The VLW Blog

The 4^th US Circuit Court of Appeals, with an opinion by Judge Designate Sandra Day O’Connor, rejected the claim of a man who said his free speech rights were violated because his fellow members of the Fredericksburg City Council would not let him pray “in Jesus’ name.”

The opinion is here. The Associated Press has comment from the ACLU and the Rutherford Institute, which took up the case of the Rev. Hashmel Turner.

By Peter Vieth

Indictments returned this week against four people in a vote fraud case are only part of a long-running investigation of alleged corruption in the Wise County town of St. Paul. The Bristol Herald Courier has details.

Consider it a study in contrasts. In Gloucester County, where citizens protested a January clean sweep at the county government office, a special grand jury was appointed in three months and rendered both criticism and criminal indictments four months later. In St. Paul, however, the investigation of town government issues has been dragging on for four years. The project is now on its second special grand jury, although the same jurors make up the panel.

One issue that has been a matter of public record is the charge that outsiders were induced to try to cast ballots in the town elections in May. Wise County Commonwealth’s Attorney Ron Elkin is quoted as saying that he’s also investigating allegations that town officials told police “not to patrol certain areas.”

The Los Angeles Times reports on a study that suggests that matches of DNA profiles may be more common than the one in more than 100 billion projected by the FBI and other crime labs.

The FBI responds that it is the methodology of the study itself that is flawed, and The Times says the agency has tried to block dissemination of it – to the point of appealing court orders requiring labs to conduct similar studies in their states.

By Alan Cooper

Highway 220, the road leading to and from The Homestead, was covered with campaign signs for Mark Warner and Jim Gilmore in preface to Saturday’s VBA debate. Advantage: Warner.  

The more recent ex-gov clearly won the sign war up and down the highway. A couple of completely anecdotal observations:

Warner was out earlier. There didn’t seem to be any Gilmores on the road on Thursday afternoon as attendees at the VBA summer do rolled in.

Warner had more. Given the press reports about the size of the candidates’ respective war chests, that’s no surprise. Warner’s were bigger too (see the pic).

Warner went further north up 220 and further south down 220, almost to Covington.

Warner had a little “Warnermobile” tooting around town. Okay, it was a pickup truck with big signs. Gilmore had to hate that.

He had to hate this too: Someone had fashioned and posted a lot of “McCain for President, Warner for U.S. Senate” placards along the highway. Those disappeared from the side of the road quickly after the debate, for some reason.

By Paul Fletcher

Two ex-governors, Mark Warner and Jim Gilmore, met in the kickoff of the campaign for retiring U.S. Sen. John Warner’s seat July 19. The Virginia Bar Association held its traditional candidates’ debate at The Homestead.

The debate was delayed 15 minutes apparently due to audio problems: the feed to Gilmore’s campaign room wasn’t working. But that wasn’t how it looked at first. VBA Mike Pace got things under way, business as usual. He introduced Gilmore, but he didn’t come in. That’s when the difficulty was discovered. Warner was standing in the wings and several times stepped into the room with a bemused stage shrug (see the pic), as if asking, “Where’s Jim?” Once he starting working the crowd, shaking hands and asking, “Are we going to have a debate today?”

Gilmore finally came in and promptly thanked the “Virginia State Bar,” adding there had been an audio problem. Oops. He righted himself immediately, though, with a reference to the “Virginia Bar Association” and the show went on.

Each guy had his sound bites working. Gilmore, who at times raised his voice, almost yelling into the mike, had a mantra railing at “typical Washington politicians.” Warner mentioned at least three times the fact that Virginia was voted the best-managed state on his watch.

By Paul Fletcher

Medical malpractice plaintiffs continued their string of wins in the Supreme Court of Virginia in an unpublished order issued today.

