Cite as: 530 U. S. 156 (2000)
Stevens, J., dissenting
filed a motion to set aside the verdict under Rule 3A:15(b) and the trial court had found that motion meritorious. But no motion to set aside the verdict had been filed or was pending; no legal basis for granting such a motion had (or has) ever been identified; and there was not the slightest indication from the Domino's Pizza robbery trial court that such a motion would have been found meritorious if it had been filed. In short, the plurality finds constitutionally significant uncertainty in the hypothetical possibility that a motion, if it had been filed, might have identified a trial error and the court possibly could have found the claim meritorious. The mere availability of a procedure for setting aside a verdict that is necessary for the defendant's parole ineligibility is enough, the plurality says, to make Simmons inapplicable.
Frankly, I do not see how Simmons can be found inapplicable on the basis of such a "hypothetical future develop-men[t]." 512 U. S., at 166 (plurality opinion). The plurality offers no evidence whatsoever that this possibility—an "if only" wrapped in a "might have" inside of a "possibly so"— is at all more likely to occur than the "hypothetical future developments" that Simmons itself refused to countenance. Why is that possibility of setting aside the verdict any more likely than the fanciful scenarios dismissed in Simmons? Why is the certainty diminished merely because the trial judge has not yet entered judgment, when that fact has no bearing on whether a Rule 3A:15(b) motion will be granted? The plurality never tells us, for it simply declares, without support, elaboration, or explanation, that a verdict is more uncertain than a judgment is. See supra, at 192-193, and n. 17. The only reason it suggests for why the verdict here was uncertain is rather remarkable—that Ramdass himself said so. That is, the plurality relies upon the fact that a convicted murderer with minimal education and a history of drug experimentation including PCP and cocaine, App. 49, said "I don't know" when asked if he could ever be released
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