Innocence Commission of Va, Wrongful Convictions Report, 2005

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Innocence Commission of Va, Wrongful Convictions Report, 2005

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A VISION FOR JUSTICE:
REPORT AND RECOMMENDATIONS REGARDING
WRONGFUL CONVICTIONS IN THE COMMONWEALTH
OF VIRGINIA
MARCH 2005
PRESENTED BY
THE INNOCENCE COMMISSION FOR VIRGINIA
P.O. BOX 100871, ARLINGTON VA 22210
HTTP://WWW.ICVA.US

THIS REPORT IS DEDICATED TO THE VICTIMS OF VIOLENT CRIME
AND THOSE WRONGLY CONVICTED.

THE INNOCENCE COMMISSION FOR VIRGINIA
The Innocence Commission for Virginia (“ICVA”) is a nonprofit, nonpartisan organization dedicated to
improving the administration of justice in Virginia. Formed in 2003, the ICVA is a collaborative effort of the
Mid-Atlantic Innocence Project, the Administration of Justice Program at George Mason University, and the
Constitution Project, part of Georgetown University’s Public Policy Institute. A brief description of each of
the three sponsoring organizations, and a listing of the ICVA’s steering committee and advisory board
members, is provided below.
The Mid-Atlantic Innocence Project (formerly the Innocence Project of the National Capital Region)
The Mid-Atlantic Innocence Project, housed at American University’s Washington College of Law, is a
nonprofit organization founded in 2000 in response to the increasing evidence that our criminal justice system
is failing in its most critical functions: the conviction of the guilty and the exoneration of the innocent. The
Mid-Atlantic Innocence Project’s mission is to seek the exoneration and release from incarceration of persons
who have been convicted of crimes that they did not commit in Maryland, Virginia, and the District of
Columbia. The Mid-Atlantic Innocence Project receives approximately 40 to 60 new applications per month
from inmates requesting assistance, screens the cases and, where appropriate, refers them to volunteer
attorneys. The Mid-Atlantic Innocence Project is also active in legislative efforts to improve post-conviction
access to forensic testing and to enact other reforms aimed at preventing and reversing wrongful convictions.
The Mid-Atlantic Innocence Project is affiliated with the Innocence Network, a coalition of similar
organizations across the nation.
The Administration of Justice Program at George Mason University
The Administration of Justice Program at George Mason University (“ADJ”) is a multi-disciplinary team of
professors and practitioners with experience in judicial and police administration, governmental transparency
and reform, technological innovation, and legal reform. The program is anchored by six faculty members with
backgrounds in criminal justice, law, public administration, political science, sociology, psychology, and
research methods, and draws upon over 25 affiliated faculty members and 30 justice practitioners. In addition
to training undergraduate students, the ADJ program has inaugurated Virginia’s first and only doctoral
program in criminal justice. ADJ faculty apply the insights of academe to the problems of the policy world,
assisting practitioners at all levels through technical assistance, training, cooperative partnerships, and
research.
The Constitution Project
The Constitution Project, based at Georgetown University's Public Policy Institute, combines scholarship and
activism using a wide variety of practical efforts to promote constitutional dialogue in settings outside the
judiciary. It creates bipartisan blue-ribbon committees of former government officials, judges, scholars, and
other prominent citizens to reach across ideological and partisan lines, and across divides among the executive,

INNOCENCE COMMISSION FOR VIRGINIA

vii

judicial, and legislative branches. The Constitution Project seeks consensus on issues that often the courts
cannot resolve, and it develops guidelines designed to make constitutional issues a part of ordinary political
debate. Based on these consensus positions, the Constitution Project then promotes public education and
grassroots efforts to encourage serious constitutional dialogue in a variety of settings. The Constitution
Project's current initiatives include: Constitutional Amendments, Courts (Judicial Independence), Death
Penalty, Liberty and Security, Right to Counsel, Sentencing, and War Powers.

viii

A VISION FOR JUSTICE

ICVA ADVISORY BOARD
Joan Anderson, Mother of Virginia Exoneree
Steven D. Benjamin, Benjamin & DesPortes, P.C., Board Member, National Association of Criminal Defense
Lawyers
Rodney G. Leffler, Leffler & Hyland, P.C., Former Chair, Criminal Law Section, Virginia State Bar; former
police officer and prosecutor
Judge William S. Sessions, Holland & Knight, LLP, Former Director, Federal Bureau of Investigation
B. Frank Stokes, Special Agent, FBI, Retired
John C. Tucker, Author, May God Have Mercy
John W. Whitehead, President, The Rutherford Institute

ICVA STEERING COMMITTEE
Chair: Jon B. Gould, Assistant Director and Professor, Administration of Justice Program, George Mason
University
Legal Director: Donald P. Salzman, President of the Mid-Atlantic Innocence Project, Skadden, Arps, Slate,
Meagher & Flom LLP
Virginia Sloan, Founder and President of the Constitution Project
Julia Sullivan, past-President of the Mid-Atlantic Innocence Project; Law Office of Julia E. Sullivan, LLC;
Adjunct Professor, Georgetown Law Center
Misty Thomas, Director, Mid-Atlantic Innocence Project

INNOCENCE COMMISSION FOR VIRGINIA

ACKNOWLEDGEMENTS
The ICVA is deeply indebted to the volunteer attorneys and law firms involved in preparing this report and
would like to thank the following law firms for their pro bono participation:
Alston & Bird
Arnold & Porter
Collier Shannon Scott
Covington & Burling
DLA Piper Rudnick Gray Cary
Hogan & Hartson
King & Spalding
Morrison & Foerster
Skadden, Arps, Slate, Meagher & Flom
Steptoe & Johnson
Troutman Sanders

A VISION FOR JUSTICE

TABLE OF CONTENTS
EXECUTIVE SUMMARY......................................................................................................... XIV
RECOMMENDATIONS ............................................................................................................ XVIII
REPORT ................................................................................................................................. 1
PART ONE: INTRODUCTION........................................................................................ 1
I.
II.
III.

Wrongful Convictions in Virginia........................................................................................ 1
Innocence Commission for Virginia..................................................................................... 2
ICVA Investigations and Report .......................................................................................... 3

PART TWO: SUMMARY OF FACTORS THAT HAVE CONTRIBUTED TO WRONGFUL
CONVICTIONS IN VIRGINIA AND SUGGESTED CRIMINAL JUSTICE REFORMS FOR
VIRGINIA ........................................................................................................................... 6
I.
II.
III.
IV.
V.
VI.
VII.

Eyewitness Identifications ................................................................................................... 8
Interrogation Procedures ...................................................................................................... 9
Discovery Practices .............................................................................................................. 10
Unwarranted Focus on Single Suspect or "Tunnel Vision".................................................. 10
Defense Counsel................................................................................................................... 11
Scientific Evidence............................................................................................................... 11
Post-Conviction Remedies ................................................................................................... 12

PART THREE: SUMMARY OF CASES......................................................................... 13
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.

Marvin Anderson.................................................................................................................. 13
Craig Bell ............................................................................................................................. 14
Jeffrey Cox ........................................................................................................................... 15
Russell Gray ......................................................................................................................... 16
Edward Honaker................................................................................................................... 16
Julius Ruffin ......................................................................................................................... 17
Walter Snyder....................................................................................................................... 19
David Vasquez ..................................................................................................................... 19
Earl Washington................................................................................................................... 21
Troy Webb ........................................................................................................................... 22
Arthur Whitfield................................................................................................................... 23

INNOCENCE COMMISSION FOR VIRGINIA

PART FOUR: RESEARCH AND RECOMMENDATIONS, BEST PRACTICES
FOR VIRGINIA ..................................................................................................................25
I.

Eyewitness Identifications..................................................................................................25
A.
Introduction .............................................................................................................25
B.
Virginia Law on Eyewitness Identification..............................................................26
C.
Eyewitness Identification Research .........................................................................28
D.
Virginia Law Enforcement Identification Procedures and Practices .......................30
E.
Mistaken Identification in the Cases of Virginia Exonerees....................................32
F.
Best Practices for Identification Procedures ............................................................34
G.
Recommendations for Reform in Virginia for Eyewitness Identifications ..............36

II.

Interrogation Procedures ...................................................................................................42
A.
Introduction .............................................................................................................42
B.
Virginia Law on Interrogation .................................................................................44
C.
False Confession Research ......................................................................................45
D.
Virginia Law Enforcement Interrogation Procedures and Practices ........................46
E.
False Confessions and Interrogation in the Cases of Virginia Exonerees................48
F.
Best Practices for Interrogation Procedures.............................................................52
G.
Recommendations for Reform in Virginia for Custodial Interrogations .................54

III.

Discovery Practices.............................................................................................................59
A.
Introduction .............................................................................................................59
B.
Virginia Law on Discovery......................................................................................60
C.
Virginia Commonwealth's Attorney Procedures and Practices
Concerning Discovery .............................................................................................61
D.
Discovery Issues in the Cases of Virginia Exonerees ..............................................62
E.
Best Practices for Discovery Procedures .................................................................64
F.
Recommendations for Discovery Practice Reform in Virginia ...............................67

IV.

Unwarranted Focus on Single Suspect or "Tunnel Vision"............................................69
A.
Introduction .............................................................................................................69
B.
Tunnel Vision in the Cases of Virginia Exonerees ..................................................69
C.
Best Practices to Avoid Tunnel Vision ....................................................................73
D.
Recommendations for Reform in Virginia Concerning Tunnel Vision ...................73

Defense Counsel ..................................................................................................................74
A.
Introduction .............................................................................................................74
B.
Virginia Law on Conflicts of Interest and Effectiveness of Defense Counsel.........75
C.
Ineffective Defense Counsel and Defense Counsel with Conflicts of Interest in
the Cases of Virginia Exonerees ..............................................................................76
D.
Recommendations for Reform in Virginia Concerning Quality of
Defense Counsel ......................................................................................................81

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A VISION FOR JUSTICE

VI.

Scientific Evidence.............................................................................................................. 83
A.
Introduction ............................................................................................................. 83
B.
Virginia Law and Practice Related to Scientific Evidence...................................... 85
C.
Questionable Scientific Evidence............................................................................ 86
D.
Scientific Evidence Issues in the Cases of Virginia Exonerees ............................... 87
E.
Recommendations for Reform in Virginia for Scientific Evidence......................... 91

VII.

Post-Conviction Remedies ................................................................................................. 95
A.
Introduction ............................................................................................................. 95
B.
Post-Conviction Remedies in Virginia .................................................................... 96
C.
Research on Post-Conviction Remedies in Other Jurisdictions............................... 101
D.
Recommendations for Reform in Virginia Regarding Post-Conviction Remedies . 102

PART FIVE: CONCLUSION........................................................................................... 108
APPENDICES ..................................................................................................................... 109
A.
B.

History and Importance of Innocence Commissions in Other Jurisdictions............ 109
Survey Methodology ............................................................................................... 112

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xiii

EXECUTIVE SUMMARY

The ICVA is a
nonprofit,
nongovernmental,
nonpartisan project
dedicated to
supplementing the
ongoing work in
the Commonwealth
through
recommendations
to strengthen the
reliability of its
criminal justice
system and to
reduce the
likelihood of future
wrongful
convictions.

xiv

Between 1982 and 1990, no fewer than eleven individuals were wrongfully
convicted in Virginia of serious felonies – rape and murder – and spent a
collective 118 years in prison before their innocence was officially
recognized by the Commonwealth. Meanwhile, in at least some cases, the
actual perpetrators remained at large or committed other crimes for which
they were eventually incarcerated. These wrongful convictions imposed
huge costs on Virginians.
Virginia is not alone. We know that wrongful convictions have occurred in
other states, and national attention is focusing on the problems that underlie
these wrongful convictions. In Virginia, for example, the case of Marvin
Anderson, one of the exonerees studied in this report, has been made into a
Court TV movie, featured in several publications, and highlighted on
nationally syndicated shows.1 In addition, Virginia’s system of indigent
defense has been the subject of national study, with the American Bar
Association and other expert organizations calling for changes in the
availability and payment of counsel for indigent criminal defendants.2
Recently, however, Virginia has begun to reform its criminal justice system,
thanks to the Virginia State Crime Commission and lawmakers in both
political parties. In 2002, voters approved a referendum to allow
defendants an opportunity to introduce exculpatory DNA evidence postconviction. Additional reforms signed into law by Governor Mark Warner
in 2004 give defendants one opportunity to seek a “petition for a writ of
actual innocence” based upon newly discovered evidence that was
unavailable at trial. Most recently, the State Crime Commission released a
report on mistaken eyewitness identification, issuing six recommendations
to improve the procedures for conducting lineups in Virginia.3
The good faith and hard work of the Commonwealth’s prosecutors and
police, and the fine, national reputation of the Virginia Division of Forensic
Science, has not been enough to minimize the risk of wrongful convictions.
With this in mind, three organizations came together in 2003 to create the
Innocence Commission for Virginia (ICVA), a nonprofit, nongovernmental,
nonpartisan project dedicated to supplementing the ongoing work in the
Commonwealth through recommendations to strengthen the reliability of its
criminal justice system and to reduce the likelihood of future wrongful
convictions.

A VISION FOR JUSTICE

The ICVA is sponsored by the Mid-Atlantic Innocence Project, the
Administration of Justice Program at George Mason University and the
Constitution Project, part of Georgetown University’s Public Policy
Institute. Directed by a five-person steering committee and supported by a
seven-member advisory board, the ICVA’s leadership reflects a broad range
of views on justice and policy matters. In addition to the steering
committee and the advisory board, the ICVA has been aided by pro bono
attorneys at several notable law firms in Virginia and Washington, D.C.,
who conducted the case investigations and assisted with legal research. The
ICVA’s report is intended to contribute to the Commonwealth’s own work
by analyzing and evaluating the state’s criminal justice system to ensure
that errors are minimized.

The ICVA’s study
used the most
conservative of
criteria to identify
the cases to review.

The ICVA’s study used the most conservative of criteria to identify the
cases to review. First, it focused on serious felonies because those are the
cases in which the stakes are typically the highest. Second, it looked only at
post-1980 convictions so that the data it studied would be the most recent
and reliable. Finally, the ICVA included only cases in which there had
been an official exoneration, through a governor’s pardon or a court’s order,
or when prosecutors conceded that the wrong person had been convicted.
These cases involved not just legal errors but factual mistakes, in which the
wrong person was convicted of a serious crime and later cleared.
The ICVA’s review reveals common themes among the cases, and
compares those themes to other jurisdictions. The ICVA also conducted a
confidential survey of law enforcement agencies and prosecutors' offices in
the Commonwealth to determine their practices for eyewitness
identification, custodial questioning, and discovery.
Because the Commonwealth’s law enforcement, judicial, and criminal
defense systems operate with good faith and integrity in the vast majority of
cases, the ICVA’s comprehensive examination reveals few instances of
deliberate, wrongful conduct by those involved in the investigation,
prosecution, and defense of these cases. The wrongful convictions the
ICVA identified largely resulted from honest people making honest
mistakes. These mistakes, however, led to tragic results, not only for the
innocent men who were wrongfully convicted but also for those Virginians
who suffered at the hands of the true perpetrators who were not
apprehended. A better system will enable the Commonwealth to avoid
these human costs, as well as the financial costs associated with the
imprisonment of the innocent, the legal proceedings required to free them,
and any later proceedings to convict the guilty.

The wrongful
convictions the
ICVA identified
largely resulted
from honest people
making honest
mistakes. These
mistakes, however,
led to tragic results.

INNOCENCE COMMISSION FOR VIRGINIA

The following factors underlie the wrongful convictions the ICVA
identified in Virginia:

Many exonerations
occurred only
because lawyers,
usually
volunteering their
time, fought for
many years to clear
their clients, too
often in the face of
almost
insurmountable
odds erected by the
Commonwealth
seeking to preserve
the conviction.

•

The honest, mistaken identification of defendants by victims or other
eyewitnesses, particularly in cases involving cross-racial
identifications.

•

Suggestive identification procedures, including photo arrays and
lineups that unduly highlight a particular suspect.

•

“Tunnel vision” by police officers and detectives, especially in high
profile cases.

•

Antiquated forensic testing methods of biological evidence that was
later shown to be exculpatory.

•

Inadequate, if not ineffective, assistance of defense counsel.

•

Failure to disclose exculpatory reports or other evidence to the
defense.

•

High pressure interrogations involving suspects with mental
incapacities.

•

Inconsistent, and therefore suspicious, statements by defendants.

•

The unavailability of adequate post-conviction remedies to address
wrongful convictions once they have occurred.

Some may say that the cases identified by the ICVA prove that the criminal
justice system does work. After all, these eleven innocent men were
ultimately exonerated. However, many of the exonerations occurred only
because lawyers, usually volunteering their time, fought for many years to
clear their clients, too often in the face of almost insurmountable odds
erected by the Commonwealth seeking to preserve the conviction. The
average time from conviction to exoneration in the eleven cases that the
ICVA examined was close to eleven years, during which time Virginians
spent over $2 million to imprison these innocent defendants. The emotional
costs of these wrongful convictions – to the crime victims, to the
wrongfully convicted, and to their families – are beyond measure. Because
the consequences of wrongful conviction are so significant, it is essential

xvi

A VISION FOR JUSTICE

that steps be taken, to the extent practicable, to minimize the possibility that
mistakes will continue to occur. The upheaval that occurs when an
innocent person is exonerated, often years or even decades after conviction,
extends to victims and the wrongly convicted alike, as well as to their
families and communities.
The conviction of an innocent person has broad implications for the
criminal justice system. Every time a crime occurs and the justice system
convicts the wrong person, the truly guilty person remains at large, free to
inflict more damage on the community. Victims, who have a right to see
their victimizers punished, suffer when the criminal justice system convicts
the innocent, and suffer again if the true perpetrator is apprehended and the
victims must relive the crime through another trial. The public may come
to doubt the competency of justice professionals and the legitimacy of the
justice process. The unnecessary costs of wrongful incarceration, appeals,
and retrials are a tremendous strain on all Virginians.
And, of course, the innocent individual suffers a devastating loss of
freedom and other civil rights. For the exonerated defendant, release from
prison does not immediately or necessarily begin the process of healing.
Although programs exist to help guilty inmates transition back to society
with housing, counseling, employment and other support, the innocent are
more often simply released back into the community with no help, and
inadequate or no compensation for the wrong inflicted upon them.
To avoid these costs and consequences, it is essential that society, policy
makers, and others involved in the criminal justice system, make every
effort to avoid wrongful convictions, and to provide relief where wrongful
convictions occur. The ICVA offers specific recommendations, detailed in
the next section of this report, which it believes would improve the
reliability of Virginia’s criminal justice system.

