Drug conviction stands despite tainted warrant

The discovery that a former Richmond police officer may have lied to obtain search warrants for drug suspects has helped undo convictions for 11 criminal defendants. But one man who pleaded no contest in 2010 to marijuana possession with intent to distribute will keep his felony record.

The Supreme Court of Virginia said a circuit judge was not wrong to reject a joint motion to vacate the man’s conviction.

The court’s unpublished order in Terry v. Commonwealth (VLW 018-6-026) is the latest development in the wake of Officer Jason Norton’s work as a detective. At least nine defendants convicted based on Norton’s evidence have had convictions vacated. At least two may have recovered settlement money for their trouble. Lawsuits involving seven defendants remain pending.

In Terry’s case, the state switched positions when the case moved from the trial court to the appellate courts. The Richmond commonwealth’s attorney’s office had joined Terry in asking Judge Bradley B. Cavedo to vacate Terry’s conviction, but the state attorney general’s office opposed exoneration on appeal.

Informant confusion

Terry was arrested after a search of a Richmond home based on a search warrant obtained by Norton. Terry pleaded to possessing more than a half-ounce but not more than five pounds of marijuana, with intent to distribute. He received a five-year sentence with all but two months suspended.

Word surfaced in 2015 that there were problems with the affidavits Norton had prepared to persuade judges to issue search warrants. The descriptions of informants Norton worked with were inconsistent.

“In some cases, Norton provided different resumes for the same informant, and in other instances, he provided the same resume for different informants,” according to a federal lawsuit. “In either case,” the complaint read, “Norton was lying about the identity or reliability of his informants.”

The only reasonable conclusion “is that Norton was simply making the resumes up,” the suit said.

Convictions vacated

Acknowledging Norton’s search warrants were likely tainted, Richmond prosecutors filed motions to vacate conviction in 15 cases involving Norton search warrants. Two additional motions were filed by defense counsel, according to Richmond Assistant Commonwealth’s Attorney Patrick W. Dorgan.

To date, 12 convictions involving 11 defendants have been vacated. Three additional motions have not yet been litigated while the Terry case was pending, Dorgan said.

In Terry’s case, prosecutors pointed to specific problems with the search warrant affidavit. A statement about the informant’s prior cases was inconsistent with a prior statement by the informant. The informant claimed Terry was selling heroin, but no heroin was found. Terry said the marijuana bust was his only felony conviction.

Cavedo ordered an evidentiary hearing. He was shown five Norton search warrants with illogical variations in the informant’s history of working with police. A police lieutenant testified he found discrepancies between police records and Norton’s affidavit in Terry’s case.

Cavedo balks

Cavedo said the evidence failed to establish the clear and convincing proof of fraud needed to vacate a five-year-old conviction. He described the evidence as “inconclusive” and “speculative.”

He looked to Terry’s admissions at the plea hearing. “The evidence supported a finding of guilt, and Mr. Terry pled no contest…. [T]he fact of the matter is he was guilty, and I don’t think anyone is suggesting that he wasn’t. Whether this affidavit concerning the confidential informant is the false one or the others are false or they’re all false, I cannot say,” Cavedo said.

Terry took his arguments to the Court of Appeals as a criminal appeal, but that court concluded the motion to vacate a conviction was a civil action and transferred the matter to the Supreme Court. That was the right call, according to the high court.

“Here, the motion to vacate Terry’s conviction was filed well after his conviction was final under Rule 1:1. The collateral attack on his conviction is not part of the criminal proceeding and is civil in nature,” the justices said.

No error

The court also decided Cavedo did not err in finding that fraud was not proven by clear and convincing evidence.

“The parties argued that Detective Norton’s affidavits in support of the search warrants contained fraudulent information regarding the confidential informant. However, the trial court declined to find that the affidavit in Terry’s case was actually false,” the court wrote. “The trial court’s finding was neither plainly wrong nor without evidence to support it.”

Civil lawsuits

Norton has not been charged in state or federal court, according to a review of online records. The investigation of his activities was referred to the Virginia Beach commonwealth’s attorney’s office. A spokesperson said the case remains under investigation with the assistance of the Virginia State Police.

Seven defendants convicted on Norton’s evidence sued Norton and the City of Richmond last year demanding $5 million each for the alleged violation of their civil rights. Those two lawsuits with multiple plaintiffs remain pending. U.S. District Judge M. Hannah Lauck is expected to rule on motions to dismiss. Those claimants are represented by a legal team led by Mark J. Krudys of Richmond.

Two others convicted of drug offenses on Norton’s evidence filed individual federal civil rights lawsuits against Norton this year. Those cases appeared to have recently settled, with the parties stipulating to dismissal. Seth R. Carroll, counsel for one of the plaintiffs, declined to comment. The other plaintiff was represented by David L. Epperly Jr., who did not respond to a request for comment.

Terry was represented by K. Scott Miles of Chesterfield, who did not respond to a request for comment. David P. Corrigan, who represents Norton in the civil lawsuits, did not respond to a request for comment.