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Thursday, October 6, 2016

Virginia's Habeas Corpus, Writs of Actual Innocence, the Number of Governor Pardons Over the Lasts 7 Years AND the Sway Commonwealth’s Attorneys have with Virginia Legislators /Legislation

Update:

4 "Absolute" Pardons for RSO’s!
20 Years After Being Bullied Into Confessing, ‘Norfolk 4’ Are Pardoned, March 21, 2017
https://www.nytimes.com/2017/03/21/us/norfolk-four-sailors-rape-murder-mcauliffe.html?_r=0

Original Post:

On Monday October 3rd I arrived to the second-half of the Virginia State Crime Commission meeting not because of any particular issue being discussed but because I was waiting for my last meeting of 2016 with a Virginia Legislator to begin. 

I sat through VI of the agenda (see above) to the end of the meeting. 

It was decided that the new 2016 VSCC Chairman is Virginia Delegate Rob Bell (running for VA Attorney General nominee in 2017) and the new VSCC Co-Chair is Virginia Senator Mark Obenshain. 

But I found the Habeus Corpus presentation and then the two public speakers to be the most interesting. 

A Habeas Corpus challenges the due process from a past conviction, NOT the proof of innocence. 

Also in Virginia with a Habeas Corpus filing EVERY issue must be raised in the 1st filing (unlike in many other states), otherwise all preceding files will be barred, In other words Virginia law mandates a defendant show all their cards at once, no surprises. Virginia has been called a “One Habeas State” because of this rule. 
 

In the presentation on slide #19 the last 7 years of Virginia Governor Pardons is tracked. In Virginia we have 3 kinds of Governor Pardons:
1.       Simple (A statement of official forgiveness; does not remove conviction from criminal record)
2.      Absolute (Allows for removal of conviction from criminal record)
3.      Conditional (Available only to incarcerated individuals; typically grants early release with conditions)  

Without an Absolute Pardon any sexual conviction that required registration as a Sex Offender, the pardoned person would STILL be mandated to register as a public Violent Sex Offender under threat of a new felony. 

I know of NO Absolute Pardon for an RSO (Registered Sex Offender) in Virginia 

Over the last 21 years of Sex Offender Registration in Virginia ONLY Conditional Pardons have been granted to a few RSO’s who then had to file a Writ of Actual Innocence (non biological evidence) to try and get the conviction wiped from their record and released from the mandate to register as a public Sex Offender. A few RSO’s have been successful with the Writ process but others have not and are still Registered Sex Offenders even though it appears they are actually innocent of the crime.  
 
With a Virginia Writ of Actual Innocence slide #16 the defendant:
  1. Had to be convicted of a Felony offense.
    • Misdemeanors do not qualify even though some Virginia misdemeanor offenses can mandate registration as a public Sex Offender for a minimum of 15 years if not for life.
  2. Has to be Incarcerated
  3. Had to plead not guilty, so they were convicted in a trial.
    • Even though 94% of Virginia criminal cases are settled with a plea deal where the defendant either pled guilty OR with  an Alford plea
  4. Clear and convincing evidence standard 
In the last 6 years 2 Virginia Governors (McDonnell and McAuliffe) have issued:
  1. 32 Simple Pardons
  2. 2 Absolute Pardons
  3. 5 Conditional Pardons
So out of 39 “Pardons” in the last 6 years only 2 of them actually removed the wrongful conviction for the defendant’s record in Virginia. 

Not good! 

As for the two speakers on Monday one was from the Mid-Atlantic Innocence Project who did a great job explaining why the recommended change in the presentation is needed, how new scientific evidence needs to be considered and why the recommendation would NOT lead to a “landslide of new filings”. 

Then a Commonwealth’s Attorney (who attends every General Assembly session) told the Commission that if Virginia made this change and considered new science we'd be making a huge mistake and guilty people could be set free because of bad science. 

Guess which speaker the Commission members decided to listen to? 

Yep……The Commonwealth’s Attorney. 

Just like at the yearly General Assembly session if a Commonwealth’s Attorney OR the Virginia State Police oppose or support a piece of legislation even if research and evidence is against them, Virginia Legislators usually listen to them anyway. 

For anyone who didn’t read this report  from the ACLU of Virginia earlier this year you should and remember this November the Commonwealth Attorney in your city or county could be up for reelection.  

Commonwealth Attorney’s are Ministers of Justice, NOT Victim’s Advocates and sometimes what I’ve heard some of them say in open public meetings over the last 8 years is not just disappointing but shockingly biased and self-serving. 

Barriers to justice being served in Virginia need to be removed, not erected or reinforced by those who wield all the power to file/stack charges (or not) and offer plea deals (or not). 

Mary Devoy