THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: WEDNESDAY, June 15, 1994 TAG: 9406150497
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: 940615 LENGTH: Medium
In November, appeals court Judge Joseph E. Baker cast the deciding vote when a three-judge appeals panel upheld Wynne's 1990 fraud conviction. The vote was 2-1.
{REST} Then Baker changed his mind. Last week, Baker again was the deciding vote when eight judges from the same Virginia Court of Appeals reversed Wynne's conviction. This time, the vote was 5-3.
If Baker had not changed his vote, the court would have deadlocked 4-4, upholding the earlier ruling. Wynne's conviction would have stood.
Lawyers and law professors agree that Baker's reversal was unusual, but not unprecedented. Each could recall cases in which appeals judges changed their minds, but none could remember one that actually reversed a conviction.
The Court of Appeals does not keep statistics on such cases.
``What makes this stand out is it became the swing vote each way,'' said Roger D. Groot, a law professor at Washington and Lee University.
Why did Baker, a 74-year-old former Norfolk Circuit Court judge, change his mind?
On Tuesday, Baker declined to discuss it. ``I simply don't make comments on any cases we try,'' he said. Appeals judges don't have to explain their decisions except in written rulings. In this case, Baker did not write his opinion.
Lawyers involved in the case also could not explain the switch.
``I was certainly pleased to see it when we counted up the votes . . . but I had no inkling it was going to happen,'' said Frank B. Friedman, a Roanoke lawyer who represented Wynne on appeal.
The special prosecutor in the case, Richard C. Grizzard, declined to comment. He cannot appeal the court's decision.
The case involves a $1,000 check that Wynne received as mayor from Sumitomo Machinery Corp. in 1990. Sumitomo officials testified that they thought they were giving money to defray the mayor's expenses in entertaining foreign visitors.
Instead, Wynne used most of the money to repay Chesapeake for personal costs incurred during official city travel.
In 1990, a Circuit Court judge convicted Wynne of a felony - obtaining money by false pretenses - and sentenced him to 100 hours of community service. Wynne resigned as mayor and appealed the verdict.
Last year, the three-judge panel heard Wynne's case. In November, two of the judges, including Baker, upheld Wynne's conviction.
The panel issued an eight-page opinion. On the key issue of whether Sumitomo relied on Wynne's false pretenses in giving him the money, the judges wrote, ``The testimony of Sumitomo's representatives proves that the false pretenses induced Sumitomo to make its contribution.''
But Judge Lawrence L. Koontz Jr. disagreed. He wrote that a Sumitomo official's testimony ``suggests that he was willing to have the contribution used to repay the city for the costs of Mayor Wynne's travel on official business so long as Mayor Wynne's family travel expenses were not included.''
Wynne appealed to the full court.
On June 7, the court issued a short, two-page order overturning Wynne's conviction. This time, Baker voted to overturn.
The court offered two sentences of explanation: ``The evidence does not establish beyond a reasonable doubt that the alleged false pretenses induced the owner (Sumitomo) to part with his property (the $1,000). To the contrary, the alleged victim stated that the representations made were not a determining factor in his decision to make a contribution to Wynne.''
It is not unusual for the full Court of Appeals to overturn a three-judge panel. Few panel cases are even heard by the full court - about a dozen a year - and about half of those are overturned, Groot said.
Politics probably does not explain Baker's change of heart: He is an old-line Norfolk Democrat, former assistant city attorney and Circuit Court judge. Wynne is a young Republican, non-lawyer and the first directly elected mayor of Chesapeake.
Wynne's attorney, Friedman, said, ``I'd be surprised if anyone could say why he changed his vote.''
Said Groot, ``I don't think there's a thing in the world wrong with a judge changing his opinion . . . You just don't see it very often.''
by CNB