CROSS POSTED AT kenlammers.com.
All last week I was down in bed. On Friday, when I was finally well enough to spend time on the computer I was flipping through various blogs and found out that an appeal I had written won the day in the Virginia Court of Appeals.
I didn't try the case and I had to hand it off to another to argue after I took the job in Wise, but I wrote the argument. As I read through the opinion it seems that the appellate court has it right. I am confused by one point. The Court of Appeals, on its way to a race based Batson reversal, blows off my argument that the strikes were also impermissible because they were gender based. The Court states that this was not preserved by the trial lawyer. I'm very familiar with the Court's strident refusal to accept an error not preserved by the defense during trial. I wouldn't have argued the gender issue without it being preserved - if for no other reason than to keep the argument as simple as possible. Unfortunately, I don't have a copy of the transcript anymore because I seem to remember the trial attorney saying he was objecting because the prosecution had struck the 2 female jurors. Maybe I'm wrong, but I put a good bit of argument into a moot topic if that's not what he said. Not that it matters now.
Anyway, courtesy Seeking Justice, here's the Court's opinion and, from my records, here's the brief I submitted.