Supreme Court of Virginia: Andrew Sacks Ineffective

Saturday, November 18th, 2017 @ 9:47PM

After waiting a year for the Supreme Court of Virginia to rule on Cameron Crockett’s appeal of the Virginia Beach Circuit Court’s decision on his habeas corpus petition, we have finally received a ruling from the state’s highest court.


On Friday, November 3rd, the Supreme Court granted Cameron’s petition for appeal and decided the case all in one fell swoop. (Normally, when a petition for appeal is granted, the parties are allowed to further brief the issues and have oral argument.) In deciding the case, the Supreme Court reversed the Virginia Beach ruling in part and affirmed it in part, tweaking the decision in Cameron’s favor in certain places but ultimately leaving Cameron’s custodial status unchanged.

For the moment.

In order to fully understand the implications of the Supreme Court’s recent opinion, one must first understand what is required for a habeas petitioner to prevail on a claim of ineffective assistance of counsel. Two “prongs”, or tests, must be met. First, the petitioner has to satisfy the “deficiency prong”, which requires proof that the petitioner’s lawyer performed in an objectively unreasonable manner and that his conduct fell below prevailing professional norms, i.e., that he was “deficient” in the execution of his duties. In essence, if this prong is met, it amounts to a finding of professional incompetence. Thus, as one might expect, this is a standard that is very hard for petitioners to meet. It is also something that many criminal defense attorneys fear may one day ruin their reputations if they are found deficient by a higher court.

The second prong, the “prejudice prong”, demands a showing that the lawyer’s errors had a substantial impact on the outcome of the case. To be more precise, there must be a reasonable probability of a different outcome absent counsel’s errors. This does not require the petitioner to show that counsel’s errors more likely than not affected the case; just that there is a significant chance that they did. If a petitioner meets the “deficiency prong” as well as the “prejudice prong”, then a finding of ineffective assistance will be made and a new trial will be awarded.

In Cameron’s case last year, Virginia Beach Circuit Court Judge James Lewis dismissed the habeas by signing a final order prepared for him by the Attorney General’s office finding that neither of the two ineffective assistance prongs was met. Following Cameron’s arguments in his appeal, however, the Supreme Court discarded all of the circuit court’s flawed reasoning. Not a shred of logic from the circuit court’s 30+ page order survived the appeal. Rather, the Supreme Court reversed the circuit court on the “deficiency prong” and unequivocally found that Andrew Sacks, Cameron’s trial lawyer, rendered deficient representation at trial as it pertained to every single one of Cameron’s three claims of ineffective assistance. In fact, the Supreme Court delivered this ruling at times in very direct language, rejecting Andrew Sacks’ proffered reasons for his failures as post-hoc excuses for his conduct and finding that they conflicted with what the evidence showed regarding the decisions he made throughout the course of his representation.

Unfortunately, that is as far as the good news goes. With respect to the “prejudice prong”, the Supreme Court ruled that no prejudice could be shown, though it relied on different reasons in arriving at this conclusion than did the Virginia Beach Circuit Court. In the Supreme Court’s opinion, the trial would not have ended differently had Andrew Sacks done his job. And that’s how close Cameron came to a new trial last Friday: a matter of speculation regarding how the jury might have decided the case differently with certain changes in the evidentiary landscape at trial.

But here’s how things look going to the next level. Now that the Supreme Court has decided the case this way, when Cameron files his federal habeas petition in the coming months he will no longer have to worry at all about arguing over the first prong of the ineffectiveness test. The “deficiency prong” is now resolved; it is accepted and established that Andrew Sacks failed to adequately represent Cameron. So, in federal court, Cameron will start off already halfway to the finish line. All that he will have to prove in order to overturn his conviction is that there’s a good chance he would have been acquitted had he received competent representation at trial. This will be very doable given that the Supreme Court’s reasoning on this “prejudice prong” is demonstrably contrary to clearly established federal law and indulges unreasonable determinations of fact, which are precisely the sort of state mistakes the feds need to see before they can reverse a case. And when it comes to, for example, Cameron’s claim that Andrew Sacks should have investigated and presented the seat belt evidence to the jury, it will defy all reason for the federal courts to reject the notion that such evidence would have changed the outcome when they’ll be staring dead at juror affidavits stating in no uncertain terms that the seat belt evidence would have changed their verdict. Of course, the Supreme Court of Virginia had this same evidence before them, but they ignored it entirely and did not mention it in any way in their opinion. We simply do not feel that the federal courts will do that, since their reputation is for giving a much fairer shake than their state counterparts.

We would like to add that, in recent years, the Supreme Court has decided two other high-profile cases in the same way they just decided Cameron’s– that is, finding the lawyer deficient but refusing to grant a new trial– and the petitioners in those cases went on to prevail shortly thereafter in federal court. Those were the cases of Derek Tice from the “Norfolk Four” and Michael Hash from Culpeper, Virginia.

It is almost as if this how the Supreme Court of Virginia, sensing injustice in a highly politicized case but not wanting to get its hands dirty, sets these innocent petitioners up for federal review. In any case, if this pattern holds true, then Cameron will be coming home early. We feel there is ample reason for optimism here. Hell, the fact alone that the Supreme Court even granted Cameron an appeal will pique the interest of the feds, since this is something that literally happens only once or twice a year in pro se habeas cases. 

We hope that all of our readers can see past this denial on paper for what it really is: the first recognition by any judicial body that Cameron really did not receive a fair trial because of his lawyer’s failures. We now stand on the verge of victory for the first time since Cameron was convicted in 2012. Justice is at last within our grasp.

We spoke to Cameron at great length in the course of preparing this update, and we asked him if he had any comment. It should come as no surprise that he did. The following was his message:

“I remember one time, before a volleyball game in high school, Jack stopped by where I was sitting in the stands, and I asked him, ‘Do you think you can handle these dudes?’ His only reply, which he said with a smirk borne not of arrogance but rather of pure, unadulterated self-confidence, was, ‘Victory is assured.’ At the time, this aura of imminent victory that he exuded on the court mystified me. For years I have wondered what it felt like to be so sure, down to the bone, that you would overcome the challenge in front of you with the team you have behind you. Well, I now know what that feels like. I felt it for the first time after I had a chance to really reflect on this opinion. And now I know that victory is assured. My diverse team of family and friends and I have put in the work, and now it’s time to close the deal. There is no denying that Andrew Sacks’ errors led to my conviction. It is only a matter of time before that conclusion becomes the final word in this matter. And when this story does end on that note, my first thought will be of that grin Jack had on his face so many years ago. Onward to victory!” 

Hold on to your butts, boys and girls, ‘cus we have a feeling that Cameron is about to pull off what seemed impossible just a couple of weeks ago. The final battle is upon us.


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