without charge or trial.” For a Virginia Supreme Court justice not to know the definition of “targeted killings” is inexplicable and troubling.

*      *      *

            Judge Powell twists her logic into a pretzel in order to accept Ralph Byers, Virginia Tech’s Executive Director for Government Relations explanation for backing away from the 8:45 a.m. assertion in an email to the Governor’s office: “gunman on the loose ….” Judge Powell never explains why the school administration was correct in warning the Governor’s office some 150 miles away, and not warning the campus. The excuse that the school wanted to notify the next of kin before releasing information to the public is specious. You can withhold the names of those killed and still warn the campus.

*      *      *

            Judge Powell’s handling of the doctrine of foreseeability is proof that her conservative ideology dictated the decision, not logic and law. Powell and the rest of the state Supreme Court was apparently unwilling to consider other court’s definitions of “foreseeability” and ignored the definition of “foreseeability” as spelled out in Turpin v. Granieri 985 P. 2d 669 (Id. 1999) in which the court wrote:

            “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 to be measured by just what is more probable than not, but also include 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.

            Virginia Tech official Ralph Byers used the words, “killer on the loose.” More violence, then, was foreseeable. The exact time and place of that violence may not have been predictable, but it most definitely was foreseeable and therefore there was a duty to warn.

*      *      *

            In the Analysis section, Judge Powell lays out the Commonwealth’s argument for dismissing the case. She writes on page eleven that “… we have imposed a duty to warn of a third party criminal acts [sic.] only where there was ‘an imminent probability of injury’ from a third party act.”  What greater indication of imminent violence does the Virginia Supreme Court need than Ralph Byers words at 8:45 a.m. that there is a killer on the loose?

*      *      *

            On page 15, the final page of the decision, Judge Powell writes “Most importantly based on information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others.” This sentence is one of the most disturbing and bogus in the report.

1.   There was absolutely no evidence that the killer had left the campus.

2.    There was absolutely no evidence the double homicide was the result of lovers’ triangle.

3.    There was absolutely no evidence the killer was not a threat to others on the Virginia Tech campus.

*      *      *
Judge Powell also writes, “Based on the limited information available to the Commonwealth prior to the shootings in Norris Hall, it cannot be said that it was or reasonably foreseeable that students in Norris Hall would fall victim to criminal harm. Thus, as a matter of law, the Commonwealth did not have a duty to protect students against third party criminal acts.”

            If you buy the incorrect definition of words, concepts and facts that Judge Powell lays out then the above is correct. But, unfortunately her words run counter to facts, evidence, and the truth.

*      *      *

            The conclusion of the decision reads: “Assuming without deciding that a special relationship existed between the Commonwealth and Virginia Tech students, based on the specific facts of this case, as a matter of law, no duty to warn students of harm by a third party criminal arose. Thus, we will reverse the trial court’s judgment holding that a duty arose and enter final judgment in favor of the Commonwealth.

Reversed and final judgment.

            Judge Powell did admit that there is a special relationship exists between Tech and its students in the opening paragraph based on the rules of standard American English. She is wrong on that point, just as she and the court are wrong on the facts of the case. There is no doubt—Virginia Tech had a duty to warn the staff, faculty, and students on the morning of April 16th.

            The Virginia Supreme Court’s judgment is the latest in a long series of decisions refusing to recognize the responsibility of a business proprietor, in this case Virginia Tech, to protect “its invitees from unreasonable risk of physical harm.” If that is the case, then you have to ask if schools do not have a responsibility to warn then why do they advertise themselves as a safe learning environment, why do they have police forces, why do they have elaborate and expensive warning systems, why do they warn and close down when a murderer is close by?

            The state’s defense is so weak and so full of holes that Judge Powell had to play with or ignore evidence and accept the state’s argument without question, and most troubling she showed no intellectual curiosity when there was evidence that a key witness in the trial may have perjured himself. The most plausible explanation for the court’s miscarriage of justice is that the decision is politically motivated; a decision designed to protect the largest financial engine in southwest Virginia from liability.


Saturday, November 2, 2013

Virginia Supreme Court: Miscarriage of Justice

Having spent 11 years researching and writing about the two school shootings here in Virginia (the Appalachian School of Law and Virginia Tech), I am disgusted with the Supreme Court's decision. The Governor's Review Panel Report is riddled with errors (Justice Powell and the court draw on that badly flawed document), and there is evidence that Police Chief Wendell Flinchum did not tell the truth about warning the campus (from a state witness who was never called to testify because he would have badly undercut the Commonwealth's case). There is clear evidence that a lockdown would have saved lives--two students were allowed to leave Ambler West Johnston Hall and go to their French class where both were slaughtered. A lockdown/warning would have saved--a minimum--two lives. That fact cannot be disputed. Judge Cleo Powell and the Virginia Supreme Court have shown an alarming lack of fairness and intellectual curiosity in dealing with the worst school shooting in this nation's history.
Judge Cleo Powell’s stunningly poorly written decision shows that the Virginia Supreme Court places right-wing ideology ahead of facts, evidence, and justice. Judge Powell has shown that the average “Jane” and “Joe” will not stand a chance in the Virginia legal system until 2023 when her term ends.

Sunday, October 27, 2013

Sparks, Nevada

Rappahannock Record
Kilmarnock, Virginia


            Now it is Sparks, Nevada—another school shooting. A math teacher, who was a retired Marine and had served in Afghanistan, is dead, as is the young shooter. Two other students were wounded. This is the 16th school shooting in the United States this year.  Once the facts are known about the young shooter in Sparks, there is a good chance that evidence of emotional instability or mental illness will surface.

