Category Archives: Courts and law

Impact of Supremes’ Roe v. Wade Ruling Way Overstated

Photo credit: Netblogpro

by Ken Reid

Should Governor Glenn Youngkin succeed in getting the Virginia General Assembly to curb abortion in Virginia from 25 weeks of pregnancy (at present) to 15, some 97% of abortions will still be protected, according to 2019 stats from the  Center for Disease Control and Prevention.

In addition, in six of the eight states which had pre-Roe v. Wade abortion bans, which have now become law again, an overwhelming majority of abortions will continue because abortion drugs (like Mifeprex – generic, mifepristone) –- cannot be outlawed. The only state with a trigger law where only 39% of abortions would continue is Missouri, based on data from the CDC.

In two states, Ohio and Texas, which have enacted restrictions after six weeks of pregnancy, CDC data indicates abortion through Mifeprex could conceivably cover 62% and 80% of abortions in those states, respectively.

About 54% of all abortions in 2019 were by abortion drugs, not surgery. Not all 1st trimester abortions can be done via drug, but the numbers are increasing and I will explain shortly why the states can do little about it.

I covered the drug and device industry for the trade press for 35 years, so I have some expertise here. Since the Supreme Court overturn of Roe was leaked in early May, I have written several articles, including a letter in The Washington Post,  about how this decision is really a wash for both sides – but these facts have not entered the news cycle or TV punditry. You can read one of these articles here.

Here are my arguments: Continue reading

Virginia Law, Abortion, Expectant Mothers and Medical Professionals

by James C. Sherlock

To clarify for those who misunderstand or knowingly misrepresent the statements of Republican leaders in the General Assembly concerning a new law on abortion, a woman aborting her unborn child is not proposed to be the subject of legal sanctions.

The targets in the mainstream Republican proposals being developed for a new abortion law will be the licenses of those performing the procedure.

Under current Virginia state law, abortion is legal in the first and second trimesters, or up to 26 weeks of pregnancy. It is allowed in the third trimester only if the woman’s life or mental or physical health is in danger.

Governor Youngkin told The Washington Post he would like the cutoff to be 15 or 20 weeks. He told the Post that he would support exceptions for rape, incest and when the mother’s life is in danger.

He has asked state senators Siobhan Dunnavant, R-Henrico, and Steve Newman, R-Forest, and delegates Kathy Byron, R-Lynchburg, and Margaret Ransone, R-Kinsale, to craft the legislation.

Dr. Siobhan Dunnavant, MD is an Obstetrics & Gynecology Specialist in Richmond. Senator Newman, R-Lynchburg, said in an interview with WTOP radio:

The state licensing process is most likely the best way to go about enforcement.

Indeed, it is the only politically viable way. Continue reading

The Rest of the Story: Other TJ Amicus Briefs

by Dick Hall-Sizemore

Asra Q. Nomani recently posted an article listing several organizations that had filed amicus curiae briefs in the case before the Fourth Circuit Court of Appeals in which the Fairfax County School Board is appealing a district court’s ruling that the new admissions process for the Thomas Jefferson School for Science and Technology is unconstitutional.

Lest readers of Bacon’s Rebellion get the impression that the School Board is out there all alone in its appeal, I thought a little balance was needed in this discussion. A look at the case file reveals a long list of amici filed on behalf of the school board. In addition to briefs from the United States, fifteen state governments, and several civil rights organizations, e.g. NAACP Legal Defense Fund and ACLU, there are three that are especially worth highlighting:

Asian American Youth Leadership Empowerment and Development for Youth and Families — “supports low-income and underserved Asian-Pacific American youth with educational empowerment.” Continue reading

Is Virginia’s Lab School Law Constitutional?

by James C. Sherlock

The Governor and General Assembly may wish to look at Virginia’s new laboratory schools law in light of the Supreme Court’s June 21, 2022 Carson v. Makin (Carson) decision

Held: Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.

The facts of Carson, in which Maine spent state money to fund students to attend private schools but not religious ones, seem to align generally with the facts of the establishment of laboratory schools under Virginia law.

Code of Virginia § 22.1-349.1. Definitions; objectives.

“College partnership laboratory school” means a public, nonsectarian, nonreligious school in the Commonwealth established by a public institution of higher education or private institution of higher education that operates a teacher education program approved by the Board. (Emphasis added)

That definition may be found to make the same constitutional error that the Supreme Court found in the Maine law on tuition assistance.  Continue reading

Picking the Wrong Fight

Buta Biberaj, Loudon County Commonwealth’s Attorney

by Dick Hall-Sizemore

One of the new Commonwealth’s attorneys in Northern Virginia has gotten into serious trouble.  Circuit Court Judge James Plowman, in a highly unusual move, has removed the office of Loudoun County Commonwealth’s attorney Buta Biberaj from the prosecution of a case.

