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Cuccinelli: Va. law should help clear names of wrongly convicted

(by Frank Green, Richmond Times-Dispatch, May 4, 2012, Link)

RICHMOND, Va. -- Virginia Attorney General Ken Cuccinelli is taking a look at a state law to try to make it less difficult for wrongly convicted people to clear their names without DNA evidence.

The narrowly won exoneration of Richmond's Thomas E. Haynesworth through writs of actual innocence based on non-biological evidence has shown that the law can work, Cuccinelli said in an interview Friday. But "to have to prove by clear and convincing evidence that no reasonable juror would find beyond a reasonable doubt that someone committed a crime is mind-numbing in the extreme."

"It needs to be a high bar, but the process by which it's handled and the hoops you have to get through, I think, are worthy of reconsideration," said Cuccinelli, who backed Haynesworth's bid for exoneration.

As a result, Cuccinelli said he believes the law needs some adjustment, and he plans to address the issue at the Virginia Bar Association meeting in July.

"We don't have a specific proposal at this time, but we do have a general concern that the law work as effectively as intended," he said.

Mary Kelly Tate, director of the Institute for Actual Innocence at the University of Richmond School of Law, said that in 2004, legislators — including Cuccinelli, then a state senator — wrote and passed the law with the best of intentions.

The problem is that it takes a "clear-and-convincing" standard and awkwardly couples it with a "beyond-a-reasonable-doubt" standard.

"Now, after eight years, we can look at it, see it in operation and see what needs to be fixed," Tate said, adding, "I think it is commendable and exciting that Attorney General Cuccinelli is willing to … look at it from a problem-solving, public-policy perspective."

A person with a strong case of actual innocence without DNA must have a realistic chance at exoneration, she said.

"Under the current statute, that person with a viable claim of non-biological evidence is just tremendously disadvantaged — and disadvantaged in a way that I can't imagine the legislators intended," Tate said. Haynesworth's case illustrates the weaknesses of the writ for actual innocence for non-biological evidence, she said.

The problem, said area lawyer Steven D. Benjamin, president-elect of the National Association of Criminal Defense Lawyers, is that as the law is now written and interpreted, it is impossible to win a writ without the blessing of the attorney general.

Even with the backing of Cuccinelli and prosecutors in Henrico County and Richmond, where Haynesworth was convicted in 1984, the Virginia Court of Appeals exonerated Haynesworth in a 6-4 split, the slimmest of margins.

* * * * *

A Virginia rule, the toughest of its kind in the country, bars evidence of innocence from being heard in a state court if discovered more than 21 days after conviction. Its purpose is to provide finality to criminal convictions, important to the system and to victims.

The remedy for convicted people with new evidence of innocence was a pardon from the governor, not a ruling of innocence from the courts. But after some high-profile DNA exonerations, in 2001 and 2004 the General Assembly created exceptions to the rule.

In the first, a writ of actual innocence based on new DNA evidence may be filed with the Virginia Supreme Court; in the second, a writ of actual innocence based on newly discovered non-biological evidence may be filed with the Virginia Court of Appeals.

Since 2004 when the non-biological exception was enacted, the Virginia Court of Appeals has granted such writs to just two people. The first case concerned a legal technicality, and the second was Haynesworth's.

Haynesworth served 27 years in prison for crimes he did not commit — the longest wrongful imprisonment to date in Virginia.

In 1984, Haynesworth was an 18-year-old with no criminal record walking down the street when he was misidentified by a victim in a monthlong string of assaults against women. In the end, five women identified him as their assailant.

He was tried four times, convicted three times and acquitted once. In 2009, DNA testing showed Haynesworth did not commit one of the rapes for which he was convicted, and implicated Leon W. Davis Jr., a serial rapist and former Haynesworth neighbor.

As a result, Haynesworth became the first person to win a writ of actual innocence based on DNA evidence from the Virginia Supreme Court. But no biological evidence remained for testing in his two other convictions.

Then DNA testing in the case for which Haynesworth was acquitted again cleared Haynesworth and implicated Davis, proving a second woman who positively identified Haynesworth on the witness stand had mistaken him for Davis.

In 1984, Haynesworth and Davis were close in age, were neighbors, resembled each other and shared the same blood type. The rapes and other crimes for which they were convicted were similar.

Police believe all four crimes for which Haynesworth was tried were committed by the same man; therefore, argued Haynesworth's lawyers, it must have been Davis.

Haynesworth passed lie detector tests and prosecutors in Henrico and Richmond backed his petition for writs of actual innocence based on non-biological evidence filed with the appeals court — and so did Cuccinelli.

The majority of judges on the appeals court ruling in Haynesworth's favor did so without explanation. The judges opposed to granting Haynesworth the writs wrote 25 pages of dissent.

Judge Larry G. Elder wrote that he had no doubt the majority was attempting to right perceived wrongs but, in order to do so, it must either authorize the attorney general to consent to a writ of actual innocence or ignore the plain meaning of the law.

"Here we have two victims of vicious sexual crimes, each of whom has positively identified Haynesworth as her attacker," Elder wrote.

Neither of the women has recanted, and Elder questioned how a majority of judges could conclude that "no rational trier of fact" could believe those identifications simply because DNA established two other women were mistaken.

"The fact that Haynesworth did not commit other crimes does not prove he did not attack these two victims," Elder wrote.

* * * * *

Eyewitness identification is persuasive with juries but, according to the Innocence Project, misidentification is the largest contributor to the 289 cases of wrongful convictions proven by DNA since 1989, and as happened in Haynesworth's case.

Cuccinelli said his office is studying the dissenting opinions.

"I don't necessarily think there should sort of be a trap door for when the commonwealth's attorney and the attorney general agree that this person was wrongfully convicted," he said.

Ordinarily, Cuccinelli's office defends convictions but, in Haynesworth's case, the two sides agreed he was innocent. Cuccinelli said he did not have a problem with the appeals court requiring everyone — his office included — to meet the legal standards.

"I think that our perspective is worthy of great weight, but it should not be determinative," he said. "If there's good enough reason for everybody to agree, then you'd think your chances of getting over the legal hurdles would be pretty good."

Cuccinelli said Haynesworth's case was a reminder for his office and for prosecutors "that the system isn't perfect, and neither are we."


    Jens Soering is a German author who spent more than 33 years in American and British prisons for a double-murder he did not commit.

    In 2016 DNA tests revealed that blood at the crime scene, which had once been attributed to him, actually belonged to two other men.

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