Correction of Opinion in Blanding v. Commonwealth, Record No. 1339-19-2 (Va. Ct. App. Dec. 15, 2020)

Updated: 5 days ago

I was not trial counsel in this matter. I was only appellate counsel.

In Blanding v. Commonwealth, Record No. 1339-19-2 (Va. Ct. App. Dec. 15, 2020), the Court of Appeals made a statement in its opinion that has unfortunately misled some members of the public.

In its Opinion, the Court wrote, "In fact, in her opening statement at trial, the appellant's counsel indicated that she ’d[id]n't really anticipate that . . . whether or not there was a fire is going to be what the Court is trying to figure out. It is who actually set it.’”

This language has unfortunately given some members of the public the false belief that Appellant's counsel and Defendant’s trial counsel were one and the same. Trial errors were discussed in depth at oral argument, and the three-member panel was well-aware that I, Makiba Gaines, represented Appellant on appeal only and was not the attorney who represented him at trial. As the Court acknowledged at oral argument, I was not responsible for any trial errors. Rather, and as reflected in the record, in my first year out of law school, I discovered what I believed to be unpreserved trial errors, took every action an attorney could have taken ethically to preserve those errors for appeal post-trial, and I still argued the case into the 3% of appeals being awarded at the time.*

As lawyers, judges understand the importance of words. The Court’s opinion could have been made more accurate with the addition of one word, "appellant's [trial] counsel" — or “Appellant’s then-counsel.” But the Court decided against precision in this instance.

As a self-governing profession, I must say that when drafting irrebuttable written opinions, courts must exercise extreme caution in their wording, as to not make statements having the tendency to unjustly harm the reputations of lawyers, especially those of young black lawyers who already encounter more obstacles in the legal profession.

Appellant's Opening Brief is attached. The public can judge for itself whether the Court decided the case correctly.

*Appellate reforms render any disclaimer futile.

Opening Brief 1339-19-2(2)
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