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Virginia Supreme Court Blunder

March 1, 2015

by David S. Cariens, Jr.

Whatever our politics — Democrat, Republican, Tea Party, Green Party — we share a common expectation that our courts will treat us fairly. When a court renders a major decision based on false information -- especially when that court is the Virginia Supreme Court -- it should disturb everyone.

It is unusual for a state Supreme Court, or the United States Supreme Court, for that matter, to overturn a jury verdict. But on October 31, 2013, the Virginia Supreme Court did just that: It overturned a jury verdict in the Pryde and Peterson lawsuit against Virginia Tech holding the school liable for not warning the campus on April 16, 2007, after a double homicide had taken place at West Ambler Johnston Hall. About two hours after that incident, Seung-Hui Cho killed another 30 people and wounding 17 before killing himself.

Justice Cleo E. Powell who wrote the unanimous decision, stated that " 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." She then got one of the most critical facts wrong—who was in charge of the investigation that day following the initial shooting at West Ambler Johnson Hall.

Powell wrote that the Blacksburg Police Department was in charge: "Although officers from the Virginia Tech Police Department were the first on the scene, the Blacksburg Police Department led the investigation." In fact, Chief Wendell Flinchum of the Virginia Tech Police Department was in charge. If Blacksburg Chief Kimberly Crannis had been, there would have been no duty to warn because she did not have that authority. Chief Flinchum did have the authority to warn and lockdown.

To cite Crannis as the person in charge is not only a major blunder in the historical record, but sets a precedent that incorrect facts central to a major decision are acceptable. Five times, people testified under oath that it was Chief Flinchum and not Blacksburg’s Chief Crannis. Having gone through more than five volumes of trial testimony, I can find no reference to Chief Crannis being in charge.

The identity of who was in charge is important because Virginia Tech had in place all the means necessary to warn and lockdown the campus on April 16, 2007. Over two and one half hours elapsed between the double homicide and the mass murder in Norris Hall. So, more than a year after the Supreme Court ruling, the question persists, why didn't the university issue a warning?

Eight months earlier, the Virginia Tech administration had set a standard for warning the university community. In the fall of 2006, a prisoner in the Blacksburg jail, William Morva, escaped and killed two people. There was no indication that Morva was on or near the campus, yet Virginia Tech warned and locked the campus down.

But on April 16, 2007, there was a double murder in the middle of the campus. Thirteen bloody foot prints led from the crime scene to an exit stairwell; there were spent bullet shells on the floor but no weapon. The school issued no warning even though it was obvious the killer was on the loose. Had a lockdown of the campus been implemented, lives would have been saved. The administrative failure allowed two students to go to their French class where they were among the first of the 30 students and teachers killed in Norris Hall.

The Virginia Supreme Court declined to hold anyone accountable for anyone else’s actions in the Virginia Tech massacre. The Court is entitled to its opinions, but not its own facts.

David S. Cariens, Jr., a retired CIA intelligence analyst, is author of "Virginia Tech: Make Sure It Doesn't Get Out." He publishes the "A Question of Accountability" blog.

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Virginia Tech Police Chief Wendell Flinchum's testimony that he was in charge of the investigation:

Q: I want to be clear about this, this was a Virginia Tech police investigation. Is that correct?
A: It was, yes.
Q: And you were in charge and you were responsible.
A: I was responsible, yes. ...

Blacksburg Police Chief Kimberly Crannis's testimony that Flinchum was in charge of the investigation:

Q: This was a Virginia Tech investigation, right?
A: Yes, it was.
Q: And Chief Flinchum was in charge?
A: Yes, he was.
Q: But you were providing support as you just indicated?
A: Yes, sir.
Q: The conclusion that you tentatively reached with respect to a domestic homicide that you just testified to, was that a topic of conversation between you and Chief Flinchum?
A: Yes, it was. ...

Blacksburg Police Chief Kimberly Crannis's testimony that she offered assistance to Flinchum:

Q: Do you have an agreement with Virginia Tech Police Department, a mutual aid agreement?
A: We do.
Q: Please tell the Members of the Jury what that is.
A: The mutual aid agreement covers all aspects of assistance to Virginia Tech or vice versa to the Town of Blacksburg. ...
Q: Now, when you discussed providing assistance with Chief Flinchum, was there a specific request for particular types of assistance?
A: There was a request for our crime scene technician and our investigations.

Virginia Tech Police Chief Wendell Flinchum's explanation for seeking assistance from the Blacksburg Police Department:
Q. You were the most senior guy from your department there [at the first crime scene], obviously.
A: Yes.
Q: You didn't have a homicide investigator in your department.
A: That's why we called the Blacksburg police for assistance.

Transcript of a video clip used in the courtroom in which Virginia Tech President Charles Steger said the Virginia Tech Police were being assisted by the Blacksburg Police:

Virginia Tech Police immediately secured the room for evidence collection and began questioning dorm residents and identifying potential witnesses. ... The Blacksburg Police Department were also on the scene assisting the Virginia Tech Police in establishing a safe perimeter around the residence hall and securing Washington Street. ...

At 9:00 a.m. the [Virginia Tech leadership] team was briefed and had a chance to interview a number of witnesses by then on the situation and Virginia Tech Police Chief Wendell Flinchum of the latest developments of the ongoing investigation.

The legal agreement between the town of Blacksburg and Virginia Tech stating that the requesting police department will retain control of investigations:

Therefore, in consideration of the premises and of the mutual promises contained in this agreement, the parties agree as follows...

All law enforcement personnel responding to an emergency request as described in this agreement will report to and take direction from the Chief of Police of the requesting agency or his/her designee.

Dec. 13, 2013, letter from Blacksburg Police Chief Kimberly Crannis to David Cariens stating that on April 16, 2007, the investigation was  conducted in accordance with the legal agreement.

The Blacksburg Police Department responded to the request for assistance 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 and take direction from the Chief of Police of the requesting agency."