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Reforms of ‘actual innocence’ process advancing in Assembly

Virginia’s “relief valve” for the wrongly convicted could be opened a notch or two with changes now moving through the General Assembly.

Supporters – led by Virginia’s attorney general – say reforms to the state’s “actual innocence” process could make it easier for those convicted of crimes to use new evidence to try to overturn their convictions in the appellate courts.

Those changes are aimed, in part, at smoothing the bumpy road encountered by Thomas Haynesworth, the man cleared of rape charges after spending nearly 30 years behind bars. Despite universal agreement among prosecutors and defense counsel about his innocence, Haynesworth waited 10 months for court action, only to see his bid for official exoneration barely win approval from the Court of Appeals of Virginia.

Virginia’s actual innocence process is the only avenue for someone wrongly convicted to avoid the barrier of the state’s 21-day rule, which generally bars any consideration of new evidence more than three weeks after a final order.

A bill to amend Virginia’s actual innocence laws was unanimously approved by a House Courts subcommittee Jan. 16, along with a companion measure that would extend the protections of the actual innocence process to juvenile defendants.

The two proposed amendments are subtle – one involves changing the word “could” to “would” – but advocates say the tweaks should make a significant difference in the standard appellate judges will apply to scrutinize future cases.

The reform process is far from clear cut, supporters say.

“It’s hard to do. It’s really complicated to keep a 21-day rule and have something like an actual innocence opportunity,” said Attorney General Ken Cuccinelli in an interview.

In Haynesworth’s case, the Court of Appeals granted the convict’s writ of actual innocence by a 6-to-4 vote, accompanied by three sharply worded dissents that claimed the facts of his case fell well short of the actual innocence standard.

While House Bill 1432 was crafted with the Haynesworth dissenters in mind, Cuccinelli acknowledged it would not rewrite the law specifically to achieve unanimity in that case. “We’re trying to address some of the concern expressed there, but I wouldn’t begin to venture to say it gets all of it,” Cuccinelli said.

Nevertheless, Cuccinelli and other reform advocates say the change from “could” to “would” is important. Part of the law requires a finding that no rational trier of fact “could have found proof of guilt beyond a reasonable doubt.” With the proposed change, it would read “would have found proof.”

“I don’t think this is some little teeny tiny tweak. I think the ‘would-could’ difference amounts to a third standard,” Cuccinelli said. “I think we’re going from a near impossibility to a reasonable juror standard. It’s a lot more familiar legal standard to judges and lawyers. Frankly, it’s a lot more reasonable standard to both articulate and use in an actual innocence proceeding.”

Cuccinelli analogized that – as he stood before a committee – he “could” be hit by asteroid, but if you asked, “would an asteroid hit me, the answer is undoubtedly ‘no.’ There is a difference,” he said.

“We wanted to move away from the near-impossibility standard,” Cuccinelli said. “It’s still a very high standard,” he said, but not as tough as the current law.

The other amendment would expressly allow the state to join a defendant’s motion for exoneration. The law as written does not contemplate that the state could end up on the same side as the defendant.

“I think both changes in the language are really important and thoughtful changes,” said University of Virginia law Prof. Brandon L. Garrett, who has researched DNA exonerations. He said most states have “broader relief valves” than Virginia for proving wrongful convictions.

Cuccinelli’s proposal is “very necessary,” agreed Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project in Washington. The amendments “will do a good job of allowing innocent people to be released when they’ve proven their case, but not letting people out when they haven’t,” she said.

While praising the proposed changes, Garrett said there are other ways the law could be improved. Virginia’s actual innocence standard for non-biological evidence excludes cases where the defendant pleaded guilty. “We do know innocent people plead guilty,” Garrett said.

Another criticism of the current law – one shared by Cuccinelli – is the complex standard the appellate court must apply. It combines in one sentence a “clear and convincing” test with a standard of “beyond a reasonable doubt.”

“It’s a really Byzantine standard,” Garrett said.

Nevertheless, those who have studied the law say simplifying that standard is no easy task. “It’s really, really hard to fix that last part without just starting over,” Armbrust said.

Another reform favored by Cuccinelli would allow expedited review when the state joins in the petition for a writ of actual innocence. That, too, is a project for another day, supporters said.

Advocates for the wrongly convicted say the changes being debated at the Assembly would nonetheless preserve Virginia’s high barrier for exoneration.

“It’s still a statute that’s quite conservative and quite finality-directed,” said Mary Kelly Tate, a University of Richmond law professor who directs the school’s Institute for Actual Innocence.

Changes must come “one step at a time,” Tate said.

Cuccinelli said he is trying to reform the process in “reasonable bites.”

“It isn’t a question of what I’d like to do, it’s what do I think we can get the votes for,” he said.

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