Virginia Supreme Court Blunder

vt_massacre2by David S. Cariens, Jr.

Whatever our politics — Democrat, Republican, Tea Party, Green Party — we share a common expectation that our courts will treat us fairly. When a court renders a major decision based on false information — especially when that court is the Virginia Supreme Court — it should disturb everyone.

It is unusual for a state Supreme Court, or the United States Supreme Court, for that matter, to overturn a jury verdict. But on October 31, 2013, the Virginia Supreme Court did just that: It overturned a jury verdict in the Pryde and Peterson lawsuit against Virginia Tech holding the school liable for not warning the campus on April 16, 2007, after a double homicide had taken place at West Ambler Johnston Hall. About two hours after that incident, Seung-Hui Cho killed another 30 people and wounded 17 before killing himself.

Justice Cleo E. Powell who wrote the unanimous decision, stated that “under the facts of this case, there was no duty for the Commonwealth to warn students about the potential for criminal acts by third parties.” She then got one of the most critical facts wrong—who was in charge of the investigation that day following the initial shooting at West Ambler Johnson Hall.

Powell wrote that the Blacksburg Police Department was in charge: “Although officers from the Virginia Tech Police Department were the first on the scene, the Blacksburg Police Department led the investigation.” In fact, Chief Wendell Flinchum of the Virginia Tech Police Department was in charge. If Blacksburg Chief Kimberly Crannis had been, there would have been no duty to warn because she did not have that authority. Chief Flinchum did have the authority to warn and lockdown.

To cite Crannis as the person in charge is not only a major blunder in the historical record, but sets a precedent that incorrect facts central to a major decision are acceptable. Five times, people testified under oath that it was Chief Flinchum and not Blacksburg’s Chief Crannis. Having gone through more than five volumes of trial testimony, I can find no reference to Chief Crannis being in charge.

The identity of who was in charge is important because Virginia Tech had in place all the means necessary to warn and lockdown the campus on April 16, 2007. Over two and one half hours elapsed between the double homicide and the mass murder in Norris Hall. So, more than a year after the Supreme Court ruling, the question persists, why didn’t the university issue a warning?

Eight months earlier, the Virginia Tech administration had set a standard for warning the university community. In the fall of 2006, a prisoner in the Blacksburg jail, William Morva, escaped and killed two people. There was no indication that Morva was on or near the campus, yet Virginia Tech warned and locked the campus down.

But on April 16, 2007, there was a double murder in the middle of the campus. Thirteen bloody foot prints led from the crime scene to an exit stairwell; there were spent bullet shells on the floor but no weapon. The school issued no warning even though it was obvious the killer was on the loose. Had a lockdown of the campus been implemented, lives would have been saved. The administrative failure allowed two students to go to their French class where they were among the first of the 30 students and teachers killed in Norris Hall.

The Virginia Supreme Court declined to hold anyone accountable for anyone else’s actions in the Virginia Tech massacre. The Court is entitled to its opinions, but not its own facts.

David S. Cariens, Jr., a retired CIA intelligence analyst, is author of “Virginia Tech: Make Sure It Doesn’t Get Out.” He publishes the “A Question of Accountability” blog.

Virginia Tech Police Chief Wendell Flinchum’s testimony that he was in charge of the investigation:

Q: I want to be clear about this, this was a Virginia Tech police investigation. Is that correct?
A: It was, yes.
Q: And you were in charge and you were responsible.
A: I was responsible, yes. …

Blacksburg Police Chief Kimberly Crannis’s testimony that Flinchum was in charge of the investigation:

Q: This was a Virginia Tech investigation, right?
A: Yes, it was.
Q: And Chief Flinchum was in charge?
A: Yes, he was.
Q: But you were providing support as you just indicated?
A: Yes, sir.
Q: The conclusion that you tentatively reached with respect to a domestic homicide that you just testified to, was that a topic of conversation between you and Chief Flinchum?
A: Yes, it was. …

Blacksburg Police Chief Kimberly Crannis’s testimony that she offered assistance to Flinchum:

Q: Do you have an agreement with Virginia Tech Police Department, a mutual aid agreement?
A: We do.
Q: Please tell the Members of the Jury what that is.
A: The mutual aid agreement covers all aspects of assistance to Virginia Tech or vice versa to the Town of Blacksburg. …
Q: Now, when you discussed providing assistance with Chief Flinchum, was there a specific request for particular types of assistance?
A: There was a request for our crime scene technician and our investigations.

