Appeals court: Change to innocence statute makes little difference
BY FRANK GREEN Richmond Times-Dispatch | Posted: Friday, May 30, 2014 10:30 pm
Last year, lawmakers changed one word in state law to try to help innocent, wrongly convicted people win exoneration.
At the urging of then-Virginia Attorney General Ken Cuccinelli, the General Assembly switched “could” to “would” in Virginia’s writ of actual innocence statute. The amendment took effect July 1, but the Virginia Court of Appeals has decided it makes little, if any, difference.
In its first case dealing with the change, a three-judge panel of the appeals court ruled earlier this month that: “It is clear that in choosing such a nuanced change of a single word … the General Assembly did not intend to alter the underlying purpose of the actual innocence statute.”
Critics who complained the amendment was window dressing for a law that sets the bar too high say the ruling validates their concerns. In the 10 years since the law was enacted, the only four people to win writs had the support of the Virginia attorney general.
Some are now reiterating calls for wider changes to the law, but state Del. David B. Albo, R-Fairfax, who introduced the “could-would” amendment, said that it may be as far as the legislature is willing to go.
“The court of appeals says it doesn’t make a difference. I guess if it (is appealed) to the Virginia Supreme Court maybe they could have a different interpretation, but that’s as far as we’re willing to go,” Albo said of the House Courts of Justice Committee.
The amendment was prompted by the highly publicized case of Thomas Haynesworth, who was wrongly convicted in a series of 1984 rapes and other assaults in Richmond and Henrico County committed by a serial rapist.
Even with the strong support of Cuccinelli and the commonwealth’s attorneys in Richmond and Henrico, Haynesworth barely won writs of actual innocence from the closely divided court of appeals.
Members of the majority in Haynesworth’s 6-4 split did not explain their vote, while minority judges wrote three strong dissenting opinions.
Asked for comment on the May 6 ruling, Cuccinelli said, “The difference between ‘would’ and ‘could’ is the difference between ‘certainty’ and ‘possibility.’ It clearly changes the standard, though only to a small degree — as noted by the court.”
But, he said, “if the court was saying in its ruling that there is no difference between the use of the two words, I would clearly disagree. It was intended by me and the legislators who worked on the amendment to modestly lower the bar for petitioners to prove their actual innocence.”
The appeals court’s ruling said the Attorney General’s Office, in arguing against the writ petition in question, “suggested that while the (new) standard was more lenient in theory, in practice it was essentially unchanged.”
On July 10, soon after the amendment took effect, James Altizer sought a writ of actual innocence using new affidavits he claimed proved his accuser lied and defrauded the court. He was convicted in 2009 of forcible sodomy in Montgomery County.
Reached last week, Altizer’s lawyer, Keith Diener of Alexandria, declined to comment on whether he would appeal to the Virginia Supreme Court.
The “would” change was made to a key part of the writ of actual innocence law enacted in 2004 for people with newly discovered, nonbiological evidence. Those with new DNA evidence seek writs under a 2001 law from the Virginia Supreme Court.
As amended, the 2004 law says that the new evidence, “when considered with all of the other evidence in the current record, will prove that no rational trier of fact would (from could) have found proof of guilt or delinquency beyond a reasonable doubt.”
The appeals court’s 12-page opinion from May 6 said the amendment provides, “in theory,” a more lenient standard and suggests the assembly intended to broaden to some degree the circumstances under which the court could grant a writ.
But the judges wrote that while “would” and “could” were meant to reflect different degrees of probability, no one could answer the court’s question on what difference, if any, the change meant to the law.
“We must interpret the amendment from ‘could’ to ‘would’ in a manner consistent with the statute’s purpose: to provide relief only to those individuals who can establish that they did not, as a matter of fact, commit the crimes,” held the three-judge panel.
Brandon L. Garrett, a professor at the University of Virginia School of Law and author of “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” said, “The legislature really did no more than make minor alterations to the statute.”
“A real overhaul to the statute is necessary to expand it and bring it in line with similar writs of innocence in other states,” Garrett said.
Steven D. Benjamin, a Richmond criminal defense lawyer, said last year’s one-word amendment was not the assembly’s fault.
As counsel to the Virginia Senate’s Courts of Justice Committee, Benjamin told lawmakers that the “could” to “would” switch would prove ineffective and that the advice lawmakers were getting from the Attorney General’s Office and some innocence advocates was wrong.
Speaking as a defense lawyer last week, Benjamin said the 2004 actual innocence law “is practically useless and needs reform … but it’s going to require more than an ineffectual word change.”
Of the four cases in which writs were granted, two concerned technical legal issues; one — Haynesworth’s — was indirectly supported by DNA; and the last involved convictions for crimes the accuser admitted never occurred.
Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, which led the effort to exonerate Haynesworth, said she supported the “could” to “would” change as well as changes that the assembly did not consider.
She said the word switch, while minimal, should have made a significant difference in at least some cases for technical reasons. “Unfortunately, the court of appeals … has shown once again that the statute needs to be overhauled so that those who are innocent can obtain relief,” Armbrust said.
Asked for comment on the court’s ruling, a spokesman for the current attorney general, Mark R. Herring, said, “The judges appear to have applied the revised standard in this case, but did not think the petitioner’s claim met that standard.”
In their ruling the appeals court judges cited one of the dissenting opinions in the Haynesworth case: “New evidence that merely raises doubt about the verdict or even second thoughts on the part of a prosecutor are not legally sufficient to issue a writ.”
DNA testing proved serial rapist Leon W. Davis Jr. committed two of the attacks in which Haynesworth was mistakenly identified. But no evidence remained for DNA testing in two other cases.
Authorities came to believe those victims were also mistaken when testifying that Haynesworth was their assailant, and Haynesworth sought writs of actual innocence with the support of Cuccinelli and prosecutors.
The dissenting opinion said judges and juries are best able to judge the veracity and accuracy of witnesses and other evidence — not appeals court judges. Therefore, the law “sets the bar deliberately high for (those) seeking a writ of actual innocence.”
Garrett said that while he was not surprised by the court’s May 6 ruling, “I was surprised to see that troubling (Haynesworth) dissent cited here.” He said the appeals court has adopted highly constrained interpretations of the writ of actual innocence.
Albo, chair of the House of Delegates’ Courts of Justice Committee, said, “I don’t know what else can be done.”
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