The Supreme Court of Virginia taught appellate practitioners yet another hard lesson in how procedural pitfalls can scuttle otherwise compelling appeals. In Eckard v. Commonwealth, the pitfall was failing to get the complete record sent from the trial court to the appellate courts. The failure rendered much of the appeal beyond the scope of appellate review. The result was an affirmed conviction notwithstanding pretty disturbing accounts of potential juror misconduct.

The bottom-line lessons for appellate practitioners:

• Review your appellate record;
• Make sure the record’s complete;
• When the record’s not complete, get it fixed by appropriate motion or petition in the trial court or the appellate court;
• You cannot count on the appellate courts to fix defects in the record for you;
• A defect in the appellate record is a decisive first step towards losing your appeal.

What Happened in Eckard

By way of background, Mr. Eckard was tried and found guilty by a jury of twelve counts of possession of child pornography. A few hours after the verdict, one of the jurors contacted the Sheriff to report that “during deliberations [he] changed his vote to guilty due to a perceived threat.” The juror reported that he “felt threatened, and was threatened in the bathroom, and felt he had to vote the way of the majority.”  (There were other complaints from the juror, but these were the most serious.)

The Sheriff attempted to follow up with the juror to no avail. Eckard’s lawyer filed a motion to set aside the verdict and the matter was initially set for a hearing on the motion. The trial court later changed its mind, cancelled the hearing, quashed any subpoenas issued for the hearing, and overruled the motion to set aside on the grounds that the allegations were insufficient to warrant intervention in the jury’s decision-making.

At a later sentencing hearing, Eckard’s lawyer sought permission to “submit a written proffer” regarding the evidence he would have put on at the hearing on the motion to set aside. The proffer, of course, was important.  Proffering what the evidence would have been, if the hearing on the motion to set aside had been allowed to go forward, is what lets the trial judge know is at issue in the motion to set aside the verdict.  For the appeal, the proffer is what’s necessary for the appellate court to know if the trial judge made any legal mistakes when overruling the motion..

Whatever Happened to the Written Proffer?

On appeal, in written briefing and in oral argument, Eckard referenced his written proffer of evidence.  But here’s the thing: the written proffer wasn’t in the appellate record that got sent from the trial court to the Court of Appeals.

Eckard’s counsel insisted he’d filed it with the trial court clerk, but he had no explanation why it wasn’t included with the appellate record.

How the Missing Proffer Doomed the Appeal

Two axioms of appellate practice worked in tandem to doom Eckard’s appeal.  First, it’s the appellant’s job to perfect the record on appeal. Any defects in it are the appellant’s responsibility to correct.

Second, appellate courts consider arguments based on the record that’s before them.  They can’t, and won’t, go searching on their own for new evidence or information that might be relevant.  (There are exceptions to this rule. For example, some appellate courts have original jurisdiction to hear cases in the first instance and in those cases they do have an evidence gathering function.)

Here, Eckard’s lawyer tried to do the right thing. He tried to respond to information he learned from the Sheriff.  He tried to get a hearing about possible misconduct by jurors. He tried to proffer to the trial court the evidence he said should be considered after the trial court refused to hold a hearing.  He tried to appeal the adverse ruling to the appellate court.

How to Fix the Problem of Missing Information in the Appellate Record

What didn’t Eckard do?  He didn’t make sure the appellate record was complete.  If he had, he would have seen that his written proffer wasn’t part of the appellate record. Rule 5A:7 of the Rules of the Supreme Court of Virginia makes clear what should be in the record and it includes “documents … filed …. in the office of the clerk of the trial court.” Eckard’s written proffer should have been in the record.

But it wasn’t. So, what was he supposed to do?

What he was supposed to do was, in the first instance, seek relief in the trial court and have the trial court make the written proffer part of the record.

If that did not work, he should have filed what is known in Virginia practice as a petition for a writ of certiorari.  Many of us are familiar with “cert petitions” in the Supreme Court of the United States. Those are the petitions that the Supreme Court requires as a request for that court to hear a case.

In Virginia, petitions for writs of certiorari have a very different function. As the Supreme Court noted, “modern Virginia practice has employed the writ [of certiorari] only ‘to obtain a fuller or more perfect record when a complete record has not been furnished.’” In short, if you have included in the trial court record an important item and it has not been delivered to the appellate court, you can and should file a petition for a writ of certiorari to have the record properly supplemented.

(Years ago, I represented an appellant on a gun charge. The color of the gun was relevant to the issue on appeal and the gun, though in evidence, was not sent from the trial court to the Court of Appeals. Though the Court of Appeals had a policy, for good reasons, against receiving guns and drugs from trial court records, the Court granted my petition for certiorari to include a photograph of the gun in the appellate record.)

Unfortunately, Eckard did not file a petition for a writ of certiorari in the Court of Appeals. The Supreme Court ruled that the Court of Appeals was not required, on its own initiative, to request information from the trial court that the appellant had not requested be included.

Though Eckard did ask the Supreme Court of Virginia to issue a writ of certiorari, that Court refused to do so. It reasoned that its role in this appeal was to review the ruling of the Court of Appeals for error. The Court of Appeals did not err when it refused to consider evidence that Eckard had not properly included in the appellate record. If the Court of Appeals did not make a mistake in not considering that evidence, a writ of certiorari issued by the Virginia Supreme Court would serve no purpose since it would only yield information irrelevant to the correctness of the decision by the Court of Appeals.

We can’t know, from the recital of facts in the Supreme Court’s opinion in Eckard, if that defendant’s conviction was obtained by unlawful threat or intimidation in the jury room. At least one juror, hours after the trial in the case, seemed to think so.  Eckard said he had provided a written summary of information that would corroborate the suspicion and at least counsel in favor of a fulsome hearing on the subject. But that written summary never made it to the appellate record. The appeal in the case proceeded as if the proffer had never been made at all.

The review of the merits of Eckard’s claims, based on the full account he said he had made part of the record at trial, didn’t happen. His loss on appeal, in light of the ruling not to consider the claimed written proffer, was inevitable.