In his order, Judge Plowman said that the prosecutor’s office had entered into a plea deal with a defendant without a “full review of the facts” of the case and was “deliberately misleading the court, and the public, in an effort to ’sell’ the plea agreement for some reason that has yet to be explained.”

Judge James E. Plowman, 20th Judicial Circuit, Loudoun County

In addition to removing and disqualifying Biberaj’s office from prosecution of the case, the judge rejected the plea agreement, appointed the Fauquier County Commonwealth’s attorney to prosecute the case, and recused himself from the case “unless the parties agree otherwise.”

The case involves a 19-year-old man charged with three misdemeanors (two counts of destruction of property and one count of providing false ID to law enforcement) and two felonies (burglaries).  The prosecution recommended a sentence of six months in exchange for guilty pleas. Continue reading

Virginia State Policy Guidance Discourages Reporting of Gang-Related Assaults in Schools

By James C. Sherlock

Over the last four years I always found it necessary to monitor the workings and products of both the Virginia Board of Education (BOE) appointed by two Democratic Governors and Governor Northam’s Virginia Department of Education (VDOE).

The amount of radical and objectively dangerous policy that came out of that system was unconscionable.

I just found another one that escaped my notice at the time.

The BOE in 2021 published model guidance still in force that pushes school boards to establish policies that actively discourage school principals from either reporting in-school gang-related assaults to law enforcement.  Richmond Public Schools, and I don’t know how many other school divisions, have done just that.

The issues:

  • Virginia criminal law makes gang-related assaults in schools aggravated felonies; and
  • gang activity in schools is objectively dangerous and disruptive.

Unbelievably, the Northam Department of Criminal Justice Services, responsible for school safety, participated in the drafting of those model policies.

At least that Department should have known that the BOE policy is way out of bounds from both criminal justice and school safety standpoints and blown the whistle.

The BOE needs to change the policy.

The Commonwealth Inspector General and the Attorney General need to investigate how that happened, assign responsibility, levy accountability and ensure such a thing never happens again.

Continue reading

Fairfax County and Protection of Supreme Court Justices Revisited

Courtesy of Fairfax County

by James C. Sherlock

In response to the adjacent exhortation by Fairfax County from its home page, I am speaking up.

Defend the homes of the Supreme Court Justices who live in your county.

I offer breaking news to many who only read and watch progressive media, including the Fairfax County Board of Supervisors.

Justice Kavanaugh and his family were the targets of an assassination attempt at their home in Montgomery County early Wednesday morning.

Going out on a limb, that may portend a “gun tragedy” in Fairfax County. Though not solicited in the banner request, I also report that there may prove to be a person or persons holding such weapons.

I hope I have not gone too far.

Continue reading

A Proposal to Mitigate Gun Violence

by Dick Hall-Sizemore

In an interesting development, one of the so-called “progressive” Virginia prosecutors has identified a direct link between someone committing misdemeanor offenses and later committing violent felony offenses.

The misdemeanor offenses that are predictors are gun offenses. After tracking  violent case histories, Ramin Fatehi, the commonwealth’s attorney for Norfolk, as reported by WAVY TV, “found it was often a pretty straight shot between low-level gun misdemeanors and violent gun felonies.” This applied both to folks pulling the trigger and those being shot.

Fatehi mentioned a number of gun misdemeanors, but said that a leading predictor was carrying a concealed weapon without a permit. In the several examples of violent crimes involving guns that he cited, all the perpetrators or victims had prior gun misdemeanor charges. Some of these charges had been dismissed or set aside. Continue reading

Instant Background Checks for Gun Purchases – What is Checked and Who Populates the Databases?

by James C. Sherlock

The FBI National Instant Criminal Background Check System (NICS) is much discussed and little understood by the general public.

In an effort to help, this article will inform readers about the NICS Indices, what information is kept there and how it gets there. The information here about the NICS is quoted or adapted from the FBI descriptions of the system it runs.

Then we will look at Virginia background checks specifically.

You will find that the utility of the data used for such checks, and thus who is sold or is not sold a gun by a licensed dealer, varies a lot.

It depends to a great degree upon the prosecutorial philosophy and policies of the Commonwealth’s Attorney where the buyer was raised and has lived since reaching adulthood. Continue reading

Red Flags in Fairfax County

by James C. Sherlock

Restorative justice (RJ) in Fairfax County Public Schools (FCPS) and Commonwealth Attorney Steve Descano’s progressive “reforms” of the criminal justice system had better work.

Because they virtually eliminate the very records of criminal and mentally disturbed misconduct by juveniles needed to support gun-purchase background checks.

FCPS asserts that their RJ system results in better-behaved students.