Society, policy
makers, and those
involved in the
criminal justice
system should
make every effort
to avoid wrongful
convictions and
should provide
relief where
wrongful
convictions occur.

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xvii

RECOMMENDATIONS
The ICVA recommends the following reforms to prevent wrongful
convictions in Virginia and to provide redress where wrongful convictions
occur:
Α. Eyewitness Identifications

xviii

Multiple person lineups and multiple person photo arrays are
significantly more reliable than single person or single photograph
identification procedures. Therefore, law enforcement personnel
should use multiple person lineups and multiple person photo arrays
whenever practicable. Generally, identification procedures should
include six to eight participants, including the suspect.

Only a single witness should participate in an identification procedure
at one time. When conducting identification procedures, law
enforcement personnel should include only one suspect per procedure,
should include participants who are not suspects, and should, to the
greatest extent possible, ensure a consistent appearance between
suspects and other participants so that suspects do not stand out.

Law enforcement personnel should instruct each witness that the
person who committed the crime may or may not be included in the
identification procedure and that the witness should not feel obligated
to make an identification unless the witness recognizes the perpetrator.
Each witness should be instructed that it is just as important to clear an
innocent person of wrongdoing as it is to identify the perpetrator.

Law enforcement officials who conduct identification procedures
should not know the identity of the actual suspects in order to reduce
unintended influence on the witnesses during identification procedures,
and witnesses should be informed that the person conducting the
procedure does not know which participant is the suspect. Law
enforcement officers should avoid giving feedback to witnesses during
or after identification procedures.

Law enforcement personnel should adopt sequential rather than
simultaneous identification procedures.

A VISION FOR JUSTICE

If a photo array is used, law enforcement personnel should show the
photos to the witness one at a time, and they should obtain a statement
from the witness as to whether the person in the photo is or is not the
perpetrator, the degree of confidence of the witness in any
identification, and the nature of any similarities or differences the
witness observes between the photo and the perpetrator all before
moving on to the next photo. The same procedure should be followed
if a live person lineup is used.

Law enforcement personnel should videotape identification
procedures, to the extent practicable, and, at a minimum, should
audiotape identification procedures. Taping should include
conversations between the witness and police immediately prior to
commencement of the identification procedure.

Virginia courts should permit, in appropriate cases, the introduction of
expert testimony on the issue of human memory as it relates to the
identification process and on the issue of best practices for eyewitness
identification procedures. Virginia courts should also instruct jurors to
carefully consider the reliability of eyewitness identifications.

Β.

Interrogation Procedures

The Virginia General Assembly should require law enforcement
personnel to videotape custodial interrogations of suspects in all
homicide and serious felony cases, to the extent practicable.

The Virginia General Assembly should require law enforcement
personnel to record the entire interrogation process, including the
initial advice of rights given to suspects, from the beginning of
custodial interrogation in the stationhouse until the point when all
police questioning has ended.

The Virginia General Assembly should provide that failure to record
an entire, complete custodial interrogation would make any confession
obtained from that interrogation potentially subject to a general
exclusionary rule.

Law enforcement officers should avoid using high-pressure
interrogation practices when questioning children and suspects who
have developmental disabilities.

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xix

Virginia courts should permit, in appropriate cases, the introduction of
expert testimony concerning the factors that can contribute to false
confessions.

Discovery Practices

Virginia should amend the formal discovery rules to mandate open-file
discovery procedures.
D. Unwarranted Focus on Single Suspect or "Tunnel Vision"
1.

Tunnel vision, in which officers jump too quickly to the conclusion
that a particular suspect is guilty or focus solely on one person to the
exclusion of other viable suspects, is a special danger in law
enforcement. Law enforcement agencies should train their officers to
document all exculpatory, as well as inculpatory, evidence about a
particular suspect/individual that they discover and to include this
information in their official reports to ensure that all exculpatory
information comes to the attention of prosecutors and subsequently to
defense attorneys.

Law enforcement agencies should train their officers to pursue all
reasonable lines of inquiry, whether they point toward or away from a
particular suspect.

During the initial training of their officers and during refresher training
for experienced officers, law enforcement agencies should present
studies of wrongful convictions to highlight the pitfalls of “tunnel
vision.”

Defense Counsel

The Virginia General Assembly should adopt the reforms outlined by the
Spangenberg Group, in its January 2004 report on Virginia’s indigent
defense system. The report was commissioned on behalf of the American
Bar Association’s Standing Committee on Legal Aid and Indigent Defense.
Although the General Assembly created a new Indigent Defense
Commission in March 2004 that requires training and certification for
lawyers defending indigent clients and sets caseload limits for public
defender offices, the following important issues remain:

A VISION FOR JUSTICE

The General Assembly should fund indigent defense services in cases
requiring appointment of counsel at a level that ensures that all
indigent defendants receive effective and meaningful representation.

The Indigent Defense Commission should adopt performance and
qualification standards for both private, assigned counsel and public
defenders. The standards should address workload limits, training
requirements, professional independence and other areas to ensure
effective and meaningful representation.

The Indigent Defense Commission should implement a comprehensive
data collection system to provide an accurate picture of the provision
of indigent criminal services in Virginia.

Scientific Evidence

The Virginia General Assembly should require that all biological
evidence in serious felony cases be preserved to ensure it is available
for post-conviction DNA testing.

The Commonwealth should continue and expand its latest initiative to
examine and test biological evidence from old cases using DNA.

The Virginia General Assembly and the courts should provide
sufficient resources so that indigent criminal defendants can obtain the
services of expert witnesses to evaluate the scientific evidence offered
against them and to testify, where appropriate, at trial on behalf of
defendants.

The Virginia Supreme Court should adopt more stringent rules
governing the admissibility of scientific evidence in criminal cases.

The Commonwealth should diligently pursue the audit of the
Washington case.

G. Post-Conviction Remedies
1.

The Virginia General Assembly should extend the availability of the
writ of innocence to inmates who entered a plea other than not guilty.

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xxi

xxii

The Virginia General Assembly should extend the availability of the
writ of innocence to inmates whose evidence of actual innocence was
not presented at trial due to ineffective assistance of counsel.

The Virginia General Assembly should eliminate the limitation on the
number of petitions for a writ of innocence that an inmate who relies
upon non-biological evidence may file.

A VISION FOR JUSTICE

REPORT AND RECOMMENDATIONS
PART ONE
INTRODUCTION
I.

Wrongful Convictions in Virginia

In compiling this report, the ICVA has studied the cases of eleven
individuals who were wrongfully convicted in Virginia of serious felonies –
rape and murder – between 1982 and 1990. These individuals spent a
collective 118 years in prison before their innocence was officially
recognized by the Commonwealth. It required many years and thousands of
hours of legal assistance, much of it pro bono, to secure the release from
confinement of these innocent citizens. Meanwhile, in at least some cases,
the actual perpetrators remained at large or committed other crimes for
which they were eventually incarcerated. The imprisonment of these
innocent men, the legal proceedings that eventually resulted in their
exoneration and release, and the crimes committed by the actual
perpetrators who remained at large imposed huge costs on Virginia
taxpayers.
Virginians spent over $2 million to imprison the eleven innocent defendants
mentioned in this report. Moreover, the current exoneration process is
extremely costly. The average time from conviction to exoneration in the
eleven cases that the ICVA reviewed was 11 years. Eventually the
Commonwealth must pay hundreds of thousands of dollars in retrials if the
actual perpetrator is apprehended and in compensation to innocent
defendants erroneously convicted and imprisoned.

Virginians spent
over $2 million to
imprison eleven
innocent
defendants. Their
average time from
conviction to
exoneration was 11
years.

Meanwhile, when the wrong person is behind bars, the actual perpetrator
often remains on the streets to endanger society. In at least one of the cases
investigated – that of David Vasquez – four other brutal assaults might have
been prevented if the correct perpetrator had been identified and prosecuted
rather than the innocent man who was convicted. For those who have been
victimized, the damage is compounded when the criminal justice system
fails to identify and apprehend the actual perpetrator. Victims suffer again
if the true felon is caught and victims must relive the crime through another
trial. In turn, the public may come to doubt the competency of justice
professionals and the legitimacy of the justice process.

INNOCENCE COMMISSION FOR VIRGINIA

Despite the good
faith and hard work
of the
Commonwealth’s
prosecutors and
police, and the fine,
national reputation
of the Virginia
Division of
Forensic Science,
significant
opportunities exist
to further improve
the accuracy of
criminal justice
proceedings in the
Commonwealth.

Finally, of course, the innocent individual suffers a devastating loss of
freedom and other civil rights, disruption of family and other relationships,
loss of earning potential, and long-term psychological damage when
wrongly convicted. The Mid-Atlantic Innocence Project is studying the
effects of wrongful conviction on exonerees in Virginia. Studies of
exonerees from other jurisdictions show that most exonerees suffer
enduring personality change, post-traumatic stress disorder, and major
problems of psychological and social adjustment.4 Anecdotal evidence
shows problems in obtaining employment, finding housing and
transportation, and restoring family and social relationships.
Over the last two years, Virginia has instituted several laudable reforms to
address the problem of wrongful convictions. For example, the
Commonwealth recently empowered its courts to issue “Writs of Actual
Innocence” based upon biological evidence that was unavailable at trial. In
2004, the Governor, responding to the expert recommendations of the
Virginia State Crime Commission, signed a law that makes the Writ of
Actual Innocence available in some cases that involve non-biological
evidence; and, in early 2005, the State Crime Commission issued six
recommendations to improve the procedures for conducting lineups in
Virginia. The ICVA applauds these important steps towards addressing the
problem of wrongful convictions and respectfully offers the
recommendations contained in this report to further strengthen the
reliability of criminal justice proceedings in Virginia and to reduce the
likelihood that wrongful convictions will continue to occur.
II. Innocence Commission for Virginia
Despite the good faith and hard work of the Commonwealth’s prosecutors
and police, and the fine, national reputation of the Virginia Division of
Forensic Science, significant opportunities exist to further improve the
accuracy of criminal justice proceedings in the Commonwealth. With this
in mind, the ICVA was formed in 2003 as a nonprofit, nonpartisan
organization dedicated to improving the administration of justice in
Virginia. The ICVA is directed by a steering committee and supported by a
nonpartisan advisory board whose members are listed at the front of this
report. The ICVA’s report is intended to contribute to the Commonwealth’s
own work by analyzing and evaluating the state’s criminal justice system to
ensure that errors are minimized. Through its steering committee and
advisory board, the ICVA reflects a broad range of views on criminal
justice and policy matters – including a wide swath of political perspectives,
thus mirroring those of the Commonwealth’s citizens.

A VISION FOR JUSTICE

III. ICVA Investigation and Report
The ICVA’s independent, objective, and thorough investigation into eleven
wrongful convictions has identified several common factors behind the
erroneous outcomes. This report describes the ICVA’s investigation into
wrongful convictions, using the most conservative of criteria to identify
cases in which a defendant was officially exonerated of a serious, recent
crime. The ICVA’s researchers began by canvassing the Commonwealth,
surveying law enforcement agencies, Commonwealth's Attorneys, defense
lawyers, and other interested groups to identify these cases.
The ICVA’s case selection criteria had three parts.
First, the ICVA focused on serious felonies, generally rape and murder.
The ICVA acknowledges that wrongful convictions can occur in other types
of cases and that the consequences of those mistakes are significant to all
involved. But the stakes are highest in cases involving the most serious
crimes, which is where the ICVA placed its focus.
The ICVA further limited the investigation to convictions post-1980,
because available case information dissipates over time, affecting the
reliability of data collection. Case files may be thrown out, the memories of
witnesses may fade, and officials may retire or move. Furthermore, by
focusing on relatively recent cases, researchers were able to obtain pertinent
information on investigative and prosecutorial methods still in use.

The ICVA limited
its review to those
cases in which the
Commonwealth
itself has officially
acknowledged an
erroneous
conviction.

Finally, the ICVA’s researchers focused only on official exonerations,
meaning cases in which a defendant’s conviction was later overturned by a
governor’s pardon or a court’s order, or when prosecutors conceded that the
wrong person had been convicted. There are undoubtedly other cases in
which the defendant’s guilt is questionable, but even with a conservative
definition of error there is no consensus about either the fact or the cause of
error in those cases. The ICVA has thus limited its review to those cases in
which the Commonwealth itself has officially acknowledged an erroneous
conviction. These are not matters of legal error – where procedural
shortcomings command a new trial or release – but cases of factual
mistakes, in which the wrong person was convicted of a serious crime and
later cleared.
To identify cases that met these criteria, the ICVA’s researchers combed
news accounts and legal archives and surveyed by mail law enforcement
agencies, Commonwealth's Attorneys’ offices, and nongovernmental

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organizations throughout Virginia. The initial inquiry yielded twelve cases
that appeared to meet each criterion. Further research suggested that one of
these cases was a close but not exact match.5 Although the ICVA provides
the individual case research summaries from all twelve cases on-line, the
findings and recommendations in the ICVA’s report are based on the set of
eleven official exonerations.6
Case investigations were conducted by pro bono lawyers from prominent
law firms. Attorneys read case files, reviewed court transcripts, and
interviewed participants, including law enforcement personnel, prosecutors,
defendants, their families and their counsel, and reporters. In a few cases
the information was fairly limited, where, for example, case documents
remain under seal, but in most cases researchers were able to provide an
expansive and in-depth description of the investigations and prosecutions
that led to erroneous convictions.
As the case investigations progressed, it became apparent that particular
practices constituted common themes among the cases. At this point the
ICVA gathered legal research investigating similar practices in other
jurisdictions as well as the federal and state norms that govern these
matters. These reports on law and practice from other jurisdictions helped
to inform the recommendations in this report.
Concurrently, the ICVA conducted its own survey of law enforcement
agencies and Commonwealth's Attorneys’ offices. Researchers contacted
276 law enforcement agencies, surveying staff on their practices for
eyewitness identification and custodial questioning. In addition, researchers
approached 120 Commonwealth's Attorneys’ offices, seeking information
on their discovery practices. Surveys were confidential, meaning that no
agency or office is identified in this report or the accompanying data. The
surveys and research methodology are described in Appendix B.
Following the completion of the case investigations, legal research into best
practices nationwide, and surveys of Virginia law enforcement agencies and
prosecutors, the ICVA convened first its steering committee and then the
advisory committee to consider the many findings and their ramifications.
The conclusions and recommendations in this report represent the
consensus of those two groups.
The following sections of the report describe some of the factors that have
contributed to erroneous convictions in Virginia and offer proposals to help
minimize the likelihood that these same mistakes will cause wrongful

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convictions in the future. In addition to this introduction, there are four
other sections to the report. Part Two presents a summary of the ICVA’s
findings. Part Three provides summaries of the eleven cases of official
exoneration. Part Four makes specific recommendations based upon
Virginia’s experience and legal research into best practices nationwide.
Part Five is a conclusion. The report also has two appendices, setting forth
the history of similar innocence commissions both in the United States and
abroad, and explaining the statewide survey of law enforcement agencies
and prosecutors’ offices. All supplementary materials, including the
complete case reports and research on post-conviction remedies in other
states, are available on-line on the ICVA’s web site, http://www.icva.us.
The ICVA hopes that this report will be received in the spirit in which it is
intended – as a serious, extensively researched series of recommendations
aimed at continued improvement to the Commonwealth’s criminal justice
system. The ICVA’s recommendations can improve the process of criminal
investigations and prosecutions in the Commonwealth, assuring Virginians
that police, prosecutors, and defense counsel are following the latest, best
practices to convict the guilty and protect the innocent.

The ICVA’s
recommendations
can improve the
process of criminal
investigations and
prosecutions in the
Commonwealth,
assuring Virginians
that police,
prosecutors, and
defense counsel are
following the latest,
best practices to
convict the guilty
and protect the
innocent.

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PART TWO
SUMMARY OF FACTORS THAT HAVE CONTRIBUTED TO
WRONGFUL CONVICTIONS IN VIRGINIA AND SUGGESTED
CRIMINAL JUSTICE RREFORMS FOR VIRGINIA
To the extent that the wrongful convictions that the ICVA reviewed may
have been avoidable, it is essential to understand how the errors occurred
and to institute new practices to minimize the likelihood of their recurrence.
Recognizing, of course, that each case presents unique facts, the ICVA has
identified the following factors which have been linked to erroneous
convictions in Virginia:

•

The honest, mistaken identification of defendants by victims or
other eyewitnesses, particularly in cases involving cross-racial
identifications. This problem is exacerbated by the heavy
emphasis placed on, and great credibility given to, eyewitness
identification in criminal prosecutions. The frailties of eyewitness
identifications are most pronounced when a prosecution proceeds
in the face of little corroborating evidence or even when the
available evidence points to the defendant’s innocence such as
when a victim’s initial description of the perpetrator does not
match the suspect’s characteristics.

•

Suggestive identification procedures, including photo arrays and
lineups that unduly highlight a particular suspect. These
problems are most pronounced when they reinforce an initial,
incorrect identification, such as when a victim picks the one color
picture out of an array of otherwise black-and-white photos and
then is shown that suspect in a lineup shortly thereafter.

•

“Tunnel vision” by police officers and detectives. Many of the
crimes were high profile, generating considerable press coverage
and a public demand for quick resolution. In some cases, law
enforcement became convinced that a particular suspect was the
actual perpetrator even when other factors suggested innocence
or alternative suspects.

