No foolish consistency required

In Farmer v. Commonwealth, the Virginia Court of Appeals in a decision by the panel of Judges Humphreys, Kelsey, and Beales rejected the argument made by a criminal defendant that the Commonwealth violated his constitutional guarantee of Due Process by prosecuting him on a theory that was inconsistent with the Commonwealth's theory of the same crime in an earlier case against someone else that resulted in a conviction. In between the two cases, new DNA test results indicated that the second defendant, and not the first, was the principal in the first degree. The decision refused to follow the "overly broad holding" in Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000).