Tuesday, September 3, 2013

September 3, 2013 Virginia State Crime Commission Meeting, Prior Sex Offenses Admissible in Evidence HB1766 / SB1114 and Writs of Actual Innocence HB1919 Discussed

Today was the first of three Virginia State Crime Commission Meetings for 2013. 

I previously posted the agenda for today’s meeting for everyone to be aware of the topics. 

The VSCC Power Point Presentations from today’s meeting are now available to view for Prior Sex Offenses Admissible in Evidence and Writs of Actual Innocence the two topics that I was planning to address during the public comment portions. 

They do not video the meetings and the audio that I have is too big of a file to load so I am sharing the two statements that I gave to the Commission Members today with all of you here. 

Statement #1 in reference to:
Provides that in a criminal case in which the defendant is accused of an offense of child sexual abuse, evidence of the defendant's conviction of another offense or offenses of child sexual abuse is admissible and may be considered for its bearing on any matter to which it is relevant.
Both Bill versions were amended during 2013 G.A. session from ALL sex offenses to only crimes against minors.

Commission Members, 

New laws are supposed to strengthen our Democracy, not weaken it. But this proposal does just that. 

Our Justice System prohibits a complaining witness’ character or sexual history to be discussed or debated. Even if the plaintiff has previously accused someone of sexual misconduct, we claim it’s irrelevant and prejudicial, but yet here we are trying to flip the coin on the defendant by injecting bias into the courtroom. 

For years the Virginia Legislature has been making the standards of guilt easier. 

If this proposal becomes law….would the defendant be permitted to testify in opposition to the prior conviction or would this be considered “irrelevant” by the State? It seems to me that any mitigating circumstance in the prior conviction must be allowed as it’s being held up as evidence in the new case. And if this occurs the Commonwealth must allow the defendant the right to face the original accuser even if they took a plea deal. The Constitutional issues with this proposal are countless. 

Why is this change even needed? 

It’s NOT because the recidivism rates for Registered Sex Offenders is high.  

In fact the re-offense rate for convicted “sex offenders” is the second lowest of ALL crimes.
(I have copies of the national recidivism rate in descending order if anyone is interested) 

I questioned how many current sexual statutes ALREADY include a “second or subsequent offense”. I found 16 different acts where the Commonwealth is already charging and sentencing defendants with past convictions much more harshly than a first time offender.  (I have copies of these crimes if anyone is interested) 

What is the real goal here? 

I think, because Sex Crimes stir up such deep emotions that completely unwarranted proposals are routinely submitted as a platform for votes. After all who would dare defend “sex offenders”? 

Justice is supposed to be blind but when it comes to Sex Crimes it seems we are willing to throw away all checks and balances put in place to prevent assumptions, personal opinions or agendas from contaminating a fair system.  

Let me give you a real example of presumed guilt because of a prior conviction.  

Last October in Bedford County VA a man had been approaching children at a bus stop, attempting to lure them to his home. The Bedford police and the parents concluded that it must be a Registered Sex Offender so they went to the registry and picked a photo that came close. The man they selected had an alibi but he was still held without bond and charged with a felony for trespassing on school property, even though a bus stop is not school property. Days later the real perpetrator re-approached the bus stop and with the Registered Offender sitting in a jail cell, the authorities had NO choice but to conclude they had the wrong man 

This is where faulty rationale about those listed on the Virginia Registry have led us. The State ONLY had a misidentified man with a prior sex offense and THAT was enough to deny him bond, to charge him with a crime that doesn’t apply to other citizens and to presume he was guilty. Imagine if the real perpetrator had gone into hiding, if this proposal was in place a finding of guilt for the wrongly accused man would have been certain. 

The job of the Prosecution is to prove guilt beyond a reasonable doubt; the burden of proof lies with the one who declares, not who denies. If the state believes this proposal is necessary to get a conviction; then we are pursuing citizens who shouldn’t be prosecuted.   

We already allow an accusation alone as the only evidence in many cases and the fact is an accusation is NOT proof! Let’s not make a second mistake by adding prior convictions to that list. 