•

Antiquated forensic testing methods of biological evidence that
was later shown to be exculpatory. With the availability of DNA
testing and the Commonwealth’s recent initiative to examine and

A VISION FOR JUSTICE

test biological evidence from old cases, many of these problems
have since been alleviated. Stricter evidentiary rules, better
preservation of biological evidence, and effective use of the
adversarial process to challenge the opinions of those who claim to
be experts would optimize the role of DNA technology and other
scientific evidence in preventing wrongful convictions.
•

Inadequate, if not ineffective, assistance of defense counsel. In
none of the cases did a reviewing court later find ineffective
assistance, but in several matters defendants had to rely on
inexperienced or inattentive attorneys, proving their innocence
only later when skilled counsel took over and devoted
considerably more time to the cases post-conviction.

•

Failure to disclose exculpatory reports or other evidence to the
defense. In some cases, prosecutors were unaware that detectives
or forensic specialists had relevant exculpatory evidence.

•

Interrogations involving suspects with mental incapacities.
Mentally impaired defendants are often confused and can be
more easily convinced to “confess” to a crime, even when they do
not understand the circumstances of the case.

•

Inconsistent statements by defendants. Under the pressures of a
criminal investigation, some suspects provided the police with
contradictory information, thereby focusing suspicion on
themselves. Officers understandably investigated these
defendants further when their stories changed or their alibis were
contradictory.

•

The unavailability of adequate post-conviction remedies to
address wrongful convictions once they have occurred. Virginia
had made significant progress in this area in the past two years.
However, even today, many of Virginia’s exonerees would have to
rely upon the clemency process and would have no remedy
available to them in the Commonwealth’s courts.

Some may say that
the cases identified
by the ICVA are
proof that the
criminal justice
system works –
that postconviction
processes
successfully and
eventually
exonerate the
innocent. However,
deciding whether
“the system
worked” depends
on the definition of
a working system.

Some may say that the cases identified by the ICVA are proof that the
criminal justice system works – that post-conviction processes successfully
and eventually exonerate the innocent. It is critical to understand, however,
that many of the exonerations discussed in this report occurred not because
of the traditional working of the system, but because lawyers, usually

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volunteering their time, continued to fight for their clients for many years,
in the face of almost insurmountable odds that were often erected by the
Commonwealth’s seeking to preserve the conviction.
Additionally, deciding whether “the system worked” depends on the
definition of a working system. The cost to victims and their families in
terms of the emotional trauma of realizing the actual perpetrator is still at
large or reliving the crime if the actual perpetrator is apprehended cannot be
measured. Even more significant is the trauma that is suffered by the
innocent individuals who are wrongfully imprisoned, often for lengthy time
periods. The average time from conviction to exoneration in the eleven
cases the ICVA examined was close to eleven years.
The ICVA recommends the following reforms to prevent wrongful
convictions in Virginia and to provide redress where wrongful convictions
occur. These recommendations highlight measures that would improve
Virginia’s criminal justice system and offer the latest and best practices to
law enforcement officers, prosecutors, and defense counsel alike.

Eyewitness Identifications

Only a single witness should participate in an identification procedure
at one time. When conducting identification procedures, law
enforcement personnel should include only one suspect per procedure,
should include participants who are not suspects, and should, to the
best extent possible, ensure a consistent appearance between suspects
and other participants so that suspects do not stand out.

A VISION FOR JUSTICE

Law enforcement personnel should adopt sequential rather than
simultaneous identification procedures.

If a photo array is used, law enforcement personnel should show the
photos to the witness one at a time, and they should obtain a statement
from the witness as to whether the person in the photo is or is not the
perpetrator, the degree of confidence of the witness in any
identification, and the nature of any similarities or differences the
witness observes between the photo and the perpetrator - all before
moving on to the next photo. The same procedure should be followed
if a live person lineup is used.

Virginia courts should permit, in appropriate cases, the introduction of
expert testimony on the issue of human memory as it relates to the
identification process and on the issue of best practices for eyewitness
identification procedures. Virginia courts should also instruct juries to
carefully consider the reliability of eyewitness identifications.

II. Interrogation Procedures
1.

The Virginia General Assembly should require law enforcement
personnel to videotape custodial interrogations of suspects in all
homicide and serious felony cases, to the extent practicable.

The Virginia General Assembly should require law enforcement
personnel to record the entire custodial interrogation process, including
the initial advice of rights given to suspects, from the beginning of

INNOCENCE COMMISSION FOR VIRGINIA

custodial interrogation in the stationhouse until the point when all
police questioning has ended.
3.

Law enforcement officers should avoid using high-pressure
interrogation practices when questioning children and suspects who
have developmental disabilities.

Virginia courts should permit, in appropriate cases, the introduction of
expert testimony concerning the factors that can contribute to false
confessions.

III. Discovery Practices
Virginia should amend the formal discovery rules to mandate open-file
discovery procedures.
IV. Unwarranted Focus on Single Suspect or "Tunnel Vision"

Law enforcement agencies should train their officers to pursue all
reasonable lines of inquiry, whether they point toward or away from a
particular suspect.

A VISION FOR JUSTICE

Defense Counsel

The Virginia General Assembly should adopt the remaining reforms
outlined by the Spangenberg Group, which in January 2004 released a
report on Virginia’s indigent defense system. The report was
commissioned on behalf of the American Bar Association Standing
Committee on Legal Aid and Indigent Defense. Although the General
Assembly created a new Indigent Defense Commission in March 2004 that
requires training and certification for lawyers defending indigent clients and
sets caseload limits for public defender offices, the following important
issues remain:
1.

The Indigent Defense Commission should implement a comprehensive
data collection system to provide an accurate picture of the provision
of indigent criminal services in Virginia.

VI. Scientific Evidence
1.

The Virginia General Assembly should require that all biological
evidence in serious felony cases be preserved to ensure it is available
for post-conviction DNA testing.

The Commonwealth should continue and expand its latest initiative to
examine and test biological evidence from old cases using DNA.

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The Virginia Supreme Court should adopt more stringent rules
governing the admissibility of scientific evidence in criminal cases.

The Commonwealth should diligently pursue the audit of the
Washington case.

VII. Post-Conviction Remedies

The Virginia General Assembly should extend the availability of the
writ of innocence to inmates who entered a plea of other than not
guilty.

The Virginia General Assembly should eliminate the limitation on the
number of petitions for a writ of innocence that an inmate who relies
upon non-biological evidence may file.

A VISION FOR JUSTICE

PART THREE
SUMMARY OF CASES
Researchers investigated eleven cases that fit the case selection criteria set
out by the ICVA, plus a twelfth case in which the defendant, though not
officially exonerated, had been released from prison under circumstances
suggesting serious error during the investigation phase of the case. While
the ICVA’s recommendations are based solely on the eleven cases of
official exonerations, which are previewed here, all twelve of the detailed
research reports that were compiled by the ICVA are available on-line at the
ICVA’s website, http://www.icva.us.
I.

Marvin Anderson

In 1982, an all-white jury in Hanover convicted Marvin Anderson, an 18year old African American man, of raping a white woman who erroneously
identified him in a lineup. Police investigators focused on Anderson
because the rapist had mentioned a white girlfriend, and Anderson was
known to be living with a white woman at the time. Anderson differed
from the victim’s physical description; unlike the attacker, he was darkcomplected, clean-shaven, and without scratches on his face. Detectives
obtained a color photo of Anderson from his place of employment, which
was the only color picture in an otherwise black-and-white photo array
shown to the victim. The victim identified Anderson as her rapist. Within
thirty minutes of the initial identification officers had arranged a lineup, at
which time the victim again picked Anderson.

Anderson was
convicted in a fivehour trial that
relied entirely on
the victim’s
identification.

Anderson was convicted in a five-hour trial that relied entirely on the
victim’s identification. Although DNA testing was not yet available at the
time, a supervisor from Virginia’s Bureau of Forensic Sciences testified that
she had performed blood typing on swabs from both Anderson and the
victim and she was unable to identify Anderson as the source of semen
samples collected in the rape kit. Stories had also begun to circulate in the
community that another man, Otis “Pop” Lincoln, was boasting of having
committed the rape. Unlike Anderson, Lincoln had a criminal record for
sexual assault and was, in fact, awaiting trial at the time for another sexual
attack. Once the victim identified Anderson, however, the police did not
pursue additional leads. In 1988, Anderson received a hearing on his
petition for a writ of habeas corpus. Lincoln appeared and formally
confessed to the crime, but the trial judge did not find Lincoln credible.

INNOCENCE COMMISSION FOR VIRGINIA

Anderson served 15 years for the rape, eventually winning parole in 1997.
As DNA testing became increasingly available, Anderson sought re-testing
of the samples from the rape kit. He was repeatedly told that biological
evidence from the crime could not be found. Then, in 2002, Anderson was
told that DNA evidence had been located, despite the fact that at the time,
the crime lab’s own internal protocol required that such evidence be
returned to the submitting police department, where it was routinely
destroyed. Anderson and his lawyers were successful in petitioning the
Circuit Court of Hanover County to order DNA testing, the results of which
positively excluded Anderson as a source of the semen sample and directly
implicated Lincoln. Anderson applied for and received a pardon from
Governor Warner and has received approximately $750,000 in
compensation from the General Assembly for his time in prison.
II.

Craig Bell

On October 5, 1986, a young woman was murdered in her apartment in
Virginia Beach. She had lived there with her fiancée, Craig Bell, who was
in the apartment at the time of the murder. The police investigation quickly
centered on Bell as the most likely suspect. He and the victim had
quarreled a few days prior to the murder; blood, clothing, and cigarettes
found at the scene of the murder were consistent with his involvement; and
Bell had made inconsistent statements to the police. However, the police
failed to identify certain fingerprints, clothing, and hair samples found at
the scene. Bell was convicted of second degree murder in 1987 and
sentenced to 20 years in prison.
Two months after Bell's conviction, Jesse Calvin Smith was apprehended
for peeping in windows late at night in the same apartment complex where
Bell had resided. Detectives quickly connected Smith to two rapes that had
occurred in the same apartment complex and after witness identifications he
was charged with the crimes. Upon further questioning and after being
shown pictures of the crime scene in Craig Bell’s apartment, Smith
confessed to the murder of Bell's fiancée. The next day the
Commonwealth’s Attorney petitioned the court to set aside Bell’s
conviction and release him from prison. On October 16, 1987, two days
after Smith confessed and two months following Bell’s incarceration, Bell
was released. Bell has received a formal apology from the
Commonwealth’s Attorney, but despite the introduction of two bills in
Virginia’s General Assembly, he has not received compensation.

A VISION FOR JUSTICE

III. Jeffrey Cox
Jeffrey Cox was sentenced to life plus 50 years for the August 31, 1990,
kidnapping and murder of a 63-year old Richmond woman whose brutally
stabbed body was found dumped along a dirt road. Cox was not initially
the chief police suspect, and no physical evidence linked Cox to the crime.
Because he was known to associate with the principal police suspect, Cox’s
photo was shown to two neighbors of the victim, who claimed that Cox was
the man who dragged the victim from her apartment late at night. Police
suspected another man, Billy Madison, but they never charged him. The
Commonwealth's case against Cox consisted of the testimony of the two
eyewitnesses and the fact that Cox was confused about his alibi. In a single
day he was tried, convicted and sentenced to life in prison plus fifty years.
Police then destroyed some of the physical evidence that had been gathered,
including potential DNA samples, even though the second perpetrator
remained at-large. After defense counsel bungled the direct appeals
process, Cox obtained new counsel to assist with his petition for a writ of
habeas corpus. His new attorney discovered that the full criminal history of
one of the eyewitnesses had not been presented to the jury, and that the jury
was never told that the other eyewitness had criminal charges pending at the
time she testified on behalf of the prosecution. In addition, the lawyer
determined that both eyewitnesses had given demonstrably false testimony.
A couple of years later, an FBI agent, at Cox's request, launched a federal
investigation into the murder and the Richmond Police Department's
investigation of that crime. The federal investigation unearthed exculpatory
evidence that had been collected by the Richmond police but never
presented to the jury. Despite mounting evidence of Cox's innocence and
questions of official misconduct, the Virginia Attorney General's Office
opposed Cox's post-conviction appeals. In 2001, a different man – Steven
Hood – was arrested and convicted of the same murder on the basis of
evidence uncovered by federal investigators, but the Commonwealth's
Attorney's Office continued to oppose Cox's habeas petition.

The federal
investigation
unearthed
exculpatory
evidence that had
been collected by
the Richmond
police but never
presented to the
jury in Jeffrey
Cox’s case.

Finally, in the fall of 2001, shortly after the Virginia Supreme Court had
granted Cox’s appeal in his habeas case, the Virginia Attorney General’s
Office reached a settlement with Cox's attorneys in which the
Commonwealth agreed that the writ should be granted, the convictions
vacated, and Cox should be released from prison. The trial court acted
accordingly and dismissed the original indictment. In 2002, the General
Assembly awarded Cox $750,000 for his eleven years of wrongful
incarceration.

INNOCENCE COMMISSION FOR VIRGINIA

IV.

Russell Gray

On June 30, 1986, an altercation broke out in Richmond between several
men, eventually leading to the shooting death of a young man. The
decedent's wife and stepson both named Russell Gray as the assailant. The
stepson was able to provide police officers a description of the perpetrator’s
clothing on the night of the murder – “Jamm-type” shorts – and picked
Russell Gray out of a photo book, saying that he had seen Gray pull the
trigger. The decedent’s wife, while not an eyewitness to the crime, placed
Gray at the scene of the crime moments before shots were fired and
approximately fifteen minutes afterwards. However, she contradicted the
other witness, saying that it was dark at the time of the shooting and that
Gray had been wearing sweat pants.

Although Michael
Harvey confessed
that he committed
the crime,
Virginia’s 21-day
Rule prevented
Russell Gray’s
release.

At trial, Gray called several witnesses who placed him at a different
location at the time of the murder. He also told the jury that he never wore
shorts because of a disfiguring scar on his leg, which he showed to jurors.
Ultimately, the defense argued that Gray had little motive to commit the
crime and that the only eyewitness to the crime, the victim’s stepson, may
have mistaken another man for Gray. Gray was convicted in a one-day trial
and sentenced to 52 years in prison. His attorney, however, continued to
investigate the case, interviewing more witnesses who all pointed to a
different man, Michael Harvey, as the shooter. Harvey subsequently was
interviewed by Detective Quick of the Richmond Police Department, the
primary investigator on the case, at which time Harvey confessed to the
crime.
Virginia’s 21-Day Rule, however, prevented Gray’s release. Left without
judicial options, Gray wrote to Learned Barry of the Commonwealth’s
Attorney’s Office, pleading his innocence. Barry was impressed with
Gray’s letters and agreed to meet with him. Convinced that Gray was
innocent and that Harvey committed the crime, Barry took the case to the
Virginia Parole Board, which recommended a pardon to the Governor’s
Office. In April 1990, three years after Russell Gray was wrongly
convicted, Governor Wilder pardoned Gray and released him from prison.7
V.

Edward Honaker

In 1984, a young woman was pulled out of her car by a man wearing
camouflage and was raped and sodomized along the Blue Ridge Parkway.
Her boyfriend was in the car with her and the two of them created a
composite sketch of the attacker. Later, after Edward Honaker became a

A VISION FOR JUSTICE

suspect in a different rape case (for which he was eventually cleared), the
police showed his picture to the young woman, who positively identified
him as her attacker.
In addition to this eyewitness identification, the prosecution presented
testimony from a forensic hair expert, who said Honaker was a definitive
match with hair found on the victim’s shorts. Prosecutors introduced
evidence that Honaker drove a truck that resembled the attacker’s, and
camouflage clothes were found in Honaker’s residence. In response, the
defense offered alibis from Honaker, his family and friends, but the alibis
were challenged by prosecutors and ultimately discounted by the jury. On
April 10, 1985, Honaker was sentenced to three life sentences plus 34 years
on seven felony counts.
After his conviction, Honaker sought the assistance of Centurion Ministries,
an organization that works to free the wrongfully convicted. Centurion's
investigation revealed that the victim and her boyfriend had been, at times,
hypnotized in recalling the facts of the crime and that the initial description
of the assailant was inconsistent with Honaker. Additionally, Honaker had
undergone a vasectomy in 1976, a fact not known to the prosecution's
witnesses and, although raised by Honaker in his testimony during the trial,
never corroborated with any medical records. Centurion then began
working with the Innocence Project at Cardozo Law School to secure DNA
testing on the biological evidence collected in Honaker's case.
The prosecution agreed to release the evidence, but DNA testing was
complicated by the victim’s admission of a secret lover who could have
contributed to the evidence. After several rounds of testing, including
examinations by a private laboratory and the Virginia Division of Forensic
Science, Honaker and both of the victim’s boyfriends were excluded as
possible sources of the biological evidence from the crime. Based on the
DNA exclusion, Honaker filed for clemency. His petition was joined by the
Commonwealth. On October 22, 1994, Governor Allen granted Honaker
clemency. Honaker was released from prison after ten years of
incarceration.
VI.

Julius Ruffin

In 1981, a black man with a knife broke into a Norfolk woman’s apartment
and sodomized and raped her. The victim, a white woman, worked at
Eastern Virginia Medical School at the time, where Julius Ruffin also
worked as a maintenance man. Shortly after the rape, the victim had been

INNOCENCE COMMISSION FOR VIRGINIA

asked by police to look at mug shots, and she picked a photo of a darkskinned man who was not Ruffin. However, several weeks after the attack
the victim saw Ruffin, a light-skinned African American, and immediately
called the police saying that she was certain she had just seen her attacker.
The victim was a compelling witness, and when coupled with the testimony
of a forensic scientist that Ruffin’s blood matched the rapist’s blood and
that of roughly eight percent of the male population, the prosecution had a
good case. Ruffin testified at trial, also calling his brother and the brother’s
girlfriend, who testified that they were all together on the night of the rape.

After seven
minutes of
deliberations, an
all-white jury
convicted Julius
Ruffin of rape and
related charges, the
punishment for
which was life in
prison.

