The VBA Journal is the official publication of The Virginia Bar Association.
Issue link: http://vba.epubxp.com/i/80228
The Commonwealth of Virginia has issued writs of actual innocence based on new evidence, both biological and nonbiological, in decades-old cases. But is it enough? BY MOLLY MCCLENNEN I n the two decades that have passed since advances in DNA technology began resulting in exonerations in the late 1980s, 290 people convicted via the American judicial system have been proven innocent by genetic evidence. While scholars disagree on the number of innocent people convicted of crimes, Mary Kelly Tate, Director of the Institute for Actual Innocence at the University of Richmond, said it is generally agreed that the number is "higher than a civil society dedicated to civil liberties wants to have." Te exonerations have presented society and the legal community with an irrefutable record that the criminal justice system has flaws – flaws that Virginia and other states are working to correct. In 2004, then-Governor Mark Warner ordered a random audit of DNA evidence retained from old cases. Te project was expected to take 18 months and cost $1.4 million, but when the initial sample of 31 cases resulted in two exonerations, Warner ordered that all the samples obtained between 1973 and 1988 be tested. Te project is now in its seventh year.1 Te data have supported the innocence of 33 people convicted of sexual assaults during that period.2 One of the ways Virginia responded to the heightened awareness of wrongful convictions was by passing two laws in the early part of this century that allow people convicted of crimes who believe they have new, compelling proof of their innocence to petition the Court of Appeals of Virginia for a writ of actual innocence based on biological or nonbiological evidence.3 "Tere are few things society does more significant than taking someone's liberty," Tate said. "Tat's where the writs come in. Tey are society's recognition that if we make mistakes, we need to have vehicles to correct those mistakes. Improving the system that is charged with making decisions about liberty and life is a good thing." Te ballot measures amending Virginia law to allow defendants to petition for writs of actual innocence were approved in part as a response to Earl Washington's high-profile efforts to clear his name of a 1984 rape and murder conviction. According to DNA tests performed in 1993, Washington could not have committed the crime, but nothing could be done to exonerate him in the Virginia courts. As a result, Washington was not exonerated until 2000. Te difficulty he faced was due to Virginia's strong culture of finality in criminal rulings, that once a criminal case is resolved with requisite due process, society has the right to put the matter aside. At the time the laws establishing writs of actual innocence were passed, Virginia had one of the strongest 21-day rules in the nation.4 Even if new evidence was discovered, it could not be introduced if more than 21 days had passed since sentencing. Te only option left to a defendant seeking exoneration based on evidence unavailable at the time of trial was a pardon by the governor. Virginia's 21-day rule was not unusual. Before the 1990s, few states had avenues for defendants to introduce new evidence of their innocence to the courts. But because DNA evidence can be just as reliable as evidence introduced at trial – even years after the crime – states have started to relax their rules of finality to allow admission of new DNA evidence. Te case of Bennett S. Barbour, wrongfully convicted of rape 34 years ago, illustrates the importance of having a procedure in place to allow courts to consider new evidence. Te Supreme Court exonerated Barbour in May based on DNA evidence discovered in 2010 that excluded Barbour and implicated James Moses Glass Jr. Glass will now be tried for the crime.5 "You'd think that innocence would be a very important claim to litigate, and not one that has to be brought within three weeks of the trial," said Brandon Garrett, the Roy L. and Rosamond Woodruff Morgan Professor of Law at University of Virginia and author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong. "It's a prosecutor issue and a law enforcement issue as much as it is a civil rights issue." Overturning convictions based on nonbiological evidence is more challenging. Virginia has seen just two such cases since the nonbiological writ of actual innocence was established FALL 2012 t 29