February 2, 2011
Prosecutors back exoneration for defendant in 1984 rapes
By Frank Green
“I lost a lot of friends … a lot of family didn’t believe me,” said Haynesworth, the youngest of five children. “I thank God for my mother and my sisters. They’ve been my rock. They’ve been my foundation.”
His mother, Delores Haynesworth, 67, who sent Thomas out to get groceries for Sunday dinner almost three decades ago, never doubted his innocence. “I’m looking forward to him coming home,” she said.
Haynesworth’s case for innocence, reported in the Richmond Times Dispatch as it developed over the past two years, is the most tangled yet uncovered by the Virginia Department of Forensic Science’s post-conviction DNA project.
The massive effort aimed at exonerating those wrongly convicted of crimes from 1973 to 1988 was ordered in 2005 by then-Gov. Mark R. Warner after five men were cleared of rape convictions by testing evidence discovered in the old case files of forensic serologists.
Haynesworth, 45, long blamed the crimes on Leon W. Davis, 46, a serial rapist who called himself the “Black Ninja.” DNA testing in recent years has shown that Davis committed two of the assaults in which victims had misidentified Haynesworth.
The two men bore a resemblance and were neighbors in the East End, where a yearlong series of similar attacks on young white women by a young black serial rapist, or rapists, began on Jan. 3, 1984, and ended that December with Davis’ arrest.
If Haynesworth is not innocent, then two serial rapists who crossed racial lines — in nine out of 10 rapes the victim and perpetrator are of the same race — would have been at work in the same part of town at the same time. Experts and Haynesworth’s lawyers say that’s an unlikely possibility.
Haynesworth is represented by the Mid-Atlantic Innocence Project, the national Innocence Project and the law firm of Hogan Lovells in Washington, all of which helped investigate the case and draft the petitions for writs of actual innocence.
The petitions were to have been filed today, but Tuesday the Innocence project said they may be turned in Thursday or later.
“I’m 100 percent backing it,” said Richmond’s Commonwealth’s Attorney Michael N. Herring. “There’s no doubt in my mind that there is tons and tons of reasonable doubt, so that no jury would convict this man in the face of all that we now know.”
In addition, said Herring, who has met Haynesworth, “If someone were to say to me, ‘Does your gut, or do your instincts tell you that an innocent man’s been sitting in prison all these years?’ I would have to say, ‘Yes.’
“I think as tragic that it is he’s been in jail, I’m thankful that the system and the process, flawed though it may be, seems to be vindicating him,” he said.
Henrico Commonwealth’s Attorney Wade Kizer also has serious concerns about the conviction in Henrico. “I hope that he gets released,” Kizer said.
It all started that Sunday morning in 1984 as Haynesworth walked to nearby Trio’s Supermarket on Williamsburg Road and a victim driving by spotted him and believed he was the man who had attempted to abduct and rob her at knifepoint a week earlier.
Haynesworth says a police car pulled up beside him, an officer told him a woman’s house was broken into and asked if he would mind the woman taking a look at him.
Another police car arrived soon after with the victim, who identified him, and he was arrested. Although it was from that first identification that all the others flowed, charges in that case were never prosecuted.
Of the four other women who later identified Haynesworth, one was sodomized; another was raped and sodomized; one was abducted but able to thwart the attacker; and a high school student was abducted, raped and sodomized.
Haynesworth was tried four times, acquitted in one trial and convicted in three — twice in Richmond and once in Henrico. In the Henrico case, the jury told the judge it was deadlocked before finally returning a guilty verdict.
Few listened to his claims of innocence.
Then, in 2009, DNA testing conducted in the post-conviction project failed to find his genetic profile — but identified Davis’ — in semen left by the assailant in the Jan. 3, 1984, rape at an East End day-care center for which Haynesworth was convicted.
“There was never a doubt in my mind. I remember the feeling the first time I saw him in person, in court. The emotions that came over me were so strong. I knew he was the person,” said the now 47-year-old woman raped at knifepoint in that attack.