Virginia Tech Police Chief Wendell Flinchum’s explanation for seeking assistance from the Blacksburg Police Department:

Q. You were the most senior guy from your department there [at the first crime scene], obviously.
A: Yes.
Q: You didn’t have a homicide investigator in your department.
A: That’s why we called the Blacksburg police for assistance.

Transcript of a video clip used in the courtroom in which Virginia Tech President Charles Steger said the Virginia Tech Police were being assisted by the Blacksburg Police:

Virginia Tech Police immediately secured the room for evidence collection and began questioning dorm residents and identifying potential witnesses. … The Blacksburg Police Department were also on the scene assisting the Virginia Tech Police in establishing a safe perimeter around the residence hall and securing Washington Street. …

At 9:00 a.m. the [Virginia Tech leadership] team was briefed and had a chance to interview a number of witnesses by then on the situation and Virginia Tech Police Chief Wendell Flinchum of the latest developments of the ongoing investigation.

The legal agreement between the town of Blacksburg and Virginia Tech stating that the requesting police department will retain control of investigations:

Therefore, in consideration of the premises and of the mutual promises contained in this agreement, the parties agree as follows…

All law enforcement personnel responding to an emergency request as described in this agreement will report to and take direction from the Chief of Police of the requesting agency or his/her designee.

Dec. 13, 2013, letter from Blacksburg Police Chief Kimberly Crannis to David Cariens stating that on April 16, 2007, the investigation was  conducted in accordance with the legal agreement.

The Blacksburg Police Department responded to the request for assistance from the Virginia Tech Police Department, pursuant to a Mutual Aid Agreement between the Town and Virginia Tech. That agreement provided that “All law enforcement personnel responding to an emergency request as described in this agreement will report to and take direction from the Chief of Police of the requesting agency.”

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19 responses to “Virginia Supreme Court Blunder

  1. I just don’t find the look-back that useful myself and I’m still a bit confused why it mattered who was in charge if both were law officers in the employ of the Commonwealth.

    that aside – and perhaps it’s just me – but in all the years before of Virginia Tech history, and UVA, and William and Mary and colleges and schools all over the US – when did the term “lock down” come into the vernacular and why?

    what has happened to the country that now we not only use the phrase “lock down” but we nit pick who was supposed to it and when…. etc…

    I think it’s a sad commentary myself.

    • LarryG, I assume it matters because there may have been different responsibilities here whether to alert the campus at large that the initial assault had occurred, as between the chief of the VT campus police and the chief of the Blacksburg town police. Of course that’s part of the problem when second guessing an appellate opinion such as this, we don’t know all the facts, but also we don’t even know whether the facts said to be misrepresented in the opinion were even relevant to the Court’s conclusion. It’s tough to examine a complex 8-year-old piece of litigation with inadequate knowledge of all the details.

      • okay.. here’s my problem – why would the entire campus NOT be alerted – no matter who was in charge?

        Oh – and .. do Supreme Courts make mistakes? do bears do it in the woods?

        As long as Human Beings are doing the job – rest assured, mistakes will be made.

        every bridge that falls down, every airplane that crashes, every school shooting has “mistakes made”….

        it’s not the mistakes – the’re gonna happen – it’s what you do after… to improve…

        let’s put this in perspective – how many of the prior POTUS and SCOTUS in the country made no mistakes?

  2. “The Court is entitled to its opinions, but not its own facts.” You are correct, of course, as a matter of appellate procedure; but the readers of this blog can only wonder what is going on here.

    This was ‘below the radar.’ I’m not that familiar with what findings of fact were in the record before the Supreme Court, what error was taken up on appeal, what courts had already reviewed the facts below and on what grounds. Absent that knowledge and with only your account before me, it hardly seems possible that such a pivotal factual misunderstanding as you allege remained unchallenged and un-emphasized in briefs and in oral argument on appeal, or that the Court would have persisted in its opinion in the face of these.