The first trial deadlocked, nine white jurors in favor of conviction and three
black jurors prepared to acquit. The case was declared a mistrial. A second
trial ended the same way, with jurors split along racial lines. During voir
dire at the third trial, the prosecutor used his peremptory challenges to
remove the four black members of the jury pool. Ruffin’s attorney did not
object. After seven minutes of deliberations, an all-white jury convicted
Ruffin of rape and related charges, the punishment for which was life in
prison.
With the rise of DNA testing, Ruffin began a letter-writing campaign to
have the Commonwealth re-test the evidence in his case. The Circuit Court
of Norfolk responded that all evidence from his case had been destroyed in
1986. The Division of Forensic Science in Richmond and its lab in Norfolk
also responded that they could not comply with his request. In truth, the
evidence was available, but no one had checked thoroughly to determine its
existence.
In 2002, Ruffin filed a request under a newly enacted Virginia statute for
DNA testing of evidence in his case. The Commonwealth’s Attorney had a
prosecutor contact the state lab to see if any evidence still existed. The
forensic scientist – now deceased – who had worked Ruffin’s case had
saved biological material in the lab’s archives. With a court’s order to
reexamine the evidence, further testing excluded Ruffin as the rapist and
identified a defendant already incarcerated in Virginia.
Ruffin was released 21 years after his original arrest, the Governor having
issued Ruffin a pardon in March 2003. The victim has written Ruffin
expressing her “sorrow and devastation” at his conviction, but in issuing a
pardon, Governor Warner said, “I find no fault with the verdict of the jury
based upon the evidence available to it at the time of trial, nor with the
actions of the attorneys for the Commonwealth or the court at trial.”

A VISION FOR JUSTICE

VII. Walter Snyder
Walter Snyder was convicted and sentenced to forty-five years in prison for
the burglary and rape of an Alexandria woman in 1985. In a show-up
identification, the victim named Snyder, who lived across the street, as the
attacker, although she had been less certain in an earlier photo array.
During their investigation, police found red shorts that were similar to the
assailant’s among Snyder’s possessions, and officers claimed that Snyder
had confessed, although he vigorously denied that he ever did. Snyder’s
nose was broken while he was in police custody, although there are
differing accounts of what transpired.
The defense called a few alibi witnesses, who claimed that Snyder had been
in bed sleeping at the time of the attack. Conventional serology failed to
exclude Snyder as the perpetrator, as he had the same blood type as the
attacker. But the strongest evidence at trial was that of the victim, who
pointed at Snyder and identified him as her assailant. Snyder was
convicted.
Snyder and his mother went through eleven attorneys after conviction to
secure DNA testing of the biological evidence in the case. The Alexandria
Commonwealth’s Attorney agreed to testing, and in 1992 tests appeared to
exclude Snyder as the rapist. However, Snyder’s lawyer at the time did not
know how to proceed to secure Snyder’s release. With the help of Cardozo
Law School’s Innocence Project, the biological evidence was tested once
more with the same result. Afterward, the FBI looked at the results and
confirmed the methods used. In 1993, the Commonwealth’s Attorney
appealed to Governor Wilder for Snyder’s clemency. Governor Wilder
signed an executive order on April 23, 1993, releasing Snyder. Snyder
subsequently filed a civil suit for wrongful conviction and police
misconduct. That case has since settled, with the terms of settlement sealed
and confidential.
VIII. David Vasquez
In 1984 a young lawyer was raped and strangled in her Arlington
apartment. Two neighbors, including one whose brother was a potential
suspect, placed David Vasquez at or near the crime scene. Vasquez, who
was described by two neighbors as “creepy” and a “peeping Tom,” used to
live in the victim’s neighborhood. He was known to have a low intellect
and had moved to Manassas, about 30 miles away, where he worked at a
McDonald’s restaurant and lived with his mother.

INNOCENCE COMMISSION FOR VIRGINIA

Arlington County detectives visited Vasquez and in interrogation were
successful in obtaining a confession. Much of the confession consisted of
the detectives feeding facts to the suspect, which Vasquez simply parroted
back and affirmed. Vasquez later fell into “a spell,” in which he seemed
possessed, and began to repeat the facts of the crime (which were consistent
with those provided to him in the interrogation). Detectives believed they
were dealing with a disturbed murderer.

Much of the
confession
consisted of the
detectives feeding
facts to the suspect,
which David
Vasquez simply
parroted back and
affirmed.

Officers had obtained Vasquez’s confession in two separate sessions, before
which however they had not read him his Miranda rights. Vasquez’s
admissions, thus, were excluded, but a third confession that had been taken
a day after the original interrogation and followed the required Miranda
warnings, was admitted. Left with the prospect of a capital conviction for a
crime that he likely did not commit, Vasquez’s lawyers convinced him to
plead guilty to second degree murder, a plea offered to him by the
Commonwealth’s Attorney and accepted by the court.
About three years following the first rape and murder, Arlington
experienced a similar crime. The detective assigned to the case, Joe
Horgas, recalled Vasquez’s case and the fact that detectives believed at the
time that Vasquez had not acted alone. Police, however, had done little in
the interim to search for Vasquez’s partner. Horgas visited Vasquez in
prison about the new crime and left with the sense that Vasquez was not
guilty.
The new rape and strangulation fit into a pattern of similar crimes that had
been committed along a line from Richmond to Arlington. The crimes had
begun in 1982 and continued through the first Arlington murder, then
reaching a three-year lull before they resumed with a 1987 murder in
Richmond. Horgas became convinced that the crimes were linked and that
they were the work of a single suspect, Timothy Spencer, against whom
Horgas began to build a case. At the time, Horgas’s methods were novel,
and until he convinced the FBI of Spencer’s guilt, several of his colleagues
remained skeptical. But the head of the FBI’s Behavioral Science Unit
replied that the so-called “South Side Strangler” was responsible for both of
the Arlington murders and that he had acted alone. This seemed to rule out
Vasquez, who was in prison at the time of the second murder.
In response to the FBI’s report as well as the results of its own internal
investigation, the Arlington Commonwealth’s Attorney became convinced
of Vasquez’s innocence and contacted the defendant’s attorney to file a

A VISION FOR JUSTICE

pardon application with the Governor. In January 1989, Governor Baliles
pardoned Vasquez, who was released from prison that evening. Subsequent
to his release, details of Vasquez’s time in prison arose. Despite an
agreement in his plea deal, Vasquez had not been assigned to a psychiatric
unit in prison, instead remaining in the general population where he was
repeatedly raped and abused. In response, the General Assembly passed a
$117,000 annuity that provides Vasquez a $1,000 monthly payment. In a
separate matter, Spencer was convicted of murder, sentenced to death, and
executed.
IX.

Earl Washington

In 1984, Earl Washington, Jr., an African American man with an IQ of
around 69, was convicted and sentenced to death for the rape and murder of
a young, white mother of three from Culpeper. Washington was arrested on
an unrelated charge a year after the murder, and while in custody, he
confessed to five other crimes, including the Culpeper murder. Although
investigators easily dismissed his false confessions to four of the crimes,
they interrogated and eventually charged Washington in connection with
the Culpeper murder despite several inconsistencies between his confession
and known facts of the crime.
Questioning revealed that Washington did not know the race of his victim,
the address of the apartment where she was killed, or that she had been
raped. Only after three attempts at a rehearsed confession did authorities
accept and record Washington's statement. Washington had to be taken to
the crime scene three times and coached by officers to pick out the victim’s
apartment.
The prosecution's case hinged on Washington's statements as well as his
identification of a shirt given to the police by the victim's family six weeks
after the crime. The defense failed to point out the inconsistencies of the
prosecution's case, especially the results of the Commonwealth's serological
analysis of the seminal fluid found on the blanket at the scene of the crime,
which did not match Washington. At trial, the Commonwealth’s
psychologist testified, claiming that Washington was competent when his
statement was given. The defense did not present a competing witness.
At the penalty phase of the trial, Washington’s inexperienced defense
counsel did not offer any counterargument to the jury concerning a sentence
of death. The jurors returned with their verdict of death on January 20,
1984. In a separate matter, Washington pled guilty in May of that year to a

INNOCENCE COMMISSION FOR VIRGINIA

case of burglary and malicious wounding and was sentenced to two
consecutive fifteen-year sentences.
Washington's direct appeal failed. With an execution date of September
1985 looming, Washington was able to retain pro bono counsel and secure
a stay of execution only nine days before he was scheduled to die.
However, the U.S. Court of Appeals for the Fourth Circuit denied
Washington’s habeas claims, including the failure of his trial counsel to
introduce exculpatory biological evidence and because of his “confessions.”

Although the
victim could not
provide police with
enough
information to
design a composite
of her attacker, she
later identified
Troy Webb.

Washington was successful in obtaining DNA testing of the biological
evidence, which excluded him as a contributor of the seminal stain found at
the scene of the crime. However, Washington was barred by the 21-Day
Rule from introducing the new evidence to prove his innocence. Instead, on
January 14, 1994, then Governor Wilder commuted Washington's sentence
to life imprisonment. Washington remained in prison for six more years
before his counsel persuaded then newly elected Governor Gilmore to seek
additional DNA testing. On October 2, 2000, Governor Gilmore announced
the results of the new tests and granted Earl Washington an absolute pardon
for the capital murder conviction, although Gilmore refused to consider the
unrelated burglary and malicious wounding charges.
Notwithstanding the Governor’s refusal to pardon the lesser charges, the
Virginia Department of Corrections determined that Washington would
have been eligible for parole on these convictions a decade earlier. On
February 12, 2001 Earl Washington was released from prison to parole
supervision. He has since filed a civil suit alleging that police and
prosecutors coerced him into confessing to a crime he did not commit and
ignored details that proved his innocence.
X.

Troy Webb

On January 23, 1988, a white, 25-year old Virginia Beach woman was
robbed and raped in the parking lot of her apartment complex. In the
subsequent investigation, the victim could not provide police with enough
information to design a composite of her perpetrator, and she was unable to
identify him in a mug-shot book. Three weeks after the attack, however,
the investigating detective went to the victim’s house and presented her
with a photographic lineup of six individuals. This time, she was able to
make an identification: she identified one of the men in the photographic
lineup, Troy Webb, an African American, as the perpetrator. The detective
returned to her house the next day and presented her with a second

A VISION FOR JUSTICE

photographic lineup. Again, she identified Webb. Based on this
identification as well as serology tests that could not conclusively rule out
Webb (nor the victim’s boyfriend) as the perpetrator, Webb was arrested
and charged with rape, abduction with intent to defile, robbery, and use of a
firearm during the commission of a robbery.
In a two-day jury trial the following year, Webb was found guilty of all
charges and was sentenced to forty-seven years in prison. Webb continued
to maintain his innocence. In 1996, lawyers from Cardozo Law School’s
Innocence Project contacted the Virginia Beach Commonwealth’s
Attorney’s Office, seeking to retest the DNA evidence in the case. Deputy
Commonwealth’s Attorney Pamela Albert, the same lawyer who had
prosecuted Webb, agreed to petition the Circuit Court to order the testing of
evidence from the victim, her boyfriend at the time, and Webb. Subsequent
DNA tests excluded both the boyfriend and Webb. With support from the
Commonwealth’s Attorney for Virginia Beach, the Innocence Project
successfully petitioned Governor Allen for clemency, which he granted on
October 16, 1996.
XI.

Arthur Lee Whitfield

On August 14, 1981, two women were raped within forty-five minutes of
each other in the same neighborhood in Norfolk, Virginia. Both women
were accosted at knife-point by a black man as they got out of their cars
near their homes. Both women were forced by their attacker to go to a
near-by secluded spot where they were sodomized, raped, and robbed.
The police investigation of these two rapes focused on Arthur Whitfield
because police suspected him of committing a burglary that occurred two
miles away from the rapes on the same night. The burglar matched the
same general description as the rapist and, like the rapist, the burglar carried
a knife. The police put Whitfield's color photograph in an array containing
color photographs of five other people and showed the array to the first rape
victim. She selected Whitfield's photograph and said she was ninety-five
percent sure he was the man who raped her. Both victims viewed separate
in-person lineups the next day at the police station, and both victims
immediately identified Whitfield as their assailant.
Whitfield, who was twenty-seven years old, was charged with sexually
assaulting the two women and with attempting to break into a third woman's
home. The trial judge later severed the three cases and set them for separate
trials. In January 1982, Whitfield stood trial for the rape, sodomy, and

INNOCENCE COMMISSION FOR VIRGINIA

robbery of the first victim. The judge permitted both rape victims to testify
at the first trial and each victim identified Arthur Whitfield as her attacker.
Whitfield did not testify in his own defense, but four defense alibi witnesses
testified that Whitfield attended a birthday party on the night of the incident
and was present at the party at the time of the crime. The jury convicted
Whitfield on all three counts and sentenced him to a total of forty-five years
in prison. Fearing that another jury would convict him in his upcoming trial
for the rape of the second woman and sentence him to an equally long
prison term, Whitfield pled guilty to the second offense. Pursuant to the
plea agreement, the judge sentenced Whitfield to an additional eighteenyear sentence, and the Commonwealth dropped the attempted burglary
charges in the third case.
Although Whitfield pled guilty to the second offense, he always maintained
he was innocent of all of the charges. The Virginia Supreme Court rejected
his appeal from his trial in the first rape case and affirmed his conviction,
finding no reversible error. Whitfield later asked the Circuit Court for the
City of Norfolk for a copy of his trial transcript so that he could prepare a
petition for habeas corpus relief, but his petition was rejected and he never
filed a habeas petition.
A statute enacted in 2002 allows Virginia inmates to petition the courts to
order the preservation and DNA testing of biological material that might
prove the inmate's innocence. Whitfield subsequently filed a pro se petition
under this statute, and the court later appointed a lawyer to assist him. The
Virginia Division of Forensic Science discovered that, although all of the
other evidence in Whitfield's cases had been destroyed, the serologist who
originally examined the evidence in his cases had taped samples from the
rape kits in both cases to the inside of her files. DNA testing of those
samples later showed that Whitfield did not match the DNA from the semen
found in either rape case. Instead, the DNA from both rapes matched the
profile of another person who was already serving time in a Virginia prison
for a subsequent rape. Whitfield was immediately released on parole on
August 23, 2004, after serving twenty-two years in prison.

A VISION FOR JUSTICE

PART FOUR
RESEARCH AND RECOMMENDATIONS
BEST PRACTICES FOR VIRGINIA
Fortunately, post-conviction processes successfully and eventually
exonerated all of the individuals whose cases the ICVA reviewed. It is
important to understand, however, that many of the exonerations discussed
in this report occurred not because of the traditional working of the system,
but because lawyers, usually volunteering their time, continued to fight for
their clients for many years, in the face of almost insurmountable odds.
Moreover, the fact that all eleven of the ICVA’s exonerees obtained relief is
largely a function of the ICVA’s case selection criteria. The ICVA’s report
focuses only on those cases in which a defendant was officially exonerated
of serious felonies, but the factors leading to these wrongful convictions
apply more generally to the Commonwealth’s criminal justice system. It is
possible, then, that other innocent defendants whose cases do not meet the
ICVA’s conservative criteria remain imprisoned.8 Moreover, to the extent
that wrongful convictions occur in the future, post-conviction remedies in
Virginia, even after recent reforms, still do not provide adequate or
reasonable avenues for relief in many cases.
The following sections of this report address factors that have contributed to
wrongful convictions in the Commonwealth, and present recommendations
to minimize the likelihood that similar mistakes will occur in the future.

Eyewitness Identifications

Introduction

Pretrial eyewitness
identifications are
among the most
powerful tools
available to police
and prosecutors in
criminal
investigations and
criminal trials.

Pretrial eyewitness identifications are among the most powerful tools
available to police and prosecutors in criminal investigations and criminal
trials. Out-of-court procedures in which victims or witnesses identify a
suspect as the person who committed the crime often seal the fate of an
accused long before trial. A defendant who chooses to go to trial despite
being identified as the perpetrator faces an uphill and daunting battle, for
judges, juries, and the public place overwhelming weight on the testimony
of eyewitnesses and victims of crime when they point to a defendant in
court and state: "That is the person who committed this crime."

INNOCENCE COMMISSION FOR VIRGINIA

Seventy-five
percent of the more
than 100 DNA
exonerations
nationwide involve
mistaken
eyewitness
identifications.
Virginia's history of
wrongful
convictions mirrors
this tendency.

This supreme confidence is frequently misplaced, for mistaken pretrial
eyewitness identifications rank high among the factors that cause innocent
people to be convicted of crimes that they did not commit. Seventy-five
percent of the more than 100 DNA exonerations nationwide involve
mistaken eyewitness identifications. 9 Virginia's history of wrongful
convictions mirrors this tendency. Psychological and social research
suggests that common pretrial identification procedures, widely used by law
enforcement in the Commonwealth, contribute to and can actually produce
mistaken identifications. This same body of research verifies that simple
reforms that have little or no financial costs and that do not burden or
impede law enforcement can effectively reduce the possibility of mistaken
identifications and make identification procedures more accurate and
reliable. These best practices also can help reduce baseless claims of
inappropriate police behavior in the identification process.
B.

Virginia Law on Eyewitness Identification

More than thirty years ago, the United States Supreme Court set the
constitutional standard for determining whether a pretrial identification by a
witness is reliable and may be used at trial against an accused.10 Only those
identification procedures that are “so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification” are
unreliable, violate due process, and may not be used in court.11 The
Virginia Supreme Court, like other state courts, has implemented the U.S.
Supreme Court's standard by applying a totality of the circumstances
approach in weighing pretrial identifications.12 Virginia courts consider
five factors: (1) the witness’s opportunity to view the criminal at the time
the crime was committed; (2) the witness’s degree of attention during the
incident; (3) the accuracy of the witness’s prior description of the
perpetrator; (4) the level of certainty demonstrated by the witness during the
identification procedure; and (5) the length of time between the crime and
the identification.13
In practice, the Virginia courts reject most challenges by defendants
alleging suggestive and unreliable identification procedures. Even overly
suggestive identification procedures have been admitted in court when the
identifications were deemed otherwise reliable. For example,
identifications in which the accused stood out as distinctive among the
array,14 in which the accused was viewed alone rather than in a group,15
and even procedures conducted after eyewitnesses were told a specific
suspect was the perpetrator, have all been admitted at trial against
defendants after courts concluded that the witnesses' identifications of the
accused were reliable.

