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First writ of actual innocence issued

The Virginia Court of Appeals today issued a writ of actual innocence, the first petition to be granted since the law authorizing the procedure was enacted in 2004.

The action was expected because Attorney General Robert McDonnell acknowledged in his response to the petition that Darrell Andrew Copeland was improperly convicted of possessing a firearm after having been convicted of a felony.

The Virginia Department of Forensic Science issued a report after Copeland’s conviction that the “firearm” did not meet the statutory definition of a firearm because the weapon expelled a projective with compressed gas rather than by an explosion.

In a short opinion granting the writ, a three-judge panel of the court seemed to go out of its way to limit the extent of the ruling. It emphasized that it is not bound to accept what amounted to a confession of error by the attorney general’s office but concluded that issuing the writ was appropriate in light of the “the unique circumstances of the this case” even though its analysis “cannot be subordinated to the private opinions of litigants.”

“Such hesitation is particularly appropriate here given the need to ensure that the writ of actual innocence does not evolve into an omnibus substitute for the carefully crafted procedures of the habeas corpus writ … or impinge upon the Governor’s exclusive power over executive clemency.”

The Virginian-Pilot has an article with more background than the opinion contains.

By Alan Cooper

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