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Tuesday, June 14, 2016

Action Item: Eliminate Virginia’s 21-Day (to Recant) Rule AND Add Sexual Misdemeanors to Virginia’s Writs of Actual Innocence

Convicted but innocent...in Virginia too bad
It's called the 21-Day Rule

#11 of my 28 Legislative Fixes (or Goals) has always been to eliminate Virginia’s 21- Day (To Recant) Rule and #16 has always been to add sexual misdemeanor convictions to Virginia’s Writ of Actual Innocence. 

These two goals are closely related, they are both unnecessary barriers that the Virginia Legislature and Administrations have willfully ignored so that justice can NEVER be served for innocent people in the Commonwealth. 

What is Virginia’s 21-Day Rule? 
 

Currently an accuser or a witness is only allowed 21 days to recant their claim of a crime against another person in Virginia. Any longer than 21-Days and the State of Virginia will not accept their recant, so the conviction, imprisonment , the requirement to register as a public Sex Offender and abide by all the Registered Sex Offender (RSO) regulations and restrictions or face a new felony stands. The very same person that the Commonwealth previously based their entire case upon is now ignored if they recant. In Virginia ONLY the discovery of DNA can reopen a previous criminal conviction. 

Just Google the names Edgar Coker Jr. and Jonathan Montgomery and you’ll see how the current 21-Day Rule has destroyed Virginians lives. In Edgar’s case the recant was ignored by the State so the UVA Innocence Project spent 6 years to prove he had inadequate representation, which was the only legal maneuver to get Edgar off the VSP Registry. As for Jonathan Montgomery he was still in prison when Elizabeth Coast recanted and the Virginia Governor and Attorney General went back and fourth for days on how they could legitimately free Jonathan because of the 21-Day barrier. Jonathan was freed but remained a Registered Sex Offender for over a year while he had to file a Writ of Actual Innocence in court and wait for a judges ruling if his conviction would be overturned or not, it was.  

Innocence is NOT a defense in Virginia if it’s 22 days or more since the conviction. 

So what could be done with Virginia’s archaic 21-Day law? 

Well I think there are three possible solutions
  1. Repeal the 21 day limit entirely
  2. Add witness/victim recants to the list of exceptions, as DNA was years ago
  3. Amend it from ‘days’ to ‘years’ so the Rule remains intact (for those Virginia Legislators that believe it’s a crucial part of our system) but time is not the enemy in justice being served.
AND…………the Virginia Legislature should NOT exclude Virginians who took a plea deal. More than 94% of Virginia criminal cases are settled with a plea deal (Alford or Guilty) so that’s less than 6% who had a jury trial. This is NOT because 94% are guilty it’s because Virginia has no parole (Truth-in-Sentencing) and because Virginia has a slew of Mandatory Minimums the risk of a jury trial is far too high not to mention the excessive expense that most people can not afford to get to trial. 

Every recant should be taken seriously and investigated thoroughly as would be done with every new accusation of abuse no matter how old. 

What is a Virginia Writ of Actual Innocence? 

It’s a petition to the Court of Appeals based on non-biological evidence. 

Some Virginia names to Google for successful Writs (because they were felony's) include Bennett Barbour, Michael Kenneth McAlister and Keith Allen Harward. 

Over the last 10 years there have been Bills proposed in the Virginia Legislature to amend the Writs of Actual Innocence, but most proposal have been “window dressing”. NONE of the past proposals have included misdemeanor offenses, why? 

Because a misdemeanor doesn’t send you to prison, a misdemeanor isn’t supposed to affect your ability to secure employment, housing or education. A misdemeanor is supposed to be an offense that doesn’t haunt you forever, like a felony does.  

Except in Virginia some sexual misdemeanors mandate public registration as a Sex Offender which in turn can restrict your ability to access education and restrict your options for employment. It mandates that RSO’s update specific data within a limited timeframe and if they don’t they face a felony. As a Virginia RSO, Federally their state-to-state travel can be extremely difficult, international travel requires a 21 day notification to ICE and they can be denied entry into the country they are visiting. Plus Small Business Loans are not an option, HUD Housing and SNAP benefits are off-limits and many earned Veterans Benefits are revoked……..All because the State of Virginia has required a misdemeanor offense to register as a Sex Offender. 

In Virginia most misdemeanor offenses result in a classification of Non-Violent which requires a MINIMUM of 15 years (retroactively increased in 2008 from 10 years) of registration before a petition for removal is allowed and usually its denied by the court. But don’t forget back in 2006 and 2008 the Virginia Legislature took some sexual misdemeanors and made them felonies, in turn the Virginia State Police retroactively re-classified thousands of Non-Violent Offenders to Violent with no due process. 

So in theory a misdemeanor conviction is supposed to be insignificant, but in Virginia sexual misdemeanors require 15 years to life as a Registered Sex Offender under the threat of a felony conviction for any missteps and because the State has required registration Federal bans and restrictions are applicable. 

This is why sexual misdemeanors MUST be added to Virginia’s Writs of Actual Innocence. 

To force an innocent Virginian to endure the shame and pain of the public stigma "Sex Offender" simply because it wasn't a felony is truly cruel and unusual punishment. 

These two Virginia laws (21-Day and Writs) need to be amended! 

I’m asking readers to take action on one or both of these issues. 

Action Item#1:
  1. Ask Virginia Governor McAuliffe https://governor.virginia.gov/constituent-services/communicating-with-the-governors-office/ to find a sponsor and/or support legislation at the January 2017 General Assembly session to amend OR repeal the 21-Day Rule (see the three options above).
  2. Tell your one Virginia Delegate and your one Virginia Senator http://whosmy.virginiageneralassembly.gov/ to sponsor legislation at the January 2017 General Assembly session to amend OR repeal the 21-Day Rule (see the three options above).
  3. Ask the Virginia ACLU to step up to amend OR repeal the 21-Day Rule (see the three options above).
Action Item#2:
  1. Ask Virginia Governor McAuliffe https://governor.virginia.gov/constituent-services/communicating-with-the-governors-office/ to find a sponsor and/or support legislation at the January 2017 General Assembly session to add sexual misdemeanors to Virginia’s Writ of Actual Innocence AND to make sure plea deals are NOT excluded.
  2. Tell your one Virginia Delegate and your one Virginia Senator http://whosmy.virginiageneralassembly.gov/ to sponsor legislation at the January 2017 General Assembly session to add sexual misdemeanors to Virginia’s Writ of Actual Innocence AND to make sure plea deals are NOT excluded.
  3. Ask the Virginia ACLU to step up to add sexual misdemeanors to Virginia’s Writ of Actual Innocence AND to make sure plea deals are NOT excluded. 

There should be no deadline on the truth or clearing the name of an innocent Virginian. 

Justice should be Virginia’s priority. 

Thank you! 

Mary Devoy