Criminal Justice

Virginia's System of Injustice

Wrongful convictions like Keith Allen Harward's are made easier without open discovery rules.

|

Keith Allen Harward spent more than three decades in a locked cage for a crime he did not commit. Thanks to fast work by his attorneys and the Virginia Supreme Court, he walked out of prison on Friday. But nothing the state does can atone for the crime it committed against him. And the heck of it is that many more innocents just like him could be rotting behind bars. Nobody knows.

Harward was convicted for the 1982 murder of Jesse Perron and the raping of Perron's wife, Teresa. DNA evidence has now conclusively demonstrated that another man—a now-dead career criminal named Jerry Crotty—is the real perpetrator of the 1982 crime. Harward had nothing to do with it.

And the authorities probably knew that—or should have.

Swabs from the rape kit in Harward's case included blood-type evidence that, his appeal says, "excluded Mr. Harward as the perpetrator." But that evidence was "never provided Mr. Harward or his counsel. This information was not only suppressed but also falsely characterized as 'inconclusive' by the Commonwealth's forensic expert at trial."

As the Richmond Times-Dispatch's Frank Green has reported, the work of that expert—David Pomposini—also has been involved in another wrongful conviction case, concerning a man named Troy Webb. Webb spent eight years in prison for rape before DNA cleared him.

Harward and Webb are preceded by other well-known innocents set free long after conviction. Thomas Haynesworth spent 27 years in prison for rapes committed by another man. Earl Washington spent 17 years in prison for crimes that DNA proved he did not commit—including several years on death row and six more years even after his exoneration.

Still, that Harward's lawyers never got to see evidence that could have kept another innocent man out of prison—while the guilty one went free—ought to chasten the members of the Virginia Supreme Court.

A 1963 U.S. Supreme Court case, Brady v. Maryland, requires prosecutors to disclose information that could help the defense. But Virginia lets the prosecutor decide what might be helpful and what might not be. In many jurisdictions, prosecutors routinely withhold even basic information such as witness lists and arrest reports. The result is that defendants face what some call "trial by ambush." To be fair, please note that prosecutors resent that term; they say defense counsel springs surprise witnesses during trial far more often than the state does.

A couple of years ago the Virginia Supreme Court appointed a committee to study disclosure rules. It scrutinized the issue for nearly a year, and proposed major reforms. The reforms might have leaned in one direction, but they were not entirely one-sided. Prosecutors could have learned more about the case to be presented by the defense as well. Yet in a two-sentence order in November, the Supreme Court rejected the suggestions wholesale.

Which is too bad, because prosecutors don't always abide by even current discovery requirements. Prince William County Commonwealth's Attorney Paul Ebert—who was re-elected only three weeks before the Virginia Supreme Court's order—has been chastised by federal courts for his "flabbergasting" justifications for withholding exculpatory evidence.

In one instance, the case of Beltway sniper John Allen Muhammad, the evidence would not have changed the trial's outcome. But the second instance led the courts to vacate a murder-for-hire conviction. U.S. District Judge Robert Jackson, a former prosecutor himself, blasted Ebert for repeating behavior he had been warned about in the Muhammad case, and an appellate court found his withholding of evidence useful to the defense "was entirely intentional."

Ebert's justification is, essentially, that he does not want to give defendants material they might use to make stuff up. But in withholding material defendants might use to tell lies, he also is withholding material they need to tell the truth.

That's why Virginia legislators should do what the state's Supremes would not, and require more thorough discovery of pretrial evidence. This would let defense attorneys decide what is useful, rather than prosecutors—who might take a more cramped view of the question.

There's another possible reason to adopt open discovery rules: Jason Norton, a former detective with the Richmond Police Department. Two years ago sharp-eyed federal prosecutors noted that the language in some of Norton's requests for search warrants sounded awfully similar. It turned out Norton lied about confidential informants, whose information he cited as the justification for the warrants, and essentially cut and pasted language from one affidavit to the next.