A VISION FOR JUSTICE

The Virginia courts leave the decision whether to allow expert testimony on
eyewitness identification to the discretion of the trial judge. However, the
courts have only sanctioned expert eyewitness testimony in narrow
circumstances, such as cases involving "cross-racial identification,
identification after a long delay, identification after observation under
stress, and psychological phenomena as the feedback factor and
unconscious transference."16 Virginia courts have also consistently refused
to permit special jury instructions concerning reliability of eyewitness
identifications, reasoning that these instructions have the "effect of
emphasizing the testimony of those witnesses who made identifications."17
It is possible that Virginia law and practice may soon change on some
aspects of eyewitness identification. The Virginia State Crime Commission
studied identification procedures utilized by law enforcement agencies in
the Commonwealth, concluding in a January 2005 report that “there is
overwhelming psychological evidence supporting the need for changes in
the current procedures Virginia law enforcement is required and trained to
use in conducting in-person and photographic lineups.” As part of that
report, the Crime Commission issued six recommendations to:18
•

Amend the Code of Virginia to require local police and sheriff’s
departments to have a written policy for conducting in-person and
photographic lineups.

•

Request the Department of Criminal Justice Services (“DCJS”), in
cooperation with the Virginia State Crime Commission, to establish a
workgroup to develop a model policy for conducting in-person and
photographic lineups.

•

Request DCJS, through regulation, to amend the entry level and inservice training requirements regarding lineups to include only use of
the sequential method, by October 1, 2005.

•

Request DCJS to work with the Virginia Law Enforcement
Professional Standards Commission to include the sequential method
for conducting lineups as part of the accreditation process for law
enforcement agencies.

•

Require DCJS, in conjunction with the Crime Commission, work with
the Virginia Sheriff’s Association and the Virginia Chiefs of Police
Association to assist members in using and understanding the benefits

The Virginia State
Crime Commission
has concluded that
“there is
overwhelming
psychological
evidence
supporting the
need for changes …
in conducting inperson and
photographic
lineups.”

INNOCENCE COMMISSION FOR VIRGINIA

of the sequential method of lineups; presentation to each association’s
annual meetings will occur.
•

Amend the Code of Virginia to designate the Virginia State Police,
through their oversight of the Central Criminal Records Exchange, as
the repository for all mug shots and queries for photographic lineups.

This report was submitted to the Virginia General Assembly in early 2005,
and the Assembly subsequently adopted requirements for written policies
for conducting in-person and photographic line-ups.
C.

Eyewitnesses
substantially
overestimate the
amount of time
that they witnessed
an event and
focused on a
suspect's face,
especially when
they are under a
great deal of stress.

Eyewitness Identification Research

When the U.S. Supreme Court and the Virginia Supreme Court adopted
standards governing the reliability of eyewitness identifications, little
empirical research had been done to test whether the rules used by courts to
assess the effects of suggestive eyewitness identification procedures were
themselves reliable.19 Since then, however, psychologists have conducted
numerous studies on the reliability of eyewitness identifications that call
into question whether these confirming factors adequately guard against
mistaken identifications.20 These studies identify three primary flaws in the
U.S. Supreme Court’s standard and demonstrate that current methods do not
account for either the vagaries of individual memory or the suggestive
methods that can fill in the blanks in that memory and cause erroneous
identifications.
The first factor used by the courts – an eyewitness's opportunity to view the
assailant – has been shown to rely too heavily on the witness's “self
report,”21 and has been empirically proven to be highly unreliable.22
Eyewitnesses substantially overestimate the amount of time that they
witnessed an event and focused on a suspect's face, especially when they
are under a great deal of stress.23 At the same time, witnesses typically
underestimate the amount of time the perpetrator's face was out of view.24
These findings critically undermine the reliability of the second factor used
by the courts – the eyewitness's degree of attention during the incident.
Again, this factor relies upon self-reporting, which can be extremely
unreliable when the witness is under a great deal of stress.
Assessing the accuracy of prior descriptions of the perpetrator by
eyewitnesses – the third factor used by courts – also is based on a faulty
premise.25 This factor presupposes that if the eyewitness’s description of

A VISION FOR JUSTICE

the perpetrator given soon after the crime accurately describes the
defendant, the witness's subsequent identification of the defendant is likely
reliable. In fact, however, there is no meaningful correlation between a
witness's description of the perpetrator and the accuracy of the witness's
subsequent identification of a particular suspect in a lineup.26
Research shows that suggestive identification procedures, including
comments and feedback from law enforcement to eyewitnesses, can
significantly contribute to mistaken identifications.27 In a 1998 study,
participants were shown a video of a suspect they were later told committed
a crime. They then viewed a photo array that did not include the correct
suspect, and were asked to make an identification.28 After making an
identification, researchers gave the participants either positive feedback,
negative feedback, or no feedback at all, and then researchers interviewed
the participants about their identification.29 The results of the experiment
showed that participants who were given positive feedback not only gave
much higher estimates of their level of certainty at the time they made their
identification, but they also gave higher estimates of the quality of their
view of the suspect, the speed with which they made the identification, the
quality of their memory of the incident, their degree of attention and the
ease with which they made the identification – even though they all had
identified the wrong photo.30
These results are striking because they indicate that suggestion during an
identification process "leads eyewitnesses to distort their reports of the
witnessing experience across a broad array of questions."31 Yet this type of
inherently inaccurate self-reporting is a significant factor that courts in
Virginia and elsewhere use to assess the reliability of eyewitness
identifications. As a result, the very "existence of suggestiveness [in the
identification process] serves to guarantee that the witness will pass" the
reliability test, a test that is then used to justify the suggestive procedure.32

There is no
meaningful
correlation
between a witness's
description of the
perpetrator and the
accuracy of the
witness's
subsequent
identification of a
particular suspect
in a lineup.

This body of research reveals two overarching concerns with traditional
identification procedures. First, research shows that suggestive comments –
both unconscious and intentional – by law enforcement personnel or others
that confirm a witness's identification can significantly and erroneously
increase the witness's confidence in an identification, even if the witness is
mistaken.33 Other suggestive procedures, such as those that present the
suspect in ways that make the suspect stand out from the other participants,
can give witnesses false confidence in their identifications. Moreover,
witnesses whose confidence has been inflated often deny that a reinforcing
comment or suggestive lineup in any way influenced their identification.34

INNOCENCE COMMISSION FOR VIRGINIA

Witnesses are
prone to identify
the individual that
most resembles the
offender, rather
than to refrain
from making an
identification if
they are not sure or
do not see the
perpetrator.

The second concern involves the problem of "relative judgments" – a
witness’s tendency to select the individual in an identification procedure
who looks most like the offender.35 Under traditional police procedures,
officers ask witnesses to view a group of photographs displayed together or
a group of individuals shown together in a lineup, and ask them whether
they can identify the perpetrator(s). Because there is always someone in the
group who looks more like the actual offender than anyone else, witnesses
are prone to identify the individual that most resembles the offender, rather
than to refrain from making an identification if they are not sure or do not
see the perpetrator.36 Research shows that witnesses then confuse or replace
their memory of the true perpetrator with the image of the person who
looked most like the offender in the identification procedure.37
To address these problems, researchers recommend that witnesses be shown
photographs or individuals in a lineup sequentially – that is, one at a time –
rather than all together as a group. Researchers recommend that witnesses
be asked to determine, upon looking at each photograph or individual,
whether the witness recognizes the perpetrator. A recent, comprehensive
analysis of twenty-five studies comparing simultaneous and sequential
lineups and photo array procedures indicated that sequential procedures
reduced the chances of a mistaken identification by nearly one-half.38 This
study also suggested that sequential techniques might reduce the rate of
accurate identifications when the culprit is present in the identification
procedure, although the reduction is not nearly as pronounced as the
reduction in mistaken identifications.
D.

Virginia Law Enforcement Identification Procedures and
Practices

The ICVA received responses to its survey from 108 Virginia law
enforcement agencies that have general law enforcement functions and
report that they regularly conduct pretrial identification procedures with
victims and witnesses. As Table One indicates, about six percent of these
agencies reported that they use the most suggestive identification
procedure: showing a witness a single photograph of a suspect. Nearly
sixty-three percent of agencies reported using show-up identifications,
when a suspect was quickly apprehended by police near the scene of the
crime and is shown to eyewitnesses. Twenty-eight percent of the agencies
use in-person lineups as an identification tool, and ninety-eight percent
show multiple photographs to eyewitnesses in photo arrays or photo
spreads.

A VISION FOR JUSTICE

TABLE ONE – OUT-OF-COURT IDENTIFICATION METHODS
USED BY AGENCIES WITH LAW ENFORCEMENT DUTIES
Identification Method

% of Agencies That
Employ Method

Show-Ups

Lineups

Photo Arrays

Single Photo

N = 108
A number of Virginia law enforcement agencies exacerbate the weaknesses
of eyewitness identification by the procedures they employ. In threequarters of the cases reported to the ICVA in which identification
procedures were used, the officer in charge “always” or “mostly” knows the
identify of the suspect who is the subject of the procedure. Although
eighty-five percent of law enforcement agencies report that they never tell
eyewitnesses that the suspect is included in a lineup or photo array, nearly a
quarter fail to tell witnesses that they do not have to identify anyone in the
identification procedure. When showing photos to eyewitnesses, seventyseven percent of responding agencies present the photographs together in a
group, while fewer than fifteen percent display the photographs one at a
time. Similarly, eighty-three percent of agencies that use in-person lineups
present the participants together in a group; just two percent show the
participants one at a time. These findings are consistent with those obtained
by the Virginia State Crime Commission, which in 2004 found that less
than five percent of responding law enforcement agencies in the
Commonwealth “solely us[e] the sequential method to conduct
photographic lineups.”39 Nor do departments videotape eyewitness
identifications so that jurors can observe the entire process. Seventy-eight
percent of agencies reported that they never videotape, while an additional
fourteen percent said they rarely do so.

A number of
Virginia law
enforcement
agencies exacerbate
the weaknesses of
eyewitness
identification by
the procedures they
employ.

Several law enforcement agencies submitted comments along with their
survey responses that reflect sensitivity to suggestive identification
procedures. Some departments said they ask witnesses to articulate a
percentage of certainty for their identification or ask witnesses if they are
“one hundred percent positive.” One agency said it usually asks witnesses:

INNOCENCE COMMISSION FOR VIRGINIA

if they see [the] suspect. Witness[es] must indicate they are absolutely
sure of identity, we do not [accept] maybes . . . . We absolutely require a
very positive response on identification. However, NO pressure is put on
witnesses and witnesses are NOT told to identify someone unless there is
no doubt in their mind. [Emphasis in original.]

In the
Commonwealth,
nine of the eleven
official
exonerations
investigated by the
ICVA involved
mistaken
eyewitness
identifications.

Another department said witnesses are told they do not have to identify
someone, "especially if there is any hesitation evident," and a third
department said it uses a standard instruction sheet that informs witnesses
they are not required to identify any of the photographs. One law
enforcement agency said it recently switched from showing photographs to
witnesses simultaneously to showing them sequentially. Finally, in
response to the survey question asking whether the officer administering
the identification procedure knows the likely suspect, one agency said that
its officers always do, "but we are considering getting an officer that is not
familiar with the case."
E.

Mistaken Identification in the Cases of Virginia Exonerees

Nationally, over seventy percent of exonerations included mistaken
identifications among the factors that led to wrongful convictions.40 In the
Commonwealth, nine of the eleven official exonerations investigated by
the ICVA involved mistaken eyewitness identifications.41 Wrongful
convictions due to mistaken identifications seem to be particularly
prevalent in rape and sexual offenses cases. Nationwide, eighty-eight
percent of wrongful rape convictions were based in large part on
misidentifications. In Virginia, seven of the eight sexual offense cases
studied by the ICVA included a mistaken identification by a witness or
victim. Race, and particularly the propensity for error when members of
one race attempt to identify suspects from another race, also plays a role in
mistaken identifications both nationally and in Virginia.42 Across the
country, fifty percent of exonerated rape defendants were black men
misidentified by white women, a ratio similar to that found in the cases
examined by the ICVA.
1.

Marvin Anderson

Marvin Anderson's case is a telling example of how a mistaken
identification can lead to the conviction of an innocent man. Although
Marvin Anderson did not match the victim's physical description of her
attacker in several important ways, the police included his photograph in a

A VISION FOR JUSTICE

photo identification procedure shown to the victim. During the initial photo
identification, the police showed the victim between six and ten
photographs. All of the photographs were black and white mug shots
except for Anderson's, which was a color photograph taken by his
employer. Within half an hour of the photo lineup, the victim viewed an inperson lineup, also including Anderson, in which she again identified him
as her assailant. Anderson was the only one of the seven live lineup
participants whose picture was also in the photo array.
2.

Walter Snyder

In Walter Snyder's case, the photo array shown to the rape victim contained
a picture depicting only Snyder's head and shoulders while the photos of the
other participants displayed their full body. In addition, the rape victim
testified at trial that the police had told her that Snyder lived across the
street from her. She later reportedly saw Snyder outside his home and told
police that his thighs looked familiar. Three months after the attack, the
police carefully arranged an opportunity for the victim to view Walter
Snyder by himself in the police station under circumstances that made it
clear he was a suspect, and she identified him as her rapist.
3.

Julius Ruffin

The victim in Julius Ruffin's case had a chance encounter with him in an
elevator at work and believed he was possibly her attacker. Officials at her
work arranged for Ruffin to come to her office so she could get a better
look at him, and afterward she felt sure he was the rapist. After being
questioned by police and denying involvement in the crime, Ruffin agreed
to participate in a live lineup. The police put Ruffin, a light-skinned
African-American man, in a lineup consisting solely of dark-complected
African-American men. Each lineup participant wore hospital scrubs, but
Ruffin stood out as the only participant to wear jewelry or a t-shirt under the
scrubs. Moreover, each of the other participants already was incarcerated
and reportedly appeared ungroomed in comparison to Ruffin. The victim
identified Ruffin as her assailant after the lineup.
4.

Edward Honaker

Edward Honaker was identified by the rape victim and her boyfriend, also
an eyewitness to the crime, in photographic arrays done four months after
the rape. However, not until years after his conviction did evidence come
to light that the police had arranged for the victim and her boyfriend to

INNOCENCE COMMISSION FOR VIRGINIA

undergo hypnosis, and only while they were under hypnosis were they able
to identify Honaker's photograph in the array.43 In addition, the two
witnesses were allowed to view the photos together, further tainting the
reliability of each identification.
5.

Experts have
proposed a series
of simple
modifications to
identification
procedures. Most
of the reforms
carry no financial
costs and require
no or little training
before officers are
able to put them
into practice in the
field.

Arthur Whitfield

Arthur Whitfield's case highlights the potential danger posed when a
suspect stands out from the other participants in an identification procedure.
The first rape victim told police that her assailant had distinctive, light eyes
and both victims testified at trial about the rapist’s unusual light eyes, yet
Whitfield was the only lineup participant that the woman viewed who had
light eyes. In addition, the second rape victim testified at trial that none of
the other lineup participants had the same complexion as Whitfield.
Whitfield also did not match the second rape victim's description of her
assailant in one very important way. She told the police on the day that she
was raped that the perpetrator was "kissing" and "necking" at her during the
entire assault and she specifically said he did not have facial hair.
Photographs taken during Whitfield's lineup one week after the assaults
showed he had a heavy moustache.
The two rape victims also had significant contact with each other that could
have unconsciously influenced their identifications of Whitfield. The two
women knew each other and even drove to the police station together to
view the Whitfield lineup. During the drive, they "compared notes" by
discussing the descriptions they gave to the police of their assailant.
F.

Best Practices for Identification Procedures

In light of the significant findings of modern psychological research on
eyewitness identifications, experts have proposed a series of simple
modifications to identification procedures that are designed to minimize the
chance of misidentification and make eyewitness identifications more
accurate and reliable. Most of the reforms carry no financial costs and
require little or no training before officers are able to put them into practice
in the field.
In October 1999, the U.S. Department of Justice ("DOJ") issued guidelines
on identification procedures.44 The DOJ recommends that law enforcement
agencies adopt the following practices to prevent suggestive influences
during photo arrays and lineups:

A VISION FOR JUSTICE

•

use “fillers” or non-suspects who fit the witness's description of the
perpetrator where it is possible to do so.

•

include only one suspect in each lineup.

•

avoid the reuse of fillers when showing a new suspect.

•

ensure that no writing or information concerning a previous arrest is
visible when conducting a photo lineup.

•

ensure that the suspect and fillers share unusual features such as scars
and tattoos.

•

instruct witnesses prior to conducting identification procedures that
the person who committed the crime may or may not be present in the
group of photographs or individuals, and, therefore, it is just as
important to clear innocent persons as it is to identify the perpetrator.

•

avoid saying or doing anything that could potentially influence the
witness's selection.

•

record the results of the lineup.

•

obtain a signed and dated statement of certainty from the witness as
soon as the procedure is complete.