This proposal would irreparably damage our system of justice whose very foundation is the presumption of innocence. 

Thank you

Statement #2 in reference to:
Provides that the attorney for the Commonwealth of the jurisdiction wherein a person was convicted of a felony may join in a petition for a biological or nonbiological writ of actual innocence. When such petition is so joined, the petitioner may file a copy of the petition and attachments thereto with the circuit court that entered the felony conviction and move the court for a hearing to consider release of the person on bail pending a ruling by the appellate court on the writ.  

Commission Members, 

Innocent people do get convicted in our state, it is a sad truth. 

Virginia allows an accusation alone with no corroboration to convict; this is what happened to Jonathan Montgomery.  

We’ve created a system where it is all too easy for a vindictive, selfish, confused or scared person to brand innocent citizens a “Sex Offender” for life. 

We will never know how many Registered Sex Offenders in Virginia have been wrongfully convicted. 

We only know of the Exonerated Offenders where DNA was uncovered (Thomas Haynesworth, Bennett Barbour, Marvin Anderson, Arthur Whitfield, Earl Washington and the Norfolk 4) … because Virginia’s 21 Day Rule ONLY allows newly discovered biological evidence to be admitted after three weeks from sentencing. Yet 80% of criminal cases don’t have any DNA evidence. 

We’ve adjusted our statutes to allow victims of abuse to come forward many years later.

But when it comes to a recant its 21 Days or NOTHING! The very same person that the State based their entire case upon is ignored. It took Elizabeth Coast more than 4 years to gain the courage to right the terrible wrong she created and then the bureaucratic red tape of our statutes became a huge hurdle to get Jonathan Montgomery released. If he had already been released when she finally came forward…..I wonder if he’d have any ground to clear his name at all. 

The statute (§§ 19.2-327) for this proposal neglects a large segment of citizens and I am here to ask that they not be forgotten……the misdemeanor sexual convictions. 

A misdemeanor sexual offense is nothing like a misdemeanor drug, theft or assault conviction. 

Most misdemeanor sexual offenses mandate the person to register as a Sex Offender for a minimum of 15 years before they can petition to be removed, and the majority of those are denied.  

The registry is considered administrative, non-punitive by those not listed…..But those who are affected by the label…..suffer daily and for the Commonwealth to force an innocent person to endure this pain simply because it wasn’t a felony is truly cruel and unusual punishment. 

For a minimum of 15 years they are significantly hindered in obtaining an education, housing and employment. In addition their movement in public places and their participation in their family’s lives have been written into Virginia Code so that ANY violation results in a felony, even though the original crime was a misdemeanor! 

Defenders of the archaic 21 Day Rule perpetuate the myth that our criminal justice system almost never convicts an innocent person, that they are the exception AND that frivolous claims of innocence would cripple our court system. This has not been the case in other states with broader opportunities. 

I am asking the Commission to expand the recommendation for the Writ of Innocence, to eliminate the 21-Day Rule AND to include misdemeanor sexual offenses. 

There should be no deadline for the truth OR on justice being served in our state. Every recant should be taken seriously and investigated thoroughly as would be done with every new accusation of abuse no matter how old. 

The alternative is to allow liars a license to harm innocent men and boys, undermining our system of justice and creating total mistrust among our citizens. 

Thank you

Now the question is will the Crime Commission vote to go forward with the proposal of submitting a prior conviction or even an old accusation/investigation that did not result in a conviction (as one member was pushing for during the meeting) as admissible evidence at the December 2, 2013 meeting resulting in a new bill for the 2014 General Assembly session beginning on January 8, 2014 or will they decide to “leave it on the table”? Let’s hope for the latter. 

The next Virginia State Crime Commission meeting is schedule for November 14th and the draft agenda should be available on their website 2-3 weeks prior. 

Mary Devoy

Lawmakers Advocate Criminal History as Evidence in Child Sex Cases, September 3, 2013

Sex Offense Cases & Prior Convictions, September 3, 2013

Va. panel hesitant on bills to ease up on child prostitutes, people forced into prostitution, September 3, 2013

Crime commission looks to help wrongly convicted clear names , September 4, 2013