Norton is no longer on the Richmond force. Chief Alfred Durham has set up an internal audit system to prevent similar instances in the future. But in the meantime, the convictions of a dozen people have been overturned, and the police department and prosecutor Mike Herring have spent God-only-knows-how-many hours sorting the whole mess out. Think of the resources wasted.

Maybe Norton is alone among the thousands of police officers throughout Virginia. But nobody knows. Giving defense lawyers routine access to prosecutors' files might have some deterrent effect in preventing similar cases. Officers would be on notice that defense lawyers would be checking their work, and might take greater pains because of it. A lot of mischief—or simple sloppiness— is possible when arrest reports and similar documents never see the light of day.

This isn't about favoring defendants over law and order. When the state locks up innocent men for crimes they didn't commit, it lets guilty men go free—free to commit further mayhem. Public safety requires more than simply getting a conviction. It requires convicting the right person. Convicting an innocent one is a crime against him, against public safety—and against the taxpayers.

This column originally appeared at the Richmond Times-Dispatch.

Advertisement

NEXT: Happy Birthday, Thomas Jefferson

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Fucked up, isn’t VA overall one of the better states in exoneration via dna evidence?

    1. If memory serves well enough, Idle Hands, Virginia’s Governor Warner initiated revisiting specific convictions and examining the DNA evidence, which resulted in discoveries similar to those Mr. Hinkle discusses. This led to the reopening of many more cases, and a series of exonerations.

      Disgustingly, some prosecutors and individuals in law enforcement (and it appears several legislators and judges) seem more inclined to hide maleficence rather than pursue justice.

      1. Disgustingly, some prosecutors and individuals in law enforcement (and it appears several legislators and judges) seem more inclined to hide maleficence rather than pursue justice.

        Their power comes from the public trust. Exposing maleficence undermines the public trust, which undermines their power. So of course they’re going to hide maleficence rather than pursue justice. They are in it for power. Justice is incidental.

        1. For the record, sarc, I have never operated or owned a wood chipper, have no intention to purchase, borrow, or otherwise obtain or operate a wood chipper, and remain a steadfast proponent of the Non-Aggression Axiom.

          These men and women should be sued or somehow punished for their inexcusable wrongdoing – legally.

          Or, as Jack Burton succinctly puts it, they must pay.

          1. I can see their point of view. If you are a prosecutor and you go after other prosecutors who engage in willful injustice, then some other prosecutor might come after you. But if nobody sets the precedent, then they’re all safe. That’s why cops ignore it when other cops break the law, and why legislators rarely repeal bad legislation. Cops don’t want to get themselves arrested, and legislators don’t want their laws repealed. So they don’t do it to each other.

            1. I see you point, sarc, and I think that there is probably truth behind it.

              Additionally, I have long thought (as you often address with your usual acerbic wit) that many of these individuals believe that they’re serving a higher purpose/”looking at the big picture” by hiding their peers’ wrongdoing from their fellow citizens, because undermining faith in the justice system would result in something like the social fabric unraveling.

            2. One would think, however, that whatever immunity a prosecutor has, to protect his personal assets from seizure through a civil suit, would be immediately declared null, and void, should any kind of action, such as described above, be shown.
              A jury in a civil action, will, more than likely, not be concerned about maintaining the type of protection one prosecutor would have for a fellow prosecutor.
              Make it very clear that refusing to turn over every piece of evidence, even if you can plausibly say it wouldn’t be exculpatory, will open up these prosecutors to personal civil liability and you would see it stop.

        2. Justice isn’t even in the top ten.

    2. my best friends mom got a 6 month old Mercedes-Benz GL-Class GL63 AMG only from working part time off a laptop. why not try this out
      I suggest this website ??????? http://tinyurl.com/grpdbrm

  2. Putting the DA in prison for more than 30 years would be even more chastening.

    1. Also giving Harward all of the DA’s savings and pensions.

      1. I’d be down with giving him half if the DA is married, all if not.

        1. Good point. His wife is probably a prosecutor too, so her share will be headed to someone else.

      2. OOoh…I love he idea of forfeiting his pension!

        1. SOBER UP WOMAN! Ski season passes are on sale…just sayin’. (Keystone’s last day was Sunday…booohoo).

          Anyway, I had a thought about the old saying the I would rather ten guilty go free than one innocent be imprisoned, etc. If you imprison and innocent then a guilty person DOES go free. So why is the converse debated as some sort of viable alternative.

