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… 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.

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