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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.