The practices recommended by the DOJ have been implemented by police
departments around the country. For example, Illinois and New Jersey have
adopted many of these recommendations for police and law enforcement,
and have added additional important safeguards.45 Both states are requiring
that, where possible, photo arrays and in-person lineups be conducted
sequentially rather than simultaneously so that the witness can determine
whether an individual in the identification procedure is or is not the
perpetrator, before viewing the next person or photograph, in order to
minimize the problem of relative judgments. In addition, New Jersey’s best
practices require that the person conducting the lineup not know which
lineup participant is the suspect in the case.46

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Recommendations for Reform in Virginia for Eyewitness
Identifications

The ICVA recommends that the eyewitness identification procedures set
out below be uniformly adopted and applied by law enforcement agencies
throughout Virginia. There are several complementary ways to implement
these reforms. First, Virginia should enact legislation that would require
law enforcement agencies in the Commonwealth to adopt and implement
these procedures, with sanctions for refusing to do so. The legislation
should require that identification evidence be excluded or that prosecutors
show good cause for their failure to follow the procedures. Second,
Virginia courts should incorporate these recommendations into their
analysis of the reliability and admissibility of pre-trial eyewitness
identification procedures. Eyewitness identifications that were not the
product of these procedures should receive heightened scrutiny by trial and
appellate courts, including instructions to jurors to view such identifications
with skepticism. Third, individual law enforcement agencies in Virginia
should immediately adopt these procedures, train their officers to
implement them properly, and require their officers to follow them.
1.

Multiple person lineups and multiple person photo arrays are
significantly more reliable than single person or single photograph
identifications. Therefore, law enforcement personnel should use
multiple person lineups and multiple person photo arrays
whenever practicable. Generally, identification procedures should
include six to eight participants, including the suspect.

Show-up identifications performed in the vicinity of the crime, shortly after
the crime occurred, and usually under exigent circumstances, have been
used to narrow police focus to possibly guilty suspects. Such measures,
however, come with considerable risks of suggesting guilt when a suspect is
innocent. The risk is raised to an unacceptable level when singleparticipant identification procedures occur even later after a crime.
Sometimes these one-suspect identifications occur by chance and are not
arranged by the police. Julius Ruffin's case is one example of a chance
encounter between the victim and someone she perceived as her offender.
However, at other times the police may arrange for eyewitnesses to view a
suspect days, weeks or more after the crime occurred under circumstances
where no exigency exists, like in Walter Snyder's case.
The ICVA recommends that these types of show-up identifications or
single-witness photo identifications be avoided when substantial time has

A VISION FOR JUSTICE

passed since the crime. Not only are the resulting identifications
suggestive, but research also has shown that the effects on witnesses’
diminishing memories may taint the reliability of future proceedings.
Although the ICVA's survey indicates that most Virginia law enforcement
agencies avoid single photograph identification procedures, a small
minority occasionally still use these techniques.
Further, the number of participants in an identification procedure should be
sufficient to fairly test an eyewitness's ability to identify the true
perpetrator. While no magic number exists, the ICVA recommends, based
on the available research and the practices of numerous law enforcement
agencies across the country, that six to eight participants, including the
individual suspected by the police, is an appropriate number.
2.

Only a single witness should participate in an identification
procedure at one time. When conducting identification
procedures, law enforcement personnel should include only one
suspect per procedure, should include participants who are not
suspects, and should, to the greatest extent possible, ensure a
consistent appearance between suspects and other participants so
that suspects do not stand out.

Witnesses should not be allowed to participate in identification procedures
together, in order to avoid witnesses’ influences on each others’ decisions.
To further reduce the possibility of misidentification, in cases in which
there is more than one suspect, experts recommend that only one suspect at
a time be included in an identification procedure. Additional spots in a
lineup, or further pictures in a photo array, should be reserved for similar
looking non-suspects, who are commonly called "fillers."
The ICVA urges Virginia law enforcement agencies to ensure, to the
greatest extent possible, that non-suspect participants in identification
procedures have a consistent appearance to the single suspect included in
the lineup or photo array. Marvin Anderson, Julius Ruffin, and Walter
Snyder serve as examples of the tragic consequences that may flow from
identification procedures in which suspects inappropriately stand out from
the other participants, whether from the quality of photo used, participants’
attire, or their physical attributes. All three men were misidentified and
spent years in jail for crimes that they did not commit.

Marvin Anderson,
Julius Ruffin, and
Walter Snyder
serve as examples
of the tragic
consequences that
may flow from
identification
procedures in
which suspects
inappropriately
stand out from the
other participants,
whether from the
quality of photo
used, participants’
attire, or their
physical attributes.

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Law enforcement personnel should instruct each witness that the
person who committed the crime may or may not be included in
the identification procedure and that the witness should not feel
obligated to make an identification unless the witness recognizes
the perpetrator. Each witness should be instructed that it is just as
important to clear an innocent person of wrongdoing as it is to
identify the perpetrator.

Eyewitnesses naturally approach identification procedures with the idea that
a suspect will be included in the photo array or lineup. An instruction to
witnesses that the perpetrator may or may not be included in a photo array
or lineup helps counter eyewitnesses' inclination to identify a participant
regardless of whether the actual offenders are included in the procedures.
Research shows that witnesses who do not receive this instruction are more
likely to identify a participant even when the true offender is not included in
the procedure.47 The reverse, however, is not true; a witness who receives
the instruction is no less likely to identify an offender when the true
perpetrator is present in an identification procedure.48
The ICVA recommends that Virginia law enforcement agencies use
uniform and standardized written instructions for witnesses viewing
identification procedures. These instructions, which should conform to the
recommendations in this report, should be read verbatim to all witnesses
viewing photo arrays and lineups, and the witnesses should be asked to sign
the instructions acknowledging they received and understood them. Law
enforcement personnel should instruct each witness that the person who
committed the crime may or may not be included in the identification
procedures and that the witness should not feel obligated to make an
identification unless the witness recognizes the perpetrator. Each witness
should be instructed that it is just as important to clear an innocent person of
wrongdoing as it is to identify the perpetrator.
4.

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Law enforcement officials who conduct identification procedures
should not know the identity of the actual suspects in order to
reduce unintended influence on the witnesses during identification
procedures, and witnesses should be informed that the person
conducting the procedure does not know which participant in the
procedure is the suspect. Law enforcement officers should avoid
giving feedback to witnesses during or after identification
procedures.

In judging the accuracy of pre-trial identifications, judges and juries place
great weight in the level of confidence expressed by witnesses. As
discussed earlier, however, research shows that witnesses' initial
identifications and the level of confidence they later express in their
identifications are highly susceptible to suggestive influences.49
It is rare for a law enforcement officer to deliberately steer a witness’s
identification, but unconscious body language, tone of voice, and questions
or comments by the officials conducting an identification procedure can
significantly influence the selections made by witnesses and can have longterm and pervasive effects on their memory. Indeed, in at least four of the
cases investigated by the ICVA in which misidentifications occurred, the
investigating officers knew the eventual exonerees were suspects and these
officers were involved in the identification procedures with the
eyewitnesses. Although it is not clear whether the officers’ reactions or
comments could have influenced the eyewitnesses’ memories, it is essential
that witnesses not receive unintended signals that might influence their
decision-making.
For these reasons, the ICVA recommends that Virginia law enforcement
agencies adopt the “double-blind procedures” that have been suggested by
experts and implemented by other jurisdictions across the country.
Specifically, the ICVA recommends that the officers conducting photo
arrays and lineups not know which of the participants is the investigating
officers’ focus of interest. The fact that the officers do not know the
identity of the suspect should be shared with witnesses so they will not be
unduly influenced by the behavior of the officers conducting the procedure.
Even if the law enforcement officer conducting the identification procedure
does actually know the identity of the suspect, witnesses should still be
instructed otherwise. For similar reasons, law enforcement officers should
avoid giving feedback to witnesses during or after identification procedures.
Congratulating a witness on his identification, for example, can alter the
witness’s perception, memory, and later testimony in court.
5.

Law enforcement personnel should adopt sequential rather than
simultaneous identification procedures.

It is rare for a law
enforcement officer
to deliberately steer
a witness’s
identification, but
unconscious body
language, tone of
voice, and
questions or
comments by the
officials conducting
the procedure can
significantly
influence the
selections made by
witnesses and can
have long-term and
pervasive effects on
their memory.

As noted above, simultaneous identification procedures tempt witnesses to
make relative judgments about the participants in a lineup or photo array
and, sometimes, to identify a person who looks similar to the suspect but is
not in fact the offender.

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Sequential identification procedures, on the other hand, require witnesses to
compare each photo array or lineup participant to their mental image of an
individual perpetrator, and to make a decision about whether or not they
recognize the offender. Sequential lineup procedures can be implemented
by law enforcement agencies with little additional training or cost and are
important in reducing the chances of mistaken identifications.

Sequential
identification
procedures, which
require witnesses
to view one
individual at a
time, can be
implemented by
law enforcement
agencies with little
additional training
or cost.

The Virginia State Crime Commission has strongly endorsed the benefits of
sequential over simultaneous identification procedures.50 The State Crime
Commission has recommended that the entry-level and in-service training
for law enforcement officers include only the use of the sequential method
and that the sequential method become part of the accreditation process for
law enforcement agencies.51 The ICVA recommends that after law
enforcement agencies have the opportunity to conduct an initial period of
training in these new procedures, the Virginia General Assembly require
law enforcement officers to use sequential identification procedures.
6.

If a photo array is used, law enforcement personnel should show
the photos to the witness one at a time, and they should obtain a
statement from the witness as to whether the person in the photo is
or is not the perpetrator, the degree of confidence of the witness in
any identification, and the nature of any similarities or differences
the witness observes between the photo and the perpetrator - all
before moving on to the next photo. The same procedure should be
followed if a live person lineup is used.

Obtaining immediate feedback from an identification witness as the witness
views a photographic array or a live lineup is critical to promoting accurate
and reliable identification procedures. Eyewitness identification research
described above shows that even unconscious or unintended suggestions or
reinforcement of an identification can significantly and mistakenly increase
a witness's level of confidence in that identification. Gathering information
from a witness as the witness views each photograph or each individual in a
live procedure separately will permit the judge or jury at any subsequent
trial to assess whether the witness's identification has been consistent or has
changed over time.
For these reasons, the ICVA recommends that law enforcement officers ask
a witness whether or not the witness sees the perpetrator as each photograph
or individual is viewed separately. If the witness makes an identification,
law enforcement officers should ask the witness for his or her level of
confidence in the identification and ask the witness to describe any

A VISION FOR JUSTICE

similarities or differences between the perpetrator and the photograph or
individual selected in the identification procedure, all before the witness
moves on to view a subsequent photograph or individual.
7.

Police and other law enforcement officers are well-trained in recording and
preserving the observations and experiences of victims and witnesses
immediately after a crime occurs. Officers should apply these same skills
to videotape a witness’s identification of a suspect, the witness’s level of
confidence in the identification, and any other comments the witness has
about the identification procedure. This practice will preserve the
identification process for later review in court and will protect officers
against unfounded claims of misconduct. To the extent that officers
properly instruct witnesses and refrain from extraneous comments or
feedback, a video recording can serve as proof of the officer’s professional
behavior and information about the witness’s displayed confidence.
8.

Virginia courts should permit, in appropriate cases, the
introduction of expert testimony on the issue of human memory as
it relates to the identification process and on the issue of best
practices for eyewitness identification procedures. Virginia courts
should also instruct jurors to carefully consider the reliability of
eyewitness identifications.

Expert testimony
will help
counterbalance the
common
misconceptions
held by many
jurors concerning
eyewitness
evidence.

Several decades of scientific research into eyewitness identifications,
described in Part Four, Section (I)(C) of this report, contradict or undermine
the fundamental assumptions that courts and juries use to assess the
reliability and accuracy of identification evidence. For example, although
common sense might suggest otherwise, research shows that witnesses' selfreports about their opportunities to view assailants and their level of
confidence in identifications are often inflated. Moreover, research also
shows that witnesses who have made an identification tend to understate,
minimize, or simply deny the impact of any subsequent influence or
suggestions on their memory.

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Expert testimony about human memory as it relates to the eyewitness
identification process and about best practices concerning identification
procedures will help counterbalance the common misconceptions held by
many jurors concerning eyewitness evidence. Since this information is not
within the range of common experience of a juror, it is an appropriate area
for expert testimony.52 Similarly, special cautionary instructions to juries
concerning the reliability of eyewitness testimony will aid jurors in
assessing this type of evidence. For these reasons, the ICVA recommends
that Virginia courts, in appropriate circumstances, permit the introduction
of expert eyewitness testimony and provide specific jury instructions
concerning eyewitness evidence.
II.

Interrogation Procedures

Introduction

In most criminal investigations, police suspicion begins to focus on a
particular individual and investigators will question that suspect. Often, and
particularly when there is a strong belief in the suspect’s guilt, the goal of
police questioning is to obtain a confession from the suspect, an admission
of guilt that will form the heart of the later prosecution. Police questioning
is usually done in private, whether the suspect is under arrest or not, and in
a manner controlled by the police. When the police questioning results in a
confession by the suspect, the investigation usually has reached its apex,
and often its culmination. The defendant's confession later becomes one of
the most compelling and effective arrows in the prosecutor's quiver in the
subsequent criminal prosecution.
Modern police interrogation methods often rely upon psychological
techniques. These techniques have proven to be extremely effective and
have caused many truly guilty suspects to admit their responsibility for the
crimes they have committed. However, today’s interrogation methods are
so effective, so powerful, and so calculated to obtain incriminating
admissions, that they sometimes influence innocent people to falsely admit
to crimes in which they had no involvement. Although the frequency of
false confessions is difficult to quantify, research has demonstrated that
false confessions are not isolated phenomena, but instead occur in
disturbing numbers.
Five studies of erroneous prosecutions 53 conducted since 1987 have shown
that anywhere from fourteen to twenty-five percent of the cases reviewed
involved false confessions.54 In the Virginia cases studied by the ICVA,

A VISION FOR JUSTICE

two of the eleven official exonerations involved innocent men – both facing
the death penalty – who confessed to crimes that evidence later proved they
did not commit. In a third case, the police claimed that the exoneree
confessed, but he adamantly denied making any admission.
It is understandably difficult to fathom that innocent people would confess
to crimes that they did not commit.55 Yet false confessions do occur and
their consequences extend beyond the injustice of accusing and
incarcerating an innocent person. Unfortunately, false confessions have
sidetracked the police from pursuing the real perpetrators, led police and
prosecutors to resist reversing course once they have mistakenly concluded
that the confessor is guilty, and caused courts to confirm convictions long
after compelling evidence surfaces that the system has prosecuted the
wrong person.
Because modern interrogation techniques are effective in obtaining
confessions from guilty suspects, wholesale changes to interrogation tactics
are neither practical nor necessary. Instead, a modest reform – videotaping
the complete interrogation of suspects in serious cases – would reduce the
possibility of false confessions while permitting officers to pursue and
convict the guilty. Indeed, recording interrogations has proven to be a very
effective law enforcement tool.56
Videotaping interrogations creates a permanent record that can become
powerful evidence against the actually guilty, can conserve scarce
prosecution and judicial resources by limiting meritless challenges to
properly obtained confessions, and can limit frivolous claims of police
misconduct during questioning. The videotape can be reviewed later by
police, prosecutors, the defense, the courts, and juries so that the influence
of the police interrogation techniques and the capabilities and limitations of
the suspect being questioned can be measured and weighed by the
responsible parties in the criminal justice system.

It is
understandably
difficult to fathom
that innocent
people would
confess to crimes
that they did not
commit. Yet false
confessions do
occur and their
consequences
extend beyond the
injustice of
accusing and
incarcerating an
innocent person.

In addition to videotaping interrogations, law enforcement officials should
revise their techniques to avoid the most high pressure tactics when
interrogating children and suspects known to have mental retardation or
mental illness or who are otherwise susceptible to manipulation and
pressure. Law enforcement should be especially mindful when questioning
these most vulnerable of suspects.

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Virginia Law on Interrogation

Virginia law governing the interrogation of suspects mirrors federal
constitutional law. The Virginia courts have held that Article I, Section 8 of
the Virginia Constitution provides identical and coextensive protections as
those provided by the Fifth Amendment to the United States Constitution.57
Under federal constitutional law, criminal defendants' statement may be
used against them in court if the statements meet two separate standards.
Under the Due Process Clauses of the Fifth and Fourteenth Amendments,
the statement must be voluntary and free of physical coercion, threats of
violence, or improper promises or inducements.58 In addition, according to
United States Supreme Court in Miranda v. Arizona, suspects subjected to
custodial interrogation must be advised of their right to remain silent and
their right to counsel.59
The courts apply a “totality of the circumstances” approach to determine the
voluntariness of confessions, considering both the circumstances
surrounding the interrogation and the characteristics of the suspect. Among
the factors relevant to the circumstances of interrogations, courts weigh the
presence or absence of police coercion or inducement; the location, duration
and continuity of the interrogation; and whether the suspects were advised
of the right to counsel and the right to remain silent.60 Courts also consider
suspects' personal characteristics, including their age and level of maturity;
their education level; the existence of any mental health problems or
developmental disabilities; and suspects' physical condition, including
whether they were sleep-deprived or under the influence of drugs or
alcohol.61
In practical terms, the question of whether a court admits a defendant's
statement often hinges on a credibility determination – does the court credit
the officers’ assertion that they did not overbear the defendant's will, or
does the court believe the defense that the statement was involuntary?
Practice suggests that the courts regularly rule in favor of the prosecution.62
Virginia courts have allowed expert testimony to help explain false
confessions by defendants with mental retardation or mental disorders.63
However, there appear to be no reported Virginia cases in which the courts
have permitted expert testimony about such issues when defendants have
normal mental capacity.

A VISION FOR JUSTICE

False Confession Research

Considerable research examining false confessions has concluded that many
factors play a role, including fear of violence, coercive interrogation tactics,
intoxication, diminished capacity, ignorance of the law, and mental
impairment.64 While some innocent suspects who confess to the police are
socially marginalized individuals (the poor, the uneducated, those of lower
intelligence or who suffer from mental illnesses, and juveniles),65 the vast
majority of reported false confessions come from cognitively and
intellectually normal people.66 For these individuals, false confession may
be perceived as a logical response to their predicament, given the significant
sentence reductions that can result from cooperating with the police.
Of these several factors, perhaps the most important is the effectiveness of
police interrogation techniques, which rely on subtle (and sometimes even
overt) forms of manipulation, deception, and coercion. These techniques
have been repeatedly upheld by the courts. In the modern, psychological
form of interrogation, police often isolate a suspect; repeatedly and
consistently accuse the suspect of committing the crime; reject proffered
alibis; confront the suspect with true and false incriminating evidence; offer
alternative scenarios that “recast the suspect’s behavior so that he is no
longer morally and/or legally culpable;” and offer inducements to confess.67

The vast majority
of reported false
confessions come
from cognitively
and intellectually
normal people.