Here is that county’s paradigm comparison. What other choice do we have, it blares, than RJ? Continue reading

“Frequent Flyers” Are Not Harbingers of Anarchy

by Dick Hall-Sizemore

In a recent article on this blog, Jim Bacon cited the case of Ronald Thomas as a possible harbinger of a “descent into anarchy.”  One commenter cited 13 prior charges, many of which were “nol prossed”.

Just looking at a list of charges and their results can be misleading. It is necessary to look at the context.  It is common for law enforcement to charge a defendant with several separate offenses connected with the same incident.  It is also common, during the process, for prosecutors to reduce some of these charges and recommend an adjudication of nolle prosequi (“nol pros”) if the defendant pleads guilty to one or more charges.

A summary of the appearances of Thomas in Fairfax County and Arlington County district courts is set out below.  It is apparent that Thomas has been a busy man lately.  It is also obvious that he is an example of a long-time bane of law enforcement, sheriffs, and courts—a nonviolent offender who is in and out of jail frequently.  These are often referred to as “frequent flyers”. Continue reading

A Gun Owner’s Suggestion for Virginia Gun Laws

By James C. Sherlock

I was a career military man.

I am a conservative and a gun owner. As a younger man, I won competitive awards for marksmanship with both rifle and pistol.

I own a semi-automatic Glock for home protection.  I train regularly and at almost 77 can still hit what I aim at.

With that introduction, I have a couple of suggestions for gun legislation in Virginia that I hope will draw condemnation from both the left and the right so that I know I have it roughly right.

I have four criteria for firearms legislation:

  • changes that can matter to the safety of children and law enforcement officers;
  • changes that can deter criminals from use of a firearm in the commission of a crime;
  • changes that do not disadvantage the average citizen’s possession and use of firearms; and
  • changes that can pass Second Amendment review in federal court.

Those are, as a group, difficult needles to thread simultaneously.  They should be.

This article involves semi-automatic long guns – rifles and shotguns.

Continue reading

The Mercy Seat

Author Dale M. Brumfield’s new book chronicles the abolishment of Virginia’s death penalty.

by Peter Galuszka
Style Weekly

In 2015, Dale M. Brumfield, a veteran journalist and author, was finishing a masters degree in fine art in writing at Virginia Commonwealth University.

He learned of a prison inmate who escaped from Virginia to Florida, lived in a tent, and was caught after years of being on the lam.

“I got interested in talking to him for a story,” recalls Brumfield in his small office at his home in rural Hanover County.

The interview didn’t work out, but Brumfield says he got hooked on criminal justice and the death penalty. Not only did he write a book about the now-demolished Virginia State Penitentiary in Richmond, he became field director for Virginians Against the Death Penalty (VADP), an advocacy group that joined forces with other interested parties in abolishing capital punishment.

They were successful beyond their wildest dreams. In March of 2021, Virginia’s General Assembly voted to ban executions. It is the only state in the South to do so. “People had thought that this was far down the road. It caught everyone flat-footed,” he says. Continue reading

Miyares Wins Partial Transparency Victory

Jason Miyares, Attorney General of Virginia

by Steve Haner

Attorney General Jason Miyares (R) was partially successful in his efforts to challenge much of the secrecy shielding key data in Dominion Energy Virginia’s application to build its planned offshore wind facility, with some useful precedents set for the future.

Just before the hearings on the application began last week, a State Corporation Commission hearing examiner accepted the Attorney General’s office’s motion in part and rejected it in part. As a result, several portions of the SCC staff testimony have been filed again with dozens of previously redacted sections now open. Continue reading

Virginia Supreme Court Gives Hope to Competitors of Regional Healthcare Monopolies

Reese Jackson, CEO, Chesapeake Regional Medical Center

Is the Virginia Antitrust Act now in play?

by James C. Sherlock

There is good news this morning for those of us hoping for more competition to regional healthcare monopolies in Virginia.

The Virginia Supreme Court (the Court) overturned the decision of the State Health Commissioner to deny the application of the Chesapeake Regional Medical Center (CRMC) to create an open heart surgical service.

Sentara Health, unsurprisingly, objected to the application and was a party to the case before the Court. It also had been a party to the hearing by the Virginia Department of Health (VDH) COPN (Certificate of Public Need) adjudication officer. That official then made a recommendation against CRMC that the health commissioner accepted. The court found his decision to be fatally flawed.

The Court remanded the original decision to the new health commissioner for re-consideration. In doing so, it overturned decisions by the Chesapeake Circuit Court (made by a visiting Norfolk judge who failed to disclose a conflict of interest) and by the appeals court that upheld that original decision.

The court found that the health commissioner made an error of law and that the courts erred in both:

  • deferring to the heath commissioner for interpretation of his agency’s own regulations without rigorous review of those regulations by the courts; and
  • applying the harmless error doctrine to that error of law.  

Continue reading