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Lost Indictment Not ‘Fraud on Court’

A Norfolk Circuit Court denies an incarcerated murder defendant’s motion to Set Aside Judgment for Fraud on the Court based on his allegation that the clerk’s office has lost the order book that would have recorded his indictments.

An affidavit of the chief deputy clerk of this court indicates the order of which petitioner complains was inadvertently destroyed some time before 2005.

The first clause of Subsection D of Va. Code § 8.01-428(D) has lately become a favorite of prisoners attacking their convictions after a petition for a writ of habeas corpus has been denied or the limitations period of Code § 8.01-654(A)(2) has expired. But does it apply to criminal cases? The commonwealth’s position is that the clause has been applied to criminal cases.

This remedy is of medieval origin. The power of a court of equity to enjoin the enforcement of a judgment obtained in an action of law has been recognized for centuries, both in England and Virginia.

Even though it seems Virginia courts of chancery often enjoined judgments or granted new trials in actions at law, in the years following our independence, older cases gradually imposed restrictions on the practice. The leading modern case is Charles v. Precision Tune, 243 Va. 313 (1992), which established five elements of the “independent action in equity:” 1) a judgment which ought not, in equity and good conscience, to be enforced; 2) a good defense to the alleged cause of action on which the judgment is founded; 3) fraud, accident or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; 4) the absence of fault or negligence on the part of defendant; and 5) the absence of any adequate remedy at law. The terms used here do not apply to the criminal law.

Furthermore, as a defendant will be present throughout his trial for a felony (unless he waives his righto be present or is removed from the courtroom for disruptive conduct), it is difficult to imagine how he could be prevented from obtaining the benefit of his defense (unless the commonwealth commits extrinsic fraud, which would render the conviction void). If defendant was not present during the trial it would only because of his own fault.

A convicted criminal defendant also has other legal remedies: an appeal, a petition for a writ of habeas corpus, and a petition for a writ of actual innocence. Finally, a void criminal conviction can be attacked by a motion – a remedy at law – more than 21 days after entry of final judgment.

I have never read or heard of any Virginia case in which a court or equity granted an injunction to vacate a criminal conviction and order either a new trial for or the release of a prisoner. The absence of such a case over centuries is conclusive proof to me that no such jurisdiction in equity exists in Virginia.

The failure of a clerk of court to record in an order book an indictment returned “a true bill” and signed by the foreman or his loss of the order book is not extrinsic fraud. Neither act would prevent a fair submission of the case to the court.

Having failed to establish either his entitlement to file the “independent action in equity” or fraud on the court, the court nonetheless shall consider petitioner’s pleading as a motion to set aside a void conviction under Matthews v. Commonwealth, 216 Va. 358 (1973).

This matter is not a habeas corpus proceeding, nor is it a direct appeal from a judgment of conviction. Because of the holding in Hanson v. Smyth, 183 Va. 384 (1944), I need not determine whether Rule 3A:9(b)(1) applies.

Turner v. Commonwealth (Martin) No. CL 14-9380, June 12, 2015; Norfolk Cir.Ct.; Robert L. Turner, pro se; Lauren C. Campbell, AAG. VLW 015-8-111, 6 pp.


VLW 015-8-111

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