            A key to fighting the epidemic of school shootings is detecting and getting help for those who are unstable and are a threat to themselves and others. That means greater spending and emphasis on mental health. Yet here in Virginia, the home of the Virginia Tech massacre (worse mass killing in this nation’s history), we now spend less on mental health than we did before the Tech tragedy. The policies of Governor McDonnell and Attorney General Cuccinelli, have weakened our mental health care system. Their policy of privatization of mental health care will result in a decline in the quality and amount of care, but it will enrich their supporters.

            State Delegate Margaret Ransone doesn’t want to discuss or listen to ideas on improving mental health care. She is running unopposed for re-election. When you vote, send Ransone a message that issue-avoidance—especially when it comes to the lives of children and their teachers—is not acceptable. Please check “other” and write in the name Albert Pollard.

David Cariens

Tuesday, October 22, 2013


Rappahannock Record
Kilmarnock, Virginia


Margaret Ransone does not deserve to be reelected to the House of Delegates. She has been missing in action and incommunicative with her constituents. A case in point has been my research on school shootings here in Virginia. The safety of our schools should be nonpartisan—an issue that brings Republicans, Democrats and Tea Party members together. But unlike Senators Warner, then- Senator Webb and Congressman Rob Wittman, Margaret Ransone refuses to respond to the simplest inquiries on that topic. She cannot deny she didn’t receive the inquiries, I sent them certified mail and have the receipts.

Her silence speaks volumes about her indifference on this critical issue to all Virginians—the state is the site of two of the worst school shootings in this nation’s history. Her silence stands in marked contrast to her predecessor, Albert Pollard. I therefore am asking all voters who are concerned and interested in making our schools and colleges safer to write in Albert Pollard on November 5th.

David Cariens
Kilmarnock, Va. 22482

Tuesday, May 14, 2013



Richmond Times-Dispatch
Charles W. Steger, who oversaw Virginia Tech at a time of major growth but also its greatest tragedy, today announced his retirement.
After 14 years he described as “a nanosecond,” Steger told students, faculty and staff in an email that he will step down after his replacement is found. The university said the board of visitors will assemble a search committee immediately.
Steger, scheduled to deliver Tech’s commencement speech Friday, said he has been “doubly blessed” to spend virtually his entire career at the university.
“As a three-time graduate of this institution, Virginia Tech has afforded me the tools for leadership and personal fulfillment,” he said in a statement.
His announcement came weeks after the state Supreme Court reversed an earlier decision and said it will hear arguments that Steger should be put on trial for his actions during the 2007 campus massacre.
Attorneys for the families of two students who were among the 32 killed by  student Seung-Hui Cho want the court to hold Steger accountable for the delay in alerting the campus after the first two shootings. Cho killed himself after the deadliest mass shooting in modern U.S. history.
The university cited Steger’s accomplishments during his tenure: Tech’s research portfolio increased by more than 300 percent; enrollment grew from 27,869 to 31,087; more than $1 billion was raised in private funding; and more than 2.5 million square feet of buildings were added.
“We sadly accept President Steger’s desire to step down as president,” said Tech’s rector, Mike Quillen, said in a statement.
Quillen said Steger has had a long and successful tenure "but we understand his desire to ratchet back the extraordinary commitment of a major university president.”
In the legal legacy of the mass shootings, the state Supreme Court in June is expected to hear a consolidated appeal of a negligence verdict reached in March 2012 in Montgomery County Circuit Court.
The parents of Erin Nicole Peterson and Julian K. Pryde were awarded $4 million each,  which was later reduced to the cap on damages against the state to $100,000 each. The state was the lone defendant in the trial.
The Supreme Court, which already had agreed to hear the state's appeal of the negligence verdict, did not explain its decision to hear the parents' arguments to include Steger in the case, which the justices had rejected in late February.
Steger initially had been named in the parents' lawsuit but was exempted before trial on a legal technicality.
With total compensation of $857,749, Steger is the best-paid of Virginia’s public university presidents and ranks seventh nationally on a Chronicle of Higher Education report  on salaries of top executives at public institutions.
 Blogger’s Comment: Steger is “suddenly” stepping down because Virginia Tech does not want the bad publicity associated with its president being tried for his role in the April 16, 2007 massacre.

Thursday, March 7, 2013


The failure to warn the Virginia Tech campus on April 16, 2007 following the double homicide at West Ambler Johnston Hall hangs like a cloud of shame over Virginia Tech and haunts the victims’ families.

Now, details have come to light indicating that Virginia Tech Police Wendell Flinchum may have committed perjury.

The chief testified on March12, 2012, in the lawsuit brought against the school by the Pryde and Peterson families, that he did not recall having any discussion with the school president about warning the campus.

When asked, ”You had no discussion with him about whether or not the campus should be warned?” Flinchum replied, “Not that I recall.”

When asked, “He didn’t ask you for your advice or if the campus should be warned?” The chief responded, “If he did, I don’t remember.”

Two different note takers at the meeting tell a different story. Lisa Wilkes wrote, “… (a) lockdown is not necessary.”  Kim O’Rourke wrote, “…(the) police don’t believe a lockdown is necessary at this time.”

An expert witnesses for the defense identified Chief Flinchum as “the on-the-scene commander” and the person giving the group the “on-going communications” about the crime. Flinchum was, then, the one who said a lockdown was not necessary.

Under oath, Flinchum admitted there was no “person of interest” at 7:30 am, one of the reasons the school gave for not warning. The chief confirmed there was “no person of interest” until sometime around 8:30 am. Therefore, an hour into the crime and only a select few knew that a killer was on the loose and could be on the campus.

At a press conference some 12 hours after the shootings, Tech President Steger gave the 7:30 am time as part of the excuse for not warning. Chief Flinchum was there and said nothing.