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Robbins: Vacatur, a lord of legal justice

Although it sounds like it could be Darth Vader’s brother, it is not. In fact, Tatooine is a galaxy far, far away from what vacatur is. But I digress …

Vacatur, though as rare as a fine gemstone, is (not surprisingly considering the title and the subject of this column) a legal term. Not surprisingly as well, it springs forth from the Latin — “vacated.” Stated most simply, it means a rule or order that sets aside a judgment or annuls a proceeding. A petition for vacatur can arise in either criminal or civil proceedings, the nut which says, “Hey, let’s untangle this particular knot, let’s please set this thing aside.”

An example or two here might help.



In the 2010 United States Supreme Court case of Demarcus Ali Sears v. Stephen Upton, Warden, Demarcus A. Sears had been convicted by a Georgia jury of armed robbery and kidnapping with bodily injury (which resulted in death), a capital crime under Georgia state law. During the penalty phase of Sears’ trial, his counsel incongruously presented evidence describing Sears’ childhood as stable, loving, and essentially without incident. Seven witnesses offered testimony along the following lines: Sears came from a middle-class background, his actions shocked and dismayed his relatives, and a death sentence, the jury was told, would devastate the family.

Counsel’s mitigation theory, it seems, was calculated to portray the adverse impact of Sears’ execution on his family and loved ones. The strategy, however, backfired. The prosecutor ultimately used the evidence of Sears’ purportedly stable and advantaged upbringing against him during the State’s closing argument. With Sears, the prosecutor told the jury, “(we) don’t have a deprived child from an inner city; a person who[m] society has turned its back on at an early age. But, yet, we have a person, privileged in every way, who has rejected every opportunity that was afforded him.”

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The mitigation evidence that emerged during the state postconviction evidentiary hearing, however, demonstrated that Sears was far from “privileged in every way.” Sears’ home life, while filled with material comfort, was anything but tranquil: his parents had a physically abusive relationship, and divorced when Sears was young. He suffered sexual abuse at the hands of an adolescent male cousin. His mother’s favorite word for referring to her sons was “little mother f—ers.” His father was verbally abusive and disciplined Sears with age-inappropriate military-style drills. 

Demarcus struggled in school, demonstrating serious behavioral problems from a very early age. Sears repeated the second grade, and was referred to a local health center for evaluation at age 9. By the time he reached high school, he was described as severely learning disabled and as severely behaviorally handicapped.

Environmental factors aside, and perhaps more significantly, evidence produced during the state postconviction relief process also revealed that Sears suffered “significant frontal lobe abnormalities.” Two different psychological experts testified that as a result of several serious head injuries he suffered as a child, as well as drug and alcohol abuse, Sears labored under substantial deficits in mental cognition and reasoning. 



Regardless of the cause of his brain damage, his scores on at least two standardized assessment tests placed him at or below the first percentile in several categories of cognitive function, “making him among the most impaired individuals in the population in terms of ability to suppress competing impulses and conform behavior only to relevant stimuli.” One expert testified that Sears’ “history (was) replete with multiple head trauma, substance abuse and traumatic experiences of the type expected” to lead to these significant impairments.

This stuff mattered. In consideration of the same, and in light of Sears’ attorney’s odd appeal at sentencing, and because there was a failure to conduct an adequate mitigation investigation, shouldn’t his conviction — and Sears’ sentencing — be reconsidered?

In short, the Supremes said yes. The lower court judgment was vacated, and the case was remanded (that is, sent back to the trial court) for further proceedings consistent with the Supreme Court’s opinion.

In the civil setting, vacatur is similar in its effect.

An example in Colorado is encoded as C.R.S. Section 13-22-223, entitled “Vacating award” which appears in the context of arbitration. Specifically, the statute provides that, upon various grounds (for example, if the court finds that the arbitration award was procured by corruption, fraud, or other undue means; there was evident partiality by an arbitrator; there was misconduct or corruption by an arbitrator prejudicing the rights of a party to the arbitration proceeding; or where an arbitrator exceeded the arbitrator’s powers), the court may vacate the arbitration award.

What all of this has to do with is fairness. Sometimes, things go to what appears to be their very end in a way that is simply unjust. One of the beauties of the law is that, most times anyway, the Gordian knot of that injustice can, by the application of proper procedure and a bit of legal elbow grease, be undone.  A wrong can be righted. The court can toss out the bath water if not the baby.

Vacatur, if not exactly an intergalactic traveler, is a superhero in its own right, righting wrongs and doing justice with the lightsaber of the law.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers everywhere; coming soon, “He Said They Came From Mars.” 


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