    Yet, stranger things have happened. It’s been eight years since our hearts went out to these VT families and I too hate to see them denied justice on a jurisdictional technicality. Will another shoe drop on this at the Court? At the GA?

  3. I am sure everybody involved has spent years wondering what might have gone differently had a warning been issued. The reality is nobody can know if the tragedy would have been averted, reduced, or even made worse. Lives might not have been saved. At the heart of it was an irrational madman. A heavily armed irrational madman.

    • re: ” At the heart of it was an irrational madman. A heavily armed irrational madman.”

      totally agree. not only for Va Tech but Sandy Hook and Columbine and a passel of others…

      I don’t know what good purpose self-flagellation serves… to be honest.

      the thing is – no matter how much you try to protect – there will always be weak spots – and they will be found … and exploited.

      does not mean we should not try – but it does mean looking back and trying to pin blame – is not such a useful thing – but I do understand the hurt and sadness and horror of the victims and their families.

      the world is simply not a 100% safe place. good people die at the hands of madmen… it’s terrible .. but it’s a reality… People like Bob Simon – die for no good reason and there is no satisfaction (at least to me) the manner of his death… it’s just part of life.. we all pass that way sooner or later.

  4. Excellent article again documenting the incompetence and corruption that is the Virginia state government.

    If a pilot makes an error and a plane crashes the airline owes remuneration to the families of the victims. Even if bad weather was a contributing cause the families get compensated. At least, I can’t recall an air crash where that wasn’t the case.

    If a doctor makes a mistake and a patient is harmed the patient is entitled to sue the doctor for malpractice.

    Right now, Don Blankenship is facing criminal charges over his company’s lack of proper safety procedure in the Upper Big Branch Mine disaster.

    If a police chief fails to order a lockdown after a double homicide on campus (when lockdowns have previously been ordered) then that police chief’s employers (in this case the Commonwealth of Virginia) should be held liable.

    Of course, the pro big government folks on this blog will do their best to waive off any accountability for government or government officials. After all, if teachers and school officials can’t be held responsible for educational results then law enforcement officials can’t be held accountable for doing their job properly.

    Remember sheeple – government is always good even when it isn’t.

    • bull feathers. Accountability is not revenge and errors in judgement, mistakes are not invariably a lawsuit. An EMS driver making a mistake on the way to the hospital does not get sued usually. an intersection where the lights have gone dark and an accident happens is not going to track down the guy that caused it or did not fix it fast enough.

      this kind of thing is not about “big government”, it’s about anti-govt idiocy that is running rampant now days. It’s about looking back – years – to re-hash something that the outcome cannot be changed.

      It’s about these wack jobs talking about the “mistakes” made by not strictly following the Constitution as if half the govt agencies in the Govt are “illegal”.

      disagree with someone on a policy. Find it to be wrong. Demand changes but if all you’re really after is to pin blame then go sit down.

      being opposed to something without having your own alternative is not “holding accountable” – it’s just lunatic logic.

      we put innocent people in prison for decades and even to death Don R – where is the accountability for that? Is it the “big govt” folks who excuse that ?

    • 30 plus years ago, I was working as in-house counsel for the Telephone Company in Des Moines, IA. I had a strange and sad case involving a drunk driver hitting a utility pole, a semi catching drooping wire, and causing the pole to swing around and severely injuring an investigating police officer. The Police had closed the street for an accident investigation, but reopened it just before the semi passed and caught the aerial cable. The police officer (and City) took the position (unsuccessfully) they were not in charge of the accident scene or responsible for opening the street to traffic. Incredible. But we won the case and were affirmed on appeal.

      • Why is it incredible that they would defend themselves from legal recourse using whatever position – flawed or otherwise – they had at their disposal?

        • At his deposition, the injured police officer admitted that, under Iowa law and Des Moines Police policy, as between a police officer and the public, the police officer was in charge of an accident scene. IMO, the argument was specious, it crowded the line against counsel making an argument that could not be supported – an ethics issue.