The case, Kraina v. Carman, stemmed from the removal of ruptured breast implants by Norfolk physicians in November 2001. In her original complaint, the plaintiff specified injuries that she alleged were caused by the failure of the defendants to properly prescribe antibiotics to cure an infection after the surgery. In addition, she filed a general allegation of negligence based on her treatment from March 2001 though the date of the surgery.

In answers to interrogatories, plaintiff’s expert contended that the defendants were negligent in performing all aspects of implant removal and breast reduction in the same procedure. In her designation of the expert’s testimony, plaintiff said he would assert that defendants should have used a two-stage procedure that would have avoided the infection and loss of tissue. The designation did not allege negligence in treating the infection.

Defendants contended plaintiff had abandoned the original theory of negligence in treating the infection and presented an entirely new theory alleging negligence in planning and executing the surgery itself. The trial judge granted their motion to strike the designation and entered summary judgment because plaintiff did not have expert testimony on causation and the standard of care.

The Supreme Court ruled, however, that the general allegation of negligence was enough to put the defendants on notice that plaintiff was alleging negligence during the surgery itself. The court said the trial judge could properly have excluded the expert’s testimony about post-surgery treatment but erred in excluding it altogether.

The ruling in the case argued in June followed two decisions in favor of plaintiffs on June 6, giving plaintiffs 11 straight decisions in their favor from the court.

By Alan Cooper

A 28-year veteran of the Virginia Senate, Joseph V. Gartlan Jr. is dead at the age of 82.

The Richmond Times Dispatch reports that Sen. Gartlan died overnight. In a statement, Gov. Kaine said of Sen. Gartlan, “He was a tireless and effective advocate for the environment, the mentally and physically disabled, and for abused and neglected children.” Kaine said the Democrat “earned the respect of both parties for his intellect, integrity, and force of will.”

By Peter Vieth

Roanoke neo-Nazi activist William A. White apparently has been allowed extra time to try to hire a lawyer to defend him in a criminal contempt of court action.

A hearing set for Friday was postponed indefinitely after Roanoke lawyer Harry Brown filed a motion indicating that he was hired for civil matters only and is not prepared to defend White in the contempt matter.

In an accompanying affidavit, White offered some explanation for his actions that offended the court. He explained that he did not mean to send a copy of a profane and insulting e-mail to a judge’s law clerk. White said that he hit “reply all” on his e-mail program and did not know that one of the recipients was a court official. White stated that he meant to send the “flame” message only to attorney Anthony Troy and to a computer expert retained in the case.

White’s affidavit makes no mention of the principal basis for his contempt charge. White is accused of deleting more than 50,000 files from his computer after a subpoena was issued for his computer records.

According to court records, the U.S. Attorney’s office, appointed by the court to prosecute the contempt case against White, filed an ex parte sealed motion earlier this month which was granted by the court. We don’t know the effect of that ruling because the order granting the motion also is sealed.

By Peter Vieth

President Bush has nominated Washington commercial litigation attorney Anthony J. Trenga to the U.S. District Court judgeship vacated by the resignation of Walter D. Kelley.

Trenga is a partner in DC’s Miller & Chevalier. An Alexandria resident, he has served on the Virginia State Bar Disciplinary Board and has been a member of the VSB Clients’ Protection Fund and the bar’s CLE Committee, according to his Web site biography. He currently serves on the Panel of Arbitrators for the National Association of Securities Dealers.

U.S. Sens. John Warner, R-Va., and Jim Webb, D-Va., issued a joint news release praising Trenga’s nomination.

By Peter Vieth

It’s a sad story well-known to the legal profession — a law office victimized by a dishonest staffer.

In this South Carolina case, it was two separate law firms who had to scramble to make things right after Caroline Keys pocketed money by altering closing documents. As reported by The Sun News, one of the victimized lawyers testified, “This will continue again and again. She’s now in a small town in Virginia, and she’s going to prey on a small law firm there.” Not to worry right now, however. The South Carolina judge gave Keys three years to serve.

By Peter Vieth