Ok The main part of this blog is devoted to decisions of the Court of Appeals of Virginia. Occasionally, however, I will stray in other issues and that is what the Soapbox is for. Today, I climb up on that precarious perch to address an issue in an unpublished order of the Supreme Court of Virginia in the habeas corpus appeal Robert John Dodd v. Harold Clarke, Director, Virginia Department of Corrections 2/4/2021 (unpublished order). Dodd is worthy of a mention even though it is an unpublished order because it raises an interesting issue that, IMHO, deserves greater attention – can a defendant be convicted of multiple felonies where the indictments are identical in every respect? This is a fairly common practice in a rather unpleasant area of the law, that involving the abuse of children through sexual assault, taking of indecent liberties and the creation of pornographic images. Because these events often take place over extended periods of time, the indictments tend to give a range of dates within which the alleged offenses occurred, rather than specific dates. Often, the victim is not able to be more specific than by reference to events (“after I started school,” “before we went to see grandma,” etc.). Without specificity of dates, defendants contend that they are unable to form a complete defense by, for example, establishing an alibi showing that on a specific date they had no contact with the victim.
Generally, courts have held that even extremely broad time periods do not per se violate the constitutional requirement that the defendant be given notice with specificity of the alleged crimes. However, in 2005, a divided panel of the Sixth Circuit Court of Appeals determined that “carbon copy” indictments insufficiently apprise a defendant of the charges against him, thus putting him at risk of multiple convictions for the same offense. Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005). Valentine has been cited in over 200 cases since its release, but it has not found favor with any other circuits or state courts of appeal. Dodd is one such case.
Dodd was convicted of three counts of forcible sodomy of a child under the age of thirteen, three counts of taking indecent liberties with a minor while in a custodial relationship, and three counts of aggravated sexual battery of a child under the age of thirteen. The indictments were facially identical for each count of the specific offenses. The jury instructions, like the indictments, failed to differentiate between Dodd’s three charges for each offense by date or underlying conduct.
The unpublished order does not provide details as to the length of time specified in the indictments or what the trial evidence was that proved there were multiple offenses. The omission of these facts is understandable, as this is not a direct appeal of the convictions and 99-year sentence imposed. In habeas proceedings, the reviewing court is not actually interested in the evidence, but only whether the defendant’s constitutional or statutory rights were violated because of some aspect of his trial, usually the failure of his counsel to provide an effective (or more accurately, a minimally effective) defense. Here, the issue was whether Dodd’s counsel was ineffective for not challenging the “carbon copy” indictments. Because “no controlling caselaw exist[s] holding that multiple identical indictments violate a defendant’s constitutional rights,” the Court concludes that Dodd’s counsel was not ineffective for failing to raise the issue.
This does seem to be a “Catch-22” – until there is controlling caselaw on an issue, a counsel cannot be held to be ineffective for not raising the issue, but if counsel does not raise the issue, how will controlling case law be developed? In reality, it often takes years for “controlling caselaw” to develop. Issues that we think of today as written in stone – Miranda warnings, the impropriety of racially-motivated striking of blacks from jury pools – had to be raised repeatedly until a crack in the dam of judicial intransigence appeared (which is usually followed by dam-bursting a flood). If the use of “carbon copy” indictments is ultimately found to be unconstitutional, it will not be because a habeas review finds it to be so. It will be because the issue is raised often enough at trial and on appeal that there is more precedent than just Valentine.