These methods are designed to persuade suspects that:
the evidence against them is overwhelming, that their fate is certain
(whether or not they confess), and that there are advantages that follow if
they confess. Investigators elicit the decision to confess from the innocent
in one of two ways: either by leading them to believe that their situation,
though unjust, is hopeless and will only be improved by confessing; or by
persuading them that they probably committed a crime about which they
have no memory and that confessing is the proper and optimal course of
action.68

While many innocent suspects are able to resist these techniques and
maintain their innocence during questioning, some succumb to the pressure
and confess to crimes that they did not commit.
The developmental characteristics of those with mental retardation make
them particularly susceptible to suggestive interrogation tactics. They are
concrete and slow thinkers, they tend to place great weight on short-term
versus long-term consequences, and they have difficulty appreciating the
seriousness of their situations. They often have short attention spans and

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poor impulse control, are highly submissive, and are responsive to stress
and pressure.69 Further, because their brains have not yet matured, juveniles
share many of the same developmental, cognitive, and social deficits as
those with mental retardation, and are equally susceptible to the pressures of
interrogation.70
D.

Fewer than four
percent of Virginia
departments said
they always
videotape custodial
interrogations.

Virginia Law Enforcement Interrogation Procedures and
Practices

The ICVA surveyed Virginia law enforcement agencies about the methods
they use to preserve statements made by suspects during custodial
interrogation. Of the 108 responding agencies that interrogate suspects,
eighty-seven percent have suspects write out statements; sixty-four percent
have officers write down suspects' statements; eighty percent use audiotape
to record suspects' statements; fifty percent use videotape to record
suspects' statements; and three percent record statements in other ways.
More telling is how often agencies videotape interrogations. Fewer than
four percent of departments said they always videotape custodial
interrogations, while an additional twelve percent reported that they mostly
do so. In contrast, eighty-four percent of the responding agencies that
question suspects said they never, rarely, or only occasionally use videotape
to record interrogations. Although these numbers suggest that videotaping
is far from routine among Virginia law enforcement agencies, a majority of
departments has at some point videotaped custodial interrogation.
Presumably, then, the practice is not foreign to Virginia law enforcement.
Tables Two and Three summarize these data.

TABLE TWO – METHODS USED TO RECORD CUSTODIAL
INTERROGATION BY VIRGINIA LAW ENFORCEMENT
AGENCIES
Method

% Of Agencies

Suspect Writes Statement

Officer Records Statement

Audiotape Statement

Videotape Statement

Other

N = 108

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TABLE THREE – HOW OFTEN VIRGINIA LAW ENFORCEMENT
AGENCIES RECORD CUSTODIAL INTERROGATION BY
VIDEOTAPE
Method

% Of Agencies

Always

Mostly

Occasionally

Rarely

Never

N = 108
The ICVA's survey solicited additional comments from law enforcement
agencies on their use of videotape equipment to record interrogations. Two
agencies indicated that budget reasons limit their use of videotape to record
suspects’ statements, and both indicated a desire to use the technology if it
were available. Another agency said it did not use videotape in all
interrogations because not all interrogations take place in areas with video
surveillance. Another agency indicated that most small departments cannot
afford video equipment or do not have space available to implement
videotaping. But the agency also indicated that for "the greater number of
law-enforcement agencies," their officers' integrity and the need to maintain
their credibility should lead them to conduct interrogations without
compulsion or persuasion.

Two of the agencies
surveyed said they
do not videotape
interrogations
because "the
Commonwealth's
Attorney does not
want it done" and
the "prosecutor
does not like
video."

One law enforcement agency indicated that it uses videotaping in serious
felonies and "cases involving children" and another echoed that comment
when it indicated it uses videotape in child molestation cases. One
department reported that the decision to videotape interrogations is at its
officers' discretion or "when the circumstances dictate it prudent." Finally,
two agencies said they do not use videotaping because "the
Commonwealth's Attorney does not want it done" and the "prosecutor does
not like video." A third law enforcement agency reported that the
"Commonwealth’s Attorney does not allow" videotaping.

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False Confessions and Interrogation in the Cases of Virginia
Exonerees

In a study of the first seventy DNA-based exonerations nationwide,
defendants falsely confessed in fifteen cases (twenty-one percent of the
cases examined).71 A more recent study of 328 exonerations nationwide
found false confessions in fifty-one cases, or fifteen percent of those
exonerations. Further, it found that sixty-nine percent of innocent
defendants with mental retardation or mental illness falsely confessed and
forty-four percent of juvenile exonerees falsely confessed.72

Of the eleven cases
investigated by the
ICVA, two involved
false confessions,
but several more
reflected
problematic
interrogation
techniques.

Virginia’s experience mirrors the national data. Of the eleven cases
investigated by the ICVA, two cases (or eighteen percent of the cases
reviewed by the ICVA) involved false confessions, but several more
reflected problematic interrogation techniques. As the cases described
below demonstrate, defendants facing the death penalty and suspects with
intellectual and developmental disabilities were the most likely to offer a
false confession.
1.

Earl Washington

A year after the 1982 rape and murder of a young mother in Culpeper,
Virginia, Fauquier County authorities arrested Earl Washington, a man with
mental retardation, on a burglary and assault charge. Within two hours after
police began interrogating him, Washington confessed to four unrelated
Fauquier County crimes – two rapes, an attempted rape, and a breaking and
entering. The Fauquier police never charged Washington with these four
crimes, however, because in each case either the victim cleared Washington
or the evidence was fundamentally inconsistent with his confession. During
the same interrogation, police also questioned Washington about the
Culpeper murder. He "acknowledged" that he committed the crime but
gave no details, and police soon ended their initial questioning. Later that
same day, while being questioned a second time about the Culpeper murder,
Washington again admitted to killing the woman, but never mentioned a
rape.
The next day, two police officers from the Culpeper Police Department
questioned Washington about the murder. Again, he confessed to the
crime, but his confession was riddled with statements directly contradicting
the true facts of the crime. Officers took Washington to Culpeper so he
could show them where he committed the crime, but he was unable to
locate the crime scene – even when police drove him directly by the

A VISION FOR JUSTICE

apartment building where the victim was stabbed. He initially told the
police that he had killed a black woman, although the victim was white, and
he claimed that he had stabbed the victim only twice when the killer had
actually stabbed her nearly forty times. Finally, Washington told the police
that he had "kicked in the door" and found the victim alone. In actuality,
the victim's two small children were in the home when she was attacked and
the door had not been kicked in.
The police did not use audio or videotape to record their interrogations of
Washington, but instead obtained a written confession from him. With little
physical evidence available at trial 73 and a case based largely on a
questionable confession, the jury still convicted Washington of capital
murder at his trial in 1984 and recommended that he be sentenced to death.
Washington spent nearly ten years on death row and once came within nine
days of being executed. In 1994, Governor L. Douglas Wilder commuted
Washington's death sentence to life in prison based on DNA evidence that
showed that sperm found in the body of the rape victim did not match
Washington. Six years later, Governor James S. Gilmore granted
Washington a full pardon after even more sophisticated DNA testing
completely eliminated Washington as the contributor of the semen.
It is still unclear why Earl Washington would confess to a crime he did not
commit. As a man of low intelligence, Washington was susceptible to
pressure tactics in a police interrogation, and, indeed, the case suggests that
officers may have coached, if not directed, his statements. However,
because none of Washington’s conversations with his interrogators were
recorded, with the exception of the written confession that was prepared by
the officers and only initialed by the near-illiterate Washington, it is
difficult to say exactly what transpired between Washington and the officers
outside of public view.
2.

David Vasquez

After the 1984 rape of an Arlington woman, police went to the workplace of
David Vasquez in Prince William County and, without telling him the
reason for their request, asked him to come to the police station for an
interview. At the Prince William County Police Station, the detectives
questioned Vasquez, who has mental retardation, for several hours and tape
recorded the interrogation. Police put off repeated requests by Vasquez to
see his mother. Although Vasquez denied being in Arlington on the night
of the murder, the police eventually told him, falsely, that his fingerprints
were found inside the victim's home. Vasquez then told the police that he

INNOCENCE COMMISSION FOR VIRGINIA

might have been present in the victim's home the night of the murder, but he
seemed confused about how he could have gotten there since he does not
drive and his mother was working that evening. At one point, Vasquez
said: "It was my imagination that was there, [but] how my body would get
there if I didn't . . . ."

The police falsely
told David Vasquez
that his
fingerprints were
found inside the
victim’s home. A
confused Vasquez
eventually
confessed: “It was
my imagination
that was there,
[but] how my body
would get there if I
didn’t….”

The police continued to question Vasquez, and his answers, although
inculpatory, continued to be confused and became less comprehensible.
Vasquez eventually "admitted" to the police that he had sexual intercourse
with the victim and, later, that he killed her, but he could not supply details
to the police, so they provided the details to him. At the end of the
interview, Vasquez seemed to be talking to himself in a confused manner,
repeatedly saying that he knew he was not present, that he did not know
how his fingerprints got in the home, and that he did not commit the crime.
The police asked Vasquez to accompany them to Arlington County, where
they questioned him again. He repeated his request to see his mother and
additionally to see his psychiatrist, all to no avail. The second interrogation
followed much the same pattern as the first. At some point, however, one
officer left the interrogation room with the tape recorder, and during his
absence Vasquez began giving a “dream” statement describing the details of
the murder. The detectives described the “dream statement,” only a portion
of which recorded on audiotape, as “clear, certain. The vacancy was gone.”
The police arrested Vasquez after this statement and charged him with
capital murder. After his arrest and processing, Vasquez repeated the
"dream" statement again to the police.
In addition to his “confessions” and the eyewitness reports, the police found
a hair at the crime scene that an expert concluded was “consistent” with
Vasquez's hair and a pornographic magazine in Vasquez's home depicting a
woman bound, gagged, and with a rope around her neck. However,
Vasquez's blood type did not match the semen samples recovered from the
victim and his shoes did not match shoe prints found outside the point of
entry at the home.
Vasquez's attorneys moved to suppress all of his statements to the police.
Although the court excluded the first two interrogations because the police
had failed to advise Vasquez of his Miranda rights, it found Vasquez’s last
“dream” statement admissible because the Miranda warnings had been
given and any taint from the Miranda violations had been removed. Faced
with the possibility of the death penalty and the certainty that his own
words would be used against him at trial, Vasquez accepted the

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Commonwealth's Attorney's offer to plead guilty to second degree murder
and burglary and the court sentenced him to thirty-five years in prison.
Almost three years later, after another murder with strikingly similar
features, an Arlington detective began an investigation that convinced him
that a serial murderer, Timothy Spencer, had committed several murders,
including the one to which Vasquez pled guilty. The detective's exhaustive
investigation ultimately persuaded the Commonwealth's Attorney that
Spencer had committed the murder alone and that Vasquez was innocent,
and the Commonwealth and the defense jointly sought a Governor's pardon.
In January 1989, nearly five years after his arrest, Governor Gerald L.
Baliles granted David Vasquez an absolute pardon, and he was released
from prison.
3.

Other Virginia Cases

Although the Washington and Vasquez cases are among the clearest
instances of damaging false confessions, a number of the other cases the
ICVA reviewed merit discussion.
i.

Craig Bell

Craig Bell was convicted of murdering his fiancée in the middle of the night
by stabbing her to death in their home. Although he consistently denied
committing the crime in at least four unrecorded statements to the police,74
the police claimed that Bell made inconsistent statements about important
details of the crime to the police and to an emergency medical technician at
the scene and used those inconsistencies to undermine Bell's credibility at
trial. The police did attempt to videotape at least one of their interrogations
of Bell, but discovered later that the audio portion of the recording failed to
function. There was, thus, no independent basis on which the jury could
weigh the veracity of these competing claims.
ii.

Jeffrey Cox

Police arrested Jeffrey Cox six weeks after the abduction and murder of a
sixty-three year old woman. During his unrecorded interrogation after his
arrest, the police asked Cox where he was on the night of the murder. They
also asked him whether he was at a party at Billy Madison's house, who
unbeknownst to Cox was the prime suspect in the crime. Cox had been at a
party at Madison's house around the time of the murder, and told police he
was there on the night of the murder. It later turned out that Cox was

INNOCENCE COMMISSION FOR VIRGINIA

confused about the dates and had been with different people on the night of
the murder. At trial, the prosecutor undermined Cox's alibi, and challenged
the credibility of his alibi witnesses, because of Cox's prior statement to the
police during his interrogation.
F.

Police
interrogation
tactics are
specifically
designed to
produce stress in
suspects, which
undermines the
reliability of
suspects'
statements and
actions during
interrogations and
purported
confessions.

Best Practices for Interrogation Procedures

The crux of the problem posed by police interrogation practices that
sometimes lead to false confessions stems from the fact that interrogations
almost always occur in private and under circumstances in which the police
are in complete control.75 While the police sometimes make
contemporaneous records of the course of interrogations – through notes,
statements, or electronic recordings – suspects almost never do, and the
police always control what parts of the interrogations or subsequent
confessions are preserved, documented, or recorded. Moreover, police
interrogation tactics are specifically designed to produce stress in suspects,
which undermines the reliability of suspects' statements and actions during
interrogations and purported confessions.
These realities create significant challenges for the judicial system when the
reliability and truthfulness of confessions are considered in court. Because
of the imbalance of power in the interrogation process and the tendency of
juries and judges to believe the police version over those of criminal
suspects, judges and juries are more inclined to accept the memories,
perceptions, and assertions of the police over those of suspects when
deciding whether confessions are true, or were the product of undue
influence or coercion or, for some other reason, are, in fact, false.76
The number of known false confessions is substantial and steadily rising
and the individual and societal costs are significant. Numerous experts,
researchers, and a growing number of states and local jurisdictions have
concluded that transparent interrogation practices that are comprehensively
and accurately preserved for subsequent objective review are necessary to
ensure the fair and reliable administration of justice. These jurisdictions
have recognized that the best way to achieve these goals is to require their
law enforcement agencies to videotape the interrogation of suspects.
For example, the highest courts in Alaska and Minnesota have mandated the
electronic recording of custodial interrogations, with limited and carefully
delineated exceptions.77 Both courts have held that failure to comply with
the videotaping requirements can lead to the exclusion of suspects'
statements from court proceedings. Similarly, Illinois requires the

A VISION FOR JUSTICE

electronic recording of all custodial interrogations of juveniles.78 In
addition, effective July 18, 2005, Illinois will require the electronic
recording of all custodial interrogations in homicide cases, unless a
statutory exception applies.79 Washington, D.C. law mandates the
electronic recording of the interrogation of suspects in cases involving
crimes of violence.80
In addition, a number of police departments have implemented the
electronic recording of custodial interrogations of suspects in major felony
investigations.81 For example, Maryland’s Prince George's County Police
Department instituted mandatory videotaping of interrogations in all serious
felonies in 2002.82 In Florida, the Fort Lauderdale Police Department, the
Broward County Sheriffs' Department, and the Miami Police Department all
instituted mandatory videotaping in felony and/or homicide cases.83
Videotaping interrogations has garnered praise from participants in the
criminal justice system in those jurisdictions that have adopted these
procedures. According to Amy Klobuchar, the County Attorney for
Hennepin County, Minnesota:
At the time of the decision to require recording in Minnesota, most police
and prosecutors in the state feared the new rule would make their jobs
harder and undermine the cause of justice. But . . . it has become clear
that video-taped interrogations have strengthened the ability of police and
prosecutors to secure convictions against the guilty. At the same time,
they have helped protect the rights of suspects by ensuring the integrity of
the criminal justice process.84

Many law
enforcement
agencies surveyed
from across the
country about
recording
interrogations were
“enthusiastically in
favor of the
practice.”

The Supreme Court of Minnesota also noted the benefits from the
preservation of valuable resources that seemingly have flowed since its
decision to require interrogations to be videotaped, stating that since the
Court mandated the recording of interrogations "fewer cases come before
[the Court] in which a key issue is whether the suspect waived his or her
constitutional rights during interrogation . . . ." 85 The Supreme Court of
Minnesota stated that mandatory recordings "make it possible for
defendants to challenge misleading or false testimony, reduce baseless
claims against the state, and discourage unduly coercive police tactics." 86
Significantly, a recent review identified more than 260 law enforcement
agencies in 42 states that currently record custodial interrogations in many
felony investigations. It found that "[v]irtually every officer with whom
[the authors] spoke, having given custodial recordings a try, was
enthusiastically in favor of the practice."

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To prevent false confessions, some police departments also have instituted
new procedures governing the interrogation of suspects with developmental
disabilities. For example, the Broward County Sheriff's Department trains
its deputies in recognizing developmentally disabled suspects and instructs
them how to advise these subjects of their constitutional rights in
understandable ways. That department also trains its officers to avoid
leading or suggestive questions and questions that tell suspects the answers
the officers are seeking.89
G.

Recommendations for Reform in Virginia for Custodial
Interrogations

The ICVA recommends that the Virginia General Assembly adopt
mandatory rules requiring police and other law enforcement departments to
comprehensively videotape, whenever practical, all custodial interrogations
in serious felony cases. In those situations where videotaping interrogations
is not possible, law enforcement should be required to use audiotape to
record custodial interrogations in serious felony cases.
Uniform, thorough, and mandatory videotaping policies can save valuable
police, prosecution, and judicial resources that might otherwise be spent on
unnecessary pre-trial hearings and post-conviction challenges to legitimate
convictions. It will create powerful evidence of guilt in the vast number of
instances when suspects make reliable, genuine confessions to crimes they
did commit. It also will reduce the number of frivolous challenges alleging
that police either failed to advise suspects of their rights or did so in an
inadequate manner, alleging that police used improper or high pressure
interrogation practices, or alleging that incriminating statements were never
made. In sum, recording interrogations will provide accurate, complete,
and incontrovertible records that can objectively portray police
interrogation practices and the physical, mental, emotional or other
limitations or attributes of suspects that can, at times, contribute to or
produce false confessions.
As with the recommendations in the previous section concerning
eyewitness identification procedures, the following recommendations
concerning interrogation practices should be achieved by legislation
mandating the recording of interrogations in all serious cases whenever
practicable; judicial decisions enforcing sanctions for the unexcused failure
to comply with videotaping requirements; and videotaping policies and
procedures implemented by law enforcement agencies at the local level.