          The officer was looking for a deep pocket as the City’s liability to him was limited to the statutory equivalent of workers comp. The driver was worth zip financially and the trucking company was in bankruptcy. It was a sad case, but the courts agreed the Police should not have opened the street to traffic until the pole was removed or, at least, the cable disconnected.

          • not sure where the “make a mistake and we incinerate you” came from.

            I’m not an apologist for mistakes much less malfeasance or corruption

            but the blame game folks seem to be some of the same ones who say that medical costs are high because of lawsuits…. and it’s true – we have no shortage of folks these days who see financial opportunity in suing others

            and those same “conservative” blame game folks – don’t like regulation either… geezy peezy .. it’s damned if you do and damned if you don’t!

            and if i had a dime for every time a “conservative” said the SCOTUS ruled “wrong” .. well hells bells I’d be a millionaire these days!

            the blame game has gotten totally out of hand.

            Now days, it’s often not even about a real wrongdoing – it’s about something people disagree with.

            a kid up our way was thrown out of school for repeatedly shooting spitballs at other kids and teachers and you know what – a “Conservative” legal defense group took it to court… said the kids rights were being violated and the penalty was too severe..

            that was not too long after some idiot called 911 because the fast food place didn’t have his favorite menu item.

            I can go on… I’m NOT equating any of this to the Va Tech issue as I agree, it’s egregious that more than 2 hours went by without warning others – and some subsequently lost their lives. But you’re dealing with a madman as well as humans who make flawed judgments .. and anyone expecting perfection from government or institutions is expecting more than they should.

    • Ignoring the logical inconsistency of jumping back and forth over who bears legal responsibility – sometimes you say it’s individual people and then in others it’s institutions and yet you rhetorically treat them as if they’re things of the same kind – you actually used the word sheeple non-ironically.

      • yes – I’ve notice that also. The other thing is that – after the fact – we all know a madman was loose on campus – but at the time – if you had two killings – would you know whether it was a madman act in progress or a dispute between people?

        At what point – was it clear there was a madman lose and it was not a domestic dispute?

        in the future- when there is violence on campus – what procedures would be followed in deciding to lock-down the entire campus? Certainly not every time a violent act or even a murder – occurred – I would think .. perhaps others would disagree and the new normal for all campuses is automatic lockdown every time a violent act occurs?

        I’m willing to bet if you asked a hundred people what the threshold and actions should be – you’d get a wide range of answers – which also means a large number who will not agree just like our politics work these days.

        • The campus should have entered lockdown. Even if it had been “just” a domestic dispute there still would have been a madman with a gun in the vicinity and on the loose.

          • so “any” killing is presumed to be a madman and the entire campus locked down until it is determined that it was not a madman killing?

            not disagreeing… just trying to understand what the procedure should be and I presume it’s one that all colleges and universities in Va would be bound by.

  5. On the Va Tech thing specifically. what exactly is the purpose of looking back on the mistakes and who did them?

    what would we do?

    would we actually attempt to punish the person or persons who were involved in the “mistakes” ( which I admit – not doing something for 2 hours IS egregious)?

    but what would be the point of going back and re-litigating – which by the way looks like it is possible if the court did make an error.

    after all is said and done – in a perfect world – what should happen now?

    seriously. Courts make mistakes all the time – innocent people actually die and where is the justice for them?

    It seems to me that about the maximum that would be possible would be an
    “official” apology – and some level of financial compensation – which I thought was already done.

    educate me on what I’ve missed or how my view is wrong… please… and please don’t go into these anti-govt, “big time liberal”, canards.. just the simple non-partisan facts.

  6. The citation of precedent here is rock solid, so while the fact of who led the investigation may be wrong it ultimately didn’t end up mattering in the court’s decision.

    That said – and I understand wanting to avoid precedent and all that – it’s really disappointing the Commonwealth appealed the jury decision since the payout was going to be only $100k to each family. Whether or not they had reasonable knowledge that could have prevented the deaths of those two students, the state still comes off looking bad in this.

  7. LOTFL, you are 100% right that the state looks bad in appealing.

    And … the GA looks bad for their P.C. based (IMO) appointment of Justice Powell to the bench.

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