She now realizes she was wrong. “I hope that… he will be released soon. We cannot erase the past, but we can learn from it and there is so much to be learned from this experience,” she said Tuesday.
Experts say Haynesworth’s case highlights the risk of victim/witness misidentification, particularly when the perpetrator and victim are of different races.
According to the Innocence Project, victim/eyewitness misidentifications contributed to 75 percent of the 265 convictions across the country proved wrongful by DNA testing. Peter Neufeld, co-director of the Innocence Project, said almost half of them were black men misidentified by white rape victims.
And of the 265 cases, only three involved multiple victim misidentifications. Haynesworth’s is the fourth.
The victims in Haynesworth’s two remaining convictions could not be reached for comment. Herring, however, indicated that they are not as comfortable with the efforts to clear Haynesworth as the victims in the cases where DNA has proven misidentification.
But, said Herring, “I stand by my position … in order for him to be guilty, he’s got to be a guy who gets wrongfully accused of two rapes, then passes polygraphs on two others after sitting in jail for all this time.”
“He’d almost have to be Hannibal Lecter to pull that off,” he said.
As a result of the 2009 DNA testing, Haynesworth became the first person exonerated of a crime by the Virginia Supreme Court through a writ of actual innocence based on DNA.
No biological material remained for testing in his two other convictions — a Richmond attack and the brutal sexual assault of a high school student in Henrico.
But his lawyers discovered that there was evidence that could be tested in the Richmond sexual assault for which Haynesworth was acquitted. They gambled, hoping DNA testing of semen in that attack would again implicate Davis, and asked the court for testing.
“It’s the first case in the country where we’ve ever asked to have DNA testing done in a case where our client was acquitted,” said Neufeld. The unusual request was approved by the Richmond Circuit Court, and testing proved that another victim had mistaken Haynesworth for Davis.
The investigation into Haynesworth’s claims continued with the assistance of Herring and Kizer. Neither man was in office at the time of Haynesworth’s prosecutions.
Among other things, Haynesworth passed lie-detector tests — one conducted by a former FBI polygrapher and the other by the Virginia State Police — concerning his innocence in the two remaining convictions he hopes Virginia Court of Appeals will toss out.
In Neufeld’s opinion, “the case illustrates a major shift on the part of prosecutors. Ten years ago, we would not have gotten the kind of cooperation from both Mike Herring and Wade Kizer that we got on this case. … They deserve credit for that.”
The petition will also be supported by the Virginia attorney general’s office, but spokesman Brian Gottstein said officials would not comment “until the case moves forward.”
Davis was arrested Dec. 19, 1984. By April 1985, he had been indicted on 35 charges stemming from assaults on 14 women in Richmond and Henrico. He is now serving six life terms and has declined requests for interviews in recent years.
Neufeld said the problem of misidentification, particularly in cross-racial crimes, was well-known in law enforcement long before these cases. “But everybody ignored all that, or gave it short shrift,” said Neufeld.
Police should have been concerned when the rapes continued after Haynesworth’s arrest, Neufeld said. “The fact that the community needed closure, allows people to wear blinders,” he said.
Haynesworth said that when he was first misidentified almost 27 years ago, he could not believe what was happening. “I said, ‘I’m not the one.’“
His mother could not believe it, either. “He called me from the police station that afternoon. I wondered what happened. He always goes somewhere, he always came straight home.”
Haynesworth said that as the charges piled up, “I kept saying this can’t be for real. I didn’t do nothing. I don’t know why they fingered me.”
He said he is not angry with the victims. “It was an honest mistake,” he said. “What they [went] through, you know, anybody could make a mistake.”
He has been thinking about plans after his release. “I’m a very good auto mechanic,” he said. “What I want to do is kind of open a little place, a business, something like that.”
Haynesworth said he also would like to work with troubled teens. He said he can give them a pretty good idea of what life is like in prison.
Herring cautioned that a final step remains. “I hope it ends well. We’re still sort of out there in no-man’s land because it’s up to the court to do the right thing.”
||Truth in Justice