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Rewrite actual innocence law, Cuccinelli says

Calling the exoneration of Thomas Haynesworth a “wake up call” for many in Virginia, state Attorney General Ken Cuccinelli sounded a note of caution Tuesday about prosecutors who fail to balance mercy with the desire to punish. He also called for a rewrite of the state’s actual innocence statute.

Haynesworth – who otherwise had no criminal record – spent 27 years in prison for three Richmond area rape convictions until DNA evidence showed his innocence. Cuccinelli supported Haynesworth’s bid for exoneration under Virginia’s “actual innocence” law.

“Virginia and its criminal justice system failed Thomas Haynesworth. That’s what happened,” Cuccinelli told members of the Roanoke Bar Association. “It really shook some of my prosecutors, because they count on all the double checks and the triple checks and the appeals and so forth, so they can go to bed and sleep well at night,” Cuccinelli said.

“It has given a lot of people across Virginia a lot to think about,” he said.

Cuccinelli said errors will happen, and the justice system needs to be alert for mistakes at every step.

“There are different types of prosecutors. Some use their discretion as it was intended, as a filter. Some just pull the trigger at everything that comes across their radar. Those of you who defend cases know what I’m talking about,” Cuccinelli said.

Cuccinelli said he has dealt with both kinds, and those in the middle.

“We need to systemically be cautious of those who just pull the trigger at everything,” he said, adding “We need to back up those who would exercise their discretion.”

That means, he said, incorporating mercy in the decision making on the front end, not the back end, recognizing that the process is a form of punishment.

Cuccinelli said he hopes the General Assembly will revisit the actual innocence law in light of the Court of Appeals’ Haynesworth decision, with its strongly worded dissents. The current language of the statute “will turn your mind in knots,” Cuccinelli said. “I’m wide open to suggestions on rewriting it.”

By Peter Vieth

One comment

  1. It may have been a “wake-up call” Ken Cuccinelli, but others have sounded the alarm for decades.
    In addition, he doesn’t seem to acknowledge those already sitting in our prisons who may also have been wrongfully convicted. Any rational evaluation of his actions would have to point that out and acknowledge that it isn’t only Haynesworth whom he could have assisted – but that he not only helped exonerate that one individual, but provided employment, when others cannot obtain any redress under current law, let alone obtain release, employment and high-level legal assistance for complete exoneration.
    What exactly has Ken Cuccinelli done for those currently languishing in our prisons as a direct result of our flawed criminal-justice system – the one characterized by Bob McDonnell as “working” when he chaired the House Courts of Justice Committee?
    This particular case may have given our ambitious AG food for thought, but it is late in the day that he recognizes errors or potential errors, and no rewriting of Virginia’s “actual innocence” law is likely to include any methodology to redress wrongs already committed under the current system – especially with respect to those convicted under the old “21-day rule.”
    When this individual turns over a new leaf, I will consider giving him more credit than is possible for this one very unusual and isolated case.

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