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Getting an appellate victory after a conviction is justice delayed, at best

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Behind the orderly-looking appearance of courtrooms are repeated instances of no-holds-barred trial battle, and holding cells attached to each courtroom or down the hll. The fights can get expensive in terms of time, attorney fees, frustration and sweat expended. Criminal defense is battle and often war. Battlefields are not elegant, genteel places, nor are courthouses and the work required before going to court.

Michael Gardner learned that the hard way, having been convicted of aggravated sexual battery and object sexual penetration. Gardner v. Virginia, __ Va. ___ (June 5, 2014).

At trial, the judge refused Gardner’s lawyer’s efforts to present testimony of Gardner’s reputation in the community for good behavior with children. Virginia’s intermediate appellate court rebuffed Gardner’s challenge on the trial judge’s ruling against admitting such reputation evidence at trial.

Finally, Gardner got vindicated today in Virginia’s Supreme Court, reversing Gardner’s conviction due to the trial court’s barring such reputation evidence at trial. In finding such character evidence admissible at trial, the state Supreme Court said:

A criminal defendant may prove his good reputation for a particular character trait by presenting “[n]egative evidence  of good character.” Zirkle, 189 Va. at 871, 55 S.E.2d at 29. “Negative evidence of good character is based on the theory  that a person has a good reputation if that reputation has not been questioned.” Jackson v. Commonwealth, 266 Va. 423, 439, 587 S.E.2d 532, 544 (2003). “A witness may testify that he or she has never heard that the accused has the reputation of possessing a certain trait.” Chiles v. Commonwealth, 12 Va. App. 698, 700, 406 S.E.2d 413, 415 (1991). We conclude that Gardner’s proffer was sufficient to demonstrate the substance  of the evidence of Gardner’s character that would have been provided, if the circuit court had not erroneously sustained an objection to Gardner’s inquiry concerning his character, and it would have been favorable to Gardner.

Of course, appellate courts frequently find error by the trial court, but still give no relief, claiming the error to have been harmless. Appellate court findings of the existence of harmless error in a criminal defendant’s appeal can often be dangerous crystal ball gazing using a poor quality crystal ball, with a defendant’s liberty on the line. Gardner determined the error was harmless:

Considering the evidence presented at trial and the fact that the jury could not reach a unanimous verdict on one count of aggravated sexual battery, we cannot say with fair assurance that the circuit court’s exclusion of Ombrembt’s and Allan’s character testimony did not “substantially sway[]” the jury’s determination of Gardner’s guilt. See Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (“[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand.”) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). Thus, we cannot say that the circuit court’s sustaining of the Commonwealth’s objection resulting in the exclusion of Gardner’s character evidence was harmless error. See Barlow, 224 Va. at 342, 297 S.E.2d at 647 (holding that the exclusion of defendant’s character evidence of nonviolence was not harmless error, despite defendant’s opportunity to present evidence of his reputation for being “honest and hard-working…")

Trial judging is a very challenging job, even for the most devoted and capable judges, and even the best judges can make glaringly erroneous rulings on the law. It is a huge shame that Gardner’s trial judge did not allow his character witness testimony in the first place.