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4th Circuit invites governor to act in innocence claim

Gov. Ralph Northam (Mark Warner via Wikimedia Commons)

Gov. Ralph Northam (Mark Warner via Wikimedia Commons)

A Northern Neck man who says he was wrongly stigmatized for 35 years as the killer of a mother of two in Lancaster County could get faster justice from the governor than through the habeas corpus procedure, a federal appeals court panel suggests.

The 4th U.S. Circuit Court of Appeals appeared to lay the innocence claim of Emerson E. Stevens at the feet of Gov. Ralph Northam even as it cleared the way for a renewed round of federal habeas hearings in a April 15 decision.

Stevens was convicted of first-degree murder and abduction with intent to defile in 1986. His lawyers discovered documents in 2016 that appeared to show prosecutorial misconduct.

The three-judge panel said the evidence that emerged in 2016 was enough to open the gates to a new round of habeas proceedings. Writing separately, Judge Stephanie D. Thacker was more emphatic. She said “the evidence as a whole overwhelmingly supports a conclusion that no reasonable jury would have convicted Stevens.”

But a governor’s pardon could cut short the lengthy habeas process, the appeals court majority suggested.

The opinion is In re Stevens (VLW 020-2-095).

Newly discovered evidence

Mary Harding, 24, disappeared Aug. 23, 1985, leaving her two pre-school children alone in the family home in Lancaster County, according to the appeals court account and news reports. Her husband reportedly had been fishing that day, like many of the locals who made their living harvesting seafood.

Days later, when Mary Harding’s body was found in the Rappahannock River, strangled and anchored with a cinderblock, suspicion fell on another waterman, Emerson Stevens.

A jury convicted Stevens and he was sentenced at 164 years in prison. He found no relief with state appellate courts. Habeas appeals in state and federal courts were unsuccessful.

jail-cell-hands-inmate-prisonStevens languished for 20 years until pro bono lawyers picked up his case. Represented by the Innocence Project Clinic at the University of Virginia law school, Stevens finally caught a break. In 2016, a staffer at the Lancaster County sheriff’s office found a long sought box of files related to the prosecution in Mary Harding’s case. The sheriff turned the box over to Stevens’ new lawyers.

The newly found evidence may have proved critical. In 2017, Stevens was paroled. Since parole imposes significant restraints on a defendant’s liberty, Stevens was still eligible to pursue habeas relief, the appeals court said.

New habeas action allowed

The box offered materials that undermined the state’s case against Stevens, the 4th Circuit said. An expert who testified that tidal currents could move a weighted body four miles upstream was discredited by an FBI report in the hands of state police. A witness may have falsely testified about Stevens’ routine on the morning after the murder. Other exculpatory evidence was withheld.

“At this stage of the proceedings, we may not plod along any further,” the panel majority said.

The court cited the Antiterrorism and Effective Death Penalty Act of 1996 which limits federal courts’ authority to review state court convictions. Stevens had to clear a high bar to get a second shot at habeas relief, the court said. A petitioner must show the facts at issue could not have been discovered earlier through due diligence and the evidence as a whole would not support conviction. Stevens met the test, the majority concluded.


Thacker’s concurrence described the evidence in more detail. She said the prosecution’s failure to disclose an FBI report that contradicted the prosecution’s expert testimony was sufficient for a prima facie showing of constitutional error.

The same was true for alleged false testimony from a prosecution witness that appeared to suggest Stevens had time to dispose of the victim’s body on the day in question, Thacker said. She also pointed to the use of microscopic hair comparison analysis, a now discredited practice, and other problems.

“Based on each of these new developments – combined with the new facts Stevens discovered in the October 2016 box – I simply cannot see how any reasonable factfinder could convict in this case,” Thacker wrote.

Role of state executive

The three-judge panel had more to say about the future of Stevens’ innocence claim. The rigorous standards of the AEDPA ensure proper respect due to state courts, the majority said.

“But AEDPA also highlights the central role of the state executive. By limiting the power of the federal courts, AEDPA shifts the focus to those actors who possess the ultimate discretion to prosecute, pardon, and preserve convictions,” wrote Judge Julius N. Richardson for the court.

“I’ve never seen this before.”

— Deirdre M. Enright, director of the Innocence Project Clinic at the University of Virginia law school

“And, consistent with this great power, we expect executive actors to wield their authority in a manner consistent with our finest values and traditions,” Richardson continued.

The executive’s “power and responsibility both before and after conviction remain fundamental in our system of divided powers,” the 4th Circuit panel said.

“Still, AEDPA does create a limited role for us to review state convictions. And, at this stage, we find that Stevens has made the prima facie showing required to clear AEDPA’s first hurdle. So we authorize him to file his successive habeas application in the district court. What happens next is for the district court – and the state executive – to determine,” the court concluded.

Stevens’ lawyer said she was surprised by the apparent call for a governor’s intervention.

“I’ve never seen this before,” said Deirdre M. Enright, director of the Innocence Project Clinic at the University of Virginia law school. She said her team had not yet filed a pardon petition with the governor on behalf of Stevens, but – in light of the 4th Circuit comments – they plan to do so now.

“We are going to go to the governor, and we are going to ask. And we will show them this case,” Enright said April 21.

Jennifer L. Givens – also of the UVa Innocence Clinic – argued the case for Stevens before the 4th Circuit panel. The state was represented by Senior Assistant Attorney general Matthew P. Mullaghan.

The attorney general’s office did not respond to an inquiry about whether the state’s position had changed on the Stevens’ habeas effort.