          If you take the other side of that statement YOU ARE STILL LETTING A GUILTY GO FREE!

          I hate people.

  3. The result is that defendants face what some call “trial by ambush.” To be fair, please note that prosecutors resent that term; they say defense counsel springs surprise witnesses during trial far more often than the state does.

    I’m pretty sure neither the defendant nor his counsel is under any ethical or legal obligation to assist in securing a conviction.

    1. I’m pretty sure neither the defendant nor his counsel is under any ethical or legal obligation to assist in securing a conviction.

      Pfffft….Spoken like a true criminal enabler! You and your “ethics”, getting in the way of punishing the bad guys.

      /your local D.A.

    2. That is correct. The Defense Counsel’s sole job is to FORCE the Prosecutor to do HIS job — prove by admissible evidence the guilt of the Defendant beyond a reasonable doubt. Nothing less, nothing more.

  4. A win is a win. That prosecutor has a shot at a seat on the Supreme Court.

    1. Or being governor. or Senator.

      When we write the constitution for the second american republic, the courts will have a group of lawyers that rotate through cases, defending and prosecuting by lot, and they will be forbidden from holding any political office for 10 years after they leave that job. You can help administer justice or run for higher office. But you can’t use the former as a springboard to the latter.

      1. Good idea. The US Military used to do this and it worked well.

  5. Given the author and his choice of a title, I really should have donned my protective gear prior to reading what amounts to a battery of groin punches.

    “Earl Washington spent 17 years in prison for crimes that DNA proved he did not commit – including several years on death row and six more years even after his exoneration.

    Words fail me.

    1. Better ten innocent men go to jail than one be allowed to tarnish a prosecutor’s sterling record.

      1. Yes. This is the prevailing attitude of career prosecutors. After 10 years of looking up the asshole of life, their POV is colored brown.

    2. In August 1985, with a September execution date imminent, another death row inmate, Joseph Giarrantano, alerted Marie Deans (a non-lawyer, who for years had been assisting capital prisoners voluntarily) and a lawyer who was at the Virginia prison working on another case, of Washington’s story. The attorney brought Washington’s case to her law firm and the firm secured a stay of execution for Washington nine days before he was scheduled to die.

      In October 1993, DNA test results revealed that Washington was excluded as a contributor of the seminal stain. Because Washington was time barred by Virginia law, which allowed a defendant only 21 days to introduce new evidence, he was not exonerated. Instead, then Governor Wilder commuted Washington’s sentence to life imprisonment.

      What. The. Fuck.

      “Well, we know you’re not guilty, but you didn’t get this evidence in on time, so too bad, so sad, you’re still in prison. We won’t kill you, so at least you’ve got that going for you, right?”

      1. …Virginia law, which allowed a defendant only 21 days to introduce new evidence….

        Spuriousness. The evidence was extant at the time of the wrongful sentencing, and therefore “old” evidence.

      2. A commutation prevents most civil suits since you are still “guilty”. Nice job, Governor.

  6. Maybe Norton is alone among the thousands of police officers throughout Virginia. But nobody knows.

    I’d bet my life savings that he isn’t. I’d probably be willing to place the same bet that he’s in the majority.

    1. He’s in the very small minority that got caught, though.

  7. I’m certain that these “innocent men” had done something that they deserved to be in prison for, That the state got them for the wrong thing doesn’t mean they didn’t get what they had coming. Good riddance to bad rubbage is what I say.

    1. Is that a portmanteau of rubbish and cabbage?

        1. A little literal, don’t you think?

          1. These masturbation metaphors…

  8. Louisiana in the midst of a Public Defender crisis:

    In an eleven page ruling, Judge Hunter explained that since Louisiana has failed to adequately fund indigent defense it has violated the Sixth Amendment right to effective assistance of counsel and the Fourteenth Amendment right to Due Process of seven men. … While Louisiana incarcerates more of its people than any of the other 50 states, prosecutions across the state are starting to slow down because of inadequate public defense.

