Roanoke Times

Recanted testimony not enough to free man
The Virginia Supreme Court ruled against reversing Aleck Carpitcher's sentence.

By Laurence Hammack

Recanted testimony from the only witness to testify against Aleck J. Carpitcher is not enough to free him from prison, the Virginia Supreme Court ruled Friday.

Carpitcher, who is serving a 38-year sentence for molesting a 10-year-old girl in her Roanoke County home, had filed a petition asking that his conviction be reversed in light of the girl's recantation less than a year after his 1999 trial.

In its first test of a 2004 law allowing such petitions, the Supreme Court held that Carpitcher failed to show that the recantation was material. In other words, there was no way to tell whether the girl lied in her trial testimony, when she said Carpitcher fondled her, or at a later hearing on his innocence claim, when she said she had made up the earlier story because she was mad at him.

Because he was unable to prove the recantation was true -- and therefore material -- Carpitcher, 50, now faces the prospect of serving out the rest of his life in prison based on the word of a witness deemed "no longer credible" by a judge.

Much of the high court's 18-page opinion dealt with technical interpretations of the 2004 law and how it was applied last year when the Virginia Court of Appeals denied Carpitcher's request for a new trial, a decision he appealed to the Supreme Court.
But the bottom line was the thorny question of what to do when a witness sworn to tell the truth later tells a different story.

"Recantation evidence is generally questionable in character and is widely viewed by courts with suspicion because of the obvious opportunities and temptations for fraud," the court ruled, a reference to concerns that witnesses might feel pressure to recant from the defendant's supporters or their own second thoughts.

Because Carpitcher's case was one of the first appeals involving the 2004 law, the impact of Friday's ruling will likely apply to other cases that follow.

"I think the bottom line is this just shuts down exonerations for defendants in Virginia who don't have DNA evidence," said Darryl Brown, a law professor at Washington and Lee University who has followed the case.

Carpitcher is "going to serve decades of time based on a witness who has recanted her testimony," Brown said. "That's certainly very troubling. And it's troubling that the court is saying that's going to be the state of affairs in Virginia from here on out."

George Somerville, one of several Innocence Project attorneys who represented Carpitcher, said Friday he was disappointed with the ruling but plans to consult with his client and colleagues about what to do next. One option would be to file a clemency request with the governor, he said.

Ever since the advent of DNA testing, a small but growing number of convicted felons across the country have been able to prove their innocence. At first, the trend was less pronounced in Virginia, where the 21-day rule prohibited newly discovered evidence from being considered unless it came to light within three weeks of the defendant's sentencing.

The General Assembly first passed a law allowing inmates with DNA evidence showing their innocence to bypass the 21-day rule, which at the time was the nation's most restrictive time limit. Then, in 2004, the legislature expanded the exception to apply to inmates like Carpitcher, who were convicted of crimes that left no biological evidence suitable for DNA testing but who asserted to have other grounds on which to stake a claim of innocence.

At a hearing two years ago, Carpitcher's alleged victim said she made up the testimony that led a jury to convict him of animate object sexual penetration and aggravated sexual battery.

The girl, who by then was 17, testified that she was angry at Carpitcher -- her mother's live-in boyfriend -- because he was spending too much time with her mother. Her only intent at the time, she said, was to get him out of the house.

With Friday's ruling, it appears that recantations are now off-limits -- unless they can be proved to be true. But once a witness tells a different version of what they said in court, their self-inflicted credibility problem makes it difficult to determine which version is the truth, Brown said.

"It's a standard that will be impossible to meet," he said.

Yet the General Assembly did not intend to free every convicted felon who can present evidence of a witness changing his or her story, the Supreme Court reasoned.

If there is no test applied to see if the recantation is material, the opinion stated, that "would defeat the legislative intent of restricting relief only to those individuals who can establish that they did not commit the crime for which they have been convicted."

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