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Legislature to consider bills aimed at easing exoneration for wrongly convicted


(by Frank Green, Richmond Times-Dispatch, January 13, 2013, Link)


Bills aimed at easing exoneration for wrongly convicted people with new non-DNA evidence will be considered in the General Assembly this session and could again be controversial.

The proposals were prompted in large part by the case of Thomas Haynesworth, an innocent man convicted in a series of 1984 attacks on women in Richmond and Henrico that new evidence strongly suggests were committed by a serial rapist.

Although efforts to clear his name were backed by prosecutors and Virginia Attorney General Ken Cuccinelli, Haynesworth won writs of actual innocence from the Virginia Court of Appeals by the narrowest of margins.

A recent Hampton case in which Johnathan Montgomery was convicted of sexually assaulting a 10-year-old girl who now admits she made the story up is expected to give momentum to amending the law this session.

A bill introduced by state Del. David B. Albo, R-Fairfax, would explicitly allow the attorney general to introduce evidence of innocence, not just guilt, in non-DNA writ cases — as Cuccinelli did in Haynesworth’s case.

It would also change the word “could,” to “would” in a key part of the current law: “that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

Cuccinelli said Thursday that in appropriate cases, his office should be allowed to bring evidence of innocence to the court’s attention. “The attorney general’s role should be ... to pursue justice, not purely to defend convictions,” he said.

“Thankfully, (the current law) didn’t stop us in the Haynesworth case. But that was 6-4 — that was as close as you can be to losing without actually losing,” he said.

He said the intent of the proposed changes is to clarify the threshold that an innocent convict has to prove, and how they have to do it. “Not an easier standard but that the process would be a lot smoother and more understandable,” he said.

Brandon L. Garrett, a professor at the University of Virginia School of Law, said Albo’s bill would provide “thoughtful, important, and much-needed changes to the writ of innocence standard in the commonwealth.”

“The new language recognizes that no judge can pretend to be certain that no juror could find guilt; instead, a judge should ask whether it is plausible that jurors would convict despite new evidence of innocence,” he said.

But even with those changes, Garrett said, Virginia would still have one of the more restrictive post-conviction laws in the country. “There is much work to be done to improve this statute,” he said.

Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, which represented Haynesworth, said that while the changes appear minimal, they are important.

“I think these changes — particularly the ‘could’ to ‘would’ — are really significant and are really going to help innocent people,” said Armbrust.

However, a key architect of the writ of actual innocence law, Ken Stolle, a former state senator and now the Virginia Beach sheriff, opposes changing the words “could” to would” and said he hopes the General Assembly will reject the amendment.

“It really changes the intent of the bill, the initial writ of actual innocence,” said Stolle, also the former chairman of the Virginia State Crime Commission.

The word, “could,” in Stolle’s view, means that appeals court judges must find the jury could not have found guilt in light of new evidence. Substituting “would” for “could” would allow the appeals court to substitute its judgment over the jury’s judgment.

“I think it is huge mistake,” he said. Such a change might have led the appeals court to grant a writ of actual innocence in the Dustin Turner case, Stolle contends.

Stolle said an intention of legislators when the writ law for non-biological evidence was enacted in 2004 was that a recantation of testimony would not be enough to win a writ.

Juries must decide at the time of a trial whether a witness’s testimony is believable, said Stole. “Under a ‘would have’ clause, then a simple recantation would come into play, and I think it could reverse the outcomes of some decisions.”

Turner and a fellow former Navy SEAL trainee, Billy Joe Brown, were convicted of the 1995 Virginia Beach slaying of a college student, each man implicating the other. In 2003 Brown changed his story and said that he alone committed the murder.

The appeals court, and later the Virginia Supreme Court, refused to grant a writ of actual innocence to Turner.

Armbrust disagreed with Stolle that the proposed change would have led to a different result in Turner’s case or in any other considered thus far. “We would have won a larger margin in Haynesworth ... but it would not have changed the others,” she said.

The current laws allowing for writs of actual innocence were enacted in 2001, for new DNA evidence, and 2004 for non-DNA evidence as a means for getting around Virginia’s 21-day rule, one of the toughest in the country.

The rule prohibits Virginia courts from considering new evidence of innocence if it is discovered more than 21 days after a case is final. Prior to then, innocent people had to rely on pardons from governors and not exoneration from a court.

Four writs of actual innocence based on non-DNA evidence have been granted since 2004 — two concerned legal issues, and Haynesworth’s two, which were granted without explanation in a 6-4 vote.

In many sexual assault cases, the primary, if not sole, evidence is the accuser’s testimony. And no writ has been granted in cases in which accusers recanted their trial testimony and said they lied against the accused.

Stolle said the one certain thing about people who recant their testimony is that, at some point, they lied. The issue is when they lied — during the trial or afterward.

But asked about the Montgomery case, Stolle said he believes that, “A recantation where the only evidence is the testimony that’s being recanted, then I think that reaches the level that is necessary for the writ of actual innocence.”

A bill introduced by state Del. Joseph D. Morrissey, D-Henrico, would provide for changes other than those proposed by Albo and Cuccinelli.

Among other things, Morrissey’s bill would allow a writ in cases where the new evidence, had it been available at trial, would have created reasonable doubt about guilt, as opposed to having to prove “that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

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