    Okay, that’s pretty awful, and Louisiana has been roundly condemned for failing to adequately fund PDs offices statewide, but prosecutors at least can be trusted to ferret out the important details:

    In Judge Hunter’s case one New Orleans prosecutor accused private lawyers of being anarchists because they asked for release of people facing trial until the lawyers can get reimbursed for their costs and overhead, as the Louisiana Supreme Court has demanded since 1993. … Other prosecutors are quite unhappy as well. A Baton Rouge prosecutor accused the public defender of manipulating this crisis to “get rid of the death penalty.”

    I wonder just how much DAs’ budgets have been cut back.

  9. In such cases, both prosecutors and expert witnesses should be subject to personal civil lawsuits to compensate people for the damage they have caused.

  10. So much punching of the nuts in this article.

  11. The Innocence Project posted a pic of Harward on FB the other day, sitting at a lunch counter in front of a big plate of burger & fries.

    There’s your anti-box-punch.

    1. This is the first time I could appreciate the term “Freedom Fries.”

  12. I’ve made $76,000 so far this year working online and I’m a full time student.I’m using an online business opportunity I heard about and I’ve made such great money.It’s really user friendly and I’m just so happy that I found out about it.

    Open This LinkFor More InFormation..

    ??????? http://www.selfcash10.com

  13. Start making more money weekly. This is a valuable part time work for everyone. The best part work from comfort of your house and get paid from $100-$2k each week.Start today and have your first cash at the end of this week. For more details Check this link??

    Clik This Link inYour Browser
    ? ? ? ? http://www.MaxPost30.com

  14. Public safety requires more than simply getting a conviction. It requires convicting the right person.

    It’s cute that anyone thinks the state gives a flying fuck about “public safety”.

  15. Want to meet a girl? Welcome to http://goo.gl/mxiosK
    the Best adult Dating site!

  16. I practiced for years as a prosecutor then as a defender. The discovery rules in my jurisdiction required full disclosure of everything by the prosecution and none by the defense. I have never heard anyone complain. No one, ever.

  17. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail. +_+_+_+_+_+_+_+_+ http://www.ReportMax90.com

  18. Start making cash right now… Get more time with your family by doing jobs that only require for you to have a computer and an internet access and you can have that at your home. Start bringing up to $8012 a month. I’ve started this job and I’ve never been happier and now I am sharing it with you, so you can try it too. You can check it out here…

    —————- http://www.online.factoryofincome.com

  19. Facebook gives you a great opportunity to earn 98652$ at your home.If you are some intelligent you makemany more Dollars.I am also earning many more, my relatives wondered to see how i settle my Life in few days thank GOD to you for this…You can also make cash i never tell alie you should check this I am sure you shocked to see this amazing offer…I’m Loving it!!!!
    ???????? http://www.fox-88.com

  20. I don’t think you’re going to accomplish must change unless you convince the vast majority of people that they are wrong to favor law enforcement. And would appointing DAs solve any problems?

  21. before I saw the bank draft which had said $9426 , I didnt believe that…my… brother woz like actualy earning money part-time at there labtop. . there uncles cousin has done this 4 less than fifteen months and by now repaid the dept on there place and got a great new Mini Cooper . read the full info here …

    Clik This Link inYour Browser??

    ? ? ? ? http://www.SelfCash10.com

  22. Start making more money weekly. This is a valuable part time work for everyone. The best part work from comfort of your house and get paid from $100-$2k each week.Start today and have your first cash at the end of this week. For more details Check this link??

    Clik This Link inYour Browser?

    ???? http://www.selfCash10.com

  23. uptil I saw the bank draft four $8760 , I be certain …that…my sister woz actually bringing in money part time from there labtop. . there neighbour had bean doing this 4 only about eighteen months and resently cleard the depts on there home and bourt a top of the range Chrysler ….

    Clik This Link inYour Browser….

    ? ? ? ? http://www.Reportmax20.com

Please to post comments

Comments are closed.