A VISION FOR JUSTICE

The Virginia General Assembly should require law enforcement
personnel to videotape custodial interrogations of suspects in all
homicide and serious felony cases, to the extent practicable.

The ICVA recommends that the Virginia General Assembly adopt rules
requiring law enforcement officers to videotape the custodial interrogation
of suspects in homicide and serious felony cases whenever practicable. At
a minimum, law enforcement should be required to use audiotape to record
interrogations when videotaping is not practicable. Videotaping
interrogations is the only reliable way to accurately record the verbal and
nonverbal behavior and communication of police and suspects during
custodial police questioning.90 Audiotape fails to capture their body
language, facial expressions, and demeanor, the physical proximity of the
interrogators to the suspects, and myriad other factors that potentially can
contribute to or induce false confessions, but is preferable to failing to
electronically record interrogations at all.

Videotaping
interrogations is
the only reliable
way to accurately
record the verbal
and nonverbal
behavior and
communication of
police and suspects
during custodial
police questioning.

Law enforcement officers are not required, under current Virginia law, to
obtain suspects' consent or even inform them that their interrogations are
being electronically recorded.91 Surreptitious recording of custodial
interrogations is advantageous to law enforcement because it reduces the
likelihood that suspects will measure their words, perform for the camera,
or engage in other behavior that interferes with the interrogation process.
In the past, videotaping of all police questioning has been impractical; after
all, police frequently question potential suspects at crime scenes, in their
homes, at work, or in other locations where videotape equipment is not
generally available. However, recent technological advances, including
portable cameras and digital cameras, make videotaping and storing
recorded interrogations more practical and affordable. This is all the more
true when police and other law enforcement agencies use specifically
designated rooms for custodial interrogation in their station houses. These
areas can be, and often are, outfitted with videotape equipment that should
be used to record custodial interrogations.
The ICVA recognizes that some Virginia law enforcement agencies,
particularly smaller agencies, do not yet have videotape technology. Other
jurisdictions have used federal law enforcement block grants that every
state receives to fund the purchase of videotape equipment for interrogation
purposes. The ICVA recommends that Virginia allocate some of its law
enforcement block grant funds to assist local law enforcement agencies with
the purchase of videotape equipment to be used to record custodial

Recent
technological
advances, including
portable and digital
cameras, make
videotaping and
storing recorded
interrogations
more practical and
affordable.

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interrogations. In the interim, the ICVA recommends that Virginia require
law enforcement agencies that do not currently have videotape equipment to
use audiotape to record interrogations, until all law enforcement agencies in
the Commonwealth are able to install videotape technology. The additional
recommendations described below for videotaping interrogations should
apply equally to interrogations preserved by audiotape.
2.

The benefits of mandatory videotaping of custodial interrogations for the
accurate administration of justice can be achieved only if the entire
interrogation process is recorded, from the initial Miranda warnings until
the interviewing has ended. Historically, police have often only
documented custodial interrogations, either through written documents or
electronic recordings, sometime after questioning has started and frequently
only after suspects have begun to make incriminating statements.
Requiring videotaping of custodial interrogations from the very beginning
of police questioning in the stationhouse, including the initial Miranda
warnings, through the very end of the police questioning will accurately and
objectively preserve all of the police conduct and suspect behavior during
the interrogation process.
A Florida wrongful conviction is an extreme example of the problem posed
by taping only part of an interrogation:
What jurors in the Behan murder case saw: a bland muddled 14-page
narrative in which a 15-year-old mentally retarded Timothy Brown
implicates himself in the shooting of Broward sheriff's Deputy Patrick
Behan. What jurors did not see: the almost three-hour interrogation that
preceded that "confession," an off-the-record span during which Brown
claims he was screamed at, smacked, and menaced with a detective's
revolver.92

Videotaping should start as soon as the police begin questioning a suspect
in the stationhouse, and before the police first advise suspects of their
Miranda rights. This will help eliminate many frivolous claims that
improper or no warnings were given to suspects, and in some cases may
verify that Miranda warnings were not properly administered. Every time
the recording is interrupted, the police should be required to note the time

A VISION FOR JUSTICE

and reason for the interruption of the videotape and note the time that the
videotaping resumed. This will ensure that the complete interrogation has
been recorded and will prevent allegations that gaps in the recording of
interrogations occurred.
Complete, recorded interrogations protect law enforcement officers against
spurious claims of misconduct and are powerful evidence supporting valid
confessions. Sometimes, recorded interrogations may expose false or
otherwise unconstitutional confessions.
3.

The Virginia General Assembly should provide that failure to
record an entire, complete custodial interrogation would make any
confession obtained from that interrogation potentially subject to a
general exclusionary rule.

To ensure that law enforcement agents have an incentive to comply, the
new legislation governing custodial interrogations should provide that the
failure to record an entire, complete custodial interrogation would make any
confession obtained from that interrogation potentially subject to a general
exclusionary rule. The ICVA recommends that substantial violations of
rules requiring videotaping of complete custodial interrogations should lead
to suppression of any statements made by suspects during such
interrogations. The ICVA further recommends that any violation of the
videotaping rules be presumed to be substantial unless the prosecution
proves by a preponderance of the evidence that the violation was not
substantial.
The Constitution Project has proposed carefully crafted rules, based on the
American Law Institute's Model Code of Pre-Arraignment Procedure,
delineating those violations of videotaping requirements that should be
deemed substantial. The ICVA recommends that the Virginia General
Assembly and courts adopt the Constitution Project's substantial violation
standards, which will be available on the Constitution Project’s web site,
http://www.constitutionproject.org.93 Consistent with the Constitution
Project's standards, examples of substantial violations requiring the
suppression of a suspect's statement would include the failure to use
interrogation rooms outfitted with videotape technology when such
facilities exist and intentional efforts to induce suspects to waive the right to
the complete recording of custodial interrogations.

Complete, recorded
interrogations
protect law
enforcement
officers against
spurious claims of
misconduct and are
powerful evidence
supporting valid
confessions.

On the other hand, excusable failures to electronically record that would not
lead to the suppression of suspects' statements would include unavoidable

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power or equipment failures and the refusal of suspects to speak on tape.94
Even in these circumstances, the ICVA recommends that trial courts
provide cautionary instructions to juries that they should consider the lack
of recording when deciding what was said and done and whether the
purported statement was voluntary.
4.

Law enforcement officers should avoid using high pressure
interrogation practices when questioning children and suspects
who have developmental disabilities.

The David Vasquez and Earl Washington cases illustrate the nationwide
experience with false confessions; often the most vulnerable members of
society are the most susceptible to the pressures of interrogation and
sometimes those pressures cause them to falsely confess. For these reasons,
many experts recommend that when police interrogate children or those
they have reason to believe have mental retardation or other significant
developmental disabilities, care should be taken to avoid high pressure,
suggestive interrogation techniques because of the heightened possibility of
eroding the reliability of these suspects' statements and the danger of
inducing false confessions.
Virginia law enforcement agencies should adopt policies that prohibit the
use of these high pressure interrogation techniques in these kinds of cases.
Law enforcement officers have long been trained in the techniques for
avoiding leading, suggestive questions when interviewing child victims, and
these same techniques should be applied when questioning all vulnerable
suspects, including those with developmental or mental disabilities. Law
enforcement agencies also should provide training to their officers in
identifying adults with intellectual deficits, as the Broward County Sheriff's
Office has done.
5.

Virginia courts should permit, in appropriate cases, the
introduction of expert testimony concerning the factors that can
contribute to false confessions.

Virginia law currently permits defense expert testimony about the factors
that can lead suspects suffering from mental retardation to falsely confess to
crimes that they did not commit. However, no reported Virginia appellate
court decision addresses the admissibility of expert testimony on the factors
contributing to false confessions in cases where the defendants do not suffer
from any intellectual deficits.

A VISION FOR JUSTICE

Several research studies documenting proven false confession cases, many
of which have been verified by DNA evidence, show that the majority of
individuals who falsely confess possess normal intellectual functioning and
are not mentally retarded. Expert testimony that can explain to jurors, in a
general way, the factors that can lead people with normal intellectual
capabilities to falsely confess will aid jurors in understanding a
phenomenon that is not generally understood by lay people. The ICVA
recommends that, in appropriate cases, the Virginia courts permit the
introduction of such expert testimony whether or not the defendant suffers
from mental retardation.
III. Discovery Practices
A.

Introduction

The American criminal justice system is based on an adversarial model that
places significant burdens on defendants to protect their own rights and
interests and to discover the evidence that exists in the case that might be in
the possession of the prosecution. In criminal cases, the initial gathering of
evidence is normally done by the police and the prosecution. This
information is almost never shared with defendants before formal charges
are sought, and oftentimes, much of the evidence discovered by the police
and prosecution is not shared even after charges have been filed.
Nevertheless, information about the government's evidence against the
accused, which is commonly called "pre-trial discovery," is critical to
ensuring that the truth is revealed and avoiding the conviction of an
innocent person. Pre-trial discovery is critical in order for defense counsel
to adequately prepare for trial, confront the witnesses against the defendant,
and advise the defendant on the strength of the prosecution's case and on the
acceptability of any plea offer.

"Pre-trial
discovery" is
critical to ensuring
that the truth is
revealed and
avoiding the
conviction of an
innocent person.

Fundamental constitutional due process rules require the government to
disclose limited information to the defense in order to ensure a fair trial,
including obviously exculpatory evidence. Some states have discovery
rules that go substantially beyond the limited constitutional requirements
and provide defendants with more disclosure of the government's evidence
which allows them to better prepare for trial. In addition, some prosecutors
have policies permitting open-file discovery in which they essentially share
with the defense all of the information law enforcement has gathered in the
case, except for confidential or privileged materials.

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Inadequate
preparation by trial
counsel can play a
significant role in
wrongful
convictions.

Defendants in
Virginia are not
legally entitled to
and often do not
receive other types
of discovery that
are generally
provided to the
accused in other
jurisdictions.

Nevertheless, because common discovery rules in criminal cases generally
mandate that only limited information be disclosed to the defense, many
defendants go to trial without a full understanding of the evidence and
information in the prosecution's possession. This discovery tradition does
not promote the thorough and adequate preparation by the defense for trial.
Inadequate preparation by trial counsel can play a significant role in
wrongful convictions.
B.

Virginia Law on Discovery

Defendants' discovery rights in criminal cases in Virginia are limited. The
Virginia rules governing discovery give defendants the right to copy any
written statements or confessions and the substance of any oral statements
made by defendants to the police. These rules also entitle defendants to
copy the written scientific reports of the Commonwealth’s experts, but not
the work notes or memoranda on which the reports were based.95 The rules
further provide that if defendants can show that physical evidence in
possession of the Commonwealth – including papers, documents, or
tangible objects – may be material to preparation of their defense, the courts
may order that defendants be permitted to inspect, copy, or photograph such
evidence if the requests are reasonable.96 Finally, prosecutors in Virginia
are obligated to provide to the defense exculpatory evidence in their
possession or in the possession of others acting on the Commonwealth's
behalf, including the police.97
Defendants in Virginia are not legally entitled to and often do not receive
other types of discovery that are generally provided to the accused in other
jurisdictions. For example, Virginia defendants preparing for trial are not
entitled to the names and addresses of eyewitnesses to a crime, nor can they
insist that the Commonwealth provide the names of its trial witnesses until
the trial begins.98 They are not entitled to written or oral statements made
by prospective Commonwealth’s witnesses to police officers in connection
with an investigation or prosecution, unless such statements are
exculpatory,99 or to copies of police investigative reports.100 When
Commonwealth witnesses at trial have given previous statements to the
police, defendants are not permitted to obtain copies of those statements
after the witnesses testify on direct examination in order to cross examine
the witnesses about inconsistencies between their statements.101

A VISION FOR JUSTICE

Virginia Commonwealth's Attorney Procedures and Practices
Concerning Discovery

The ICVA surveyed Commonwealth’s Attorneys about their discovery
practices, seeking to understand under what circumstances they do or would
share information with the defense. As Table Four indicates, half of the
offices that responded to the survey provide the minimum required by law.
Perhaps a better way of stating this result is that half of the responding
Commonwealth’s Attorneys Offices provide more discovery than is
required by law. About forty percent of offices disclose investigative
reports from police officers. A similar number provide witness statements.
One-third of offices offer the names and addresses of the Commonwealth’s
witnesses who will testify at motion hearings or trial, while a quarter of
prosecutors’ offices provide summaries of reports from laboratory
technicians or forensic experts if written reports are not prepared. Finally,
twelve percent of offices disclose officers’ field notes, and just four percent
provide bench or lab notes from forensic experts.
TABLE FOUR – PROSECUTORS’ DISCLOSURE PRACTICES
Disclosure Policy

% Responding Offices

Minimum Required by Law

Officers’ Investigative Reports

Witness Statements

Names/Addresses of Witnesses

Summaries of Labs

Officers’ Field Notes

Bench or Lab Notes

When prosecutors
were asked why
they maintained an
open file policy,
their answers
generally focused
on issues of
fairness and
making sure that
they comply with
legal requirements
to provide
exculpatory
evidence to the
defense.

N = 26
When prosecutors were asked why they maintained an open file policy,
their answers generally focused on issues of fairness and making sure that
they comply with legal requirements to provide exculpatory evidence to the
defense. As one office responded, the policy “avoids [the] failure to
disclose exculpatory evidence” by forcing the “defendant to take
responsibility for” investigating the case. Said another, “it is both fair and
practical in day-to-day cases.” Other offices said the policy helped to make
prosecutions more efficient, including that open files policies help to “better
identify cases that require trial or not,” lead to “better plea negotiations,”

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and insulate the office from the failure to disclose evidence while having
little practical effect on the success of prosecutions.

A 2004 report by the Spangenberg Group commissioned by the American
Bar Association comprehensively reviewed the indigent defense system in
Virginia, including the discovery process.102 The Spangenberg Report was
based on in-depth interviews with judges, court clerks, prosecutors, public
defenders, and court-appointed attorneys in thirteen of Virginia's thirty-one
judicial circuits and reviews of documents, databases, and other
information. That report found that in many criminal cases in which
prosecutors do not have defendant statements and obviously exculpatory
information, defense counsel receive no discovery at all, not even the police
reports that form the basis for the criminal accusations against the
defendants.
Furthermore, the Spangenberg Report noted that in a number of counties,
including even those with purported "open file discovery" policies, the
discovery is dependent upon an individual defense lawyer’s relationship
with the Commonwealth's Attorney, and that sometimes defense counsel
receive more discovery if they choose not to file formal discovery requests
with the court. Finally, that report found that even in counties in which the
prosecutors have express "open file discovery," defense counsel sometimes
believe the prosecutors do not share everything with them.103 Conversely,
however, some Commonwealth’s Attorneys offices surveyed by the ICVA
reported that “some defense attorneys never look at the files.”
D.

Discovery Issues in the Cases of Virginia Exonerees

Three of the eleven cases of official exonerations that the ICVA
investigated involved failures by the police and prosecutors to reveal critical
exculpatory information to the defense, the disclosure of which could have
played a role in preventing these unjust convictions. These findings are
consistent with national studies of wrongful convictions that find that
failures to disclose exculpatory information to the defense and other
discovery violations play significant roles in the conviction of innocent
people.104
1.

Walter Snyder

In the Walter Snyder case, the police failed to disclose to the defense that
the rape victim initially told them that the room was dark and she could not
see the face of the rapist, although she later testified at trial that she could

A VISION FOR JUSTICE

see his face and identified Snyder as the perpetrator. Similarly, the police
never disclosed that when the victim looked at a photo array of suspects,
she indicated that four of them, not including Snyder, looked familiar and
also stated that Snyder's eyebrows looked familiar, but that she was not
prepared to identify Snyder as the rapist. The detective instead testified at
trial that the victim positively identified Snyder as the rapist during this
procedure. Finally, the victim told police that her attacker had smooth, soft
hands and smelled like alcohol and body odor, but these facts were never
disclosed to the defense. Instead, after learning that the police suspect,
Snyder, worked with his hands as a heating and cooling repairman and lived
in the basement of his parent's home, the victim testified at trial that the
rapist smelled of alcohol, smoke and "a musky-type odor . . . kind of a
combination of oil and a basement."
2.

Edward Honaker

In the Edward Honaker case, the rape victim and her male companion told a
park police ranger that the rapist drove a yellow or light colored truck. The
victim further told the ranger that the attacker wore a very large crucifix and
she indicated that "she was not allowed to clearly see the individual during
the entire sequence of events." All of this information was contained in the
park ranger's written report, which was never turned over to the defense. At
trial, both the victim and her companion identified Honaker's blue truck as
the one driven by the rapist. The prosecution also introduced into evidence
at trial a small crucifix belonging to Honaker that was seized from his
home, suggesting that this was the one identified by the victim.
Finally, and most importantly, the police and prosecution never revealed to
the defense that four months after the crime, the rape victim and her
boyfriend were hypnotized, and for the first time identified Honaker's
photograph as that of the rapist. Nor did the prosecution disclose that the
two witnesses were together during the hypnosis while they were viewing
photographs. Under Virginia law at the time, these witnesses’ posthypnotic recollections, their out-of-court identification of Honaker's
photograph, and their in-court identification of Honaker as the rapist would
not have been admissible at trial.105
3.

Jeffrey Cox

The police and prosecutors failed to disclose to the defense in Jeffrey Cox's
case significant information that would have undermined the credibility of
the two key prosecution eyewitnesses in the case. The police and

INNOCENCE COMMISSION FOR VIRGINIA

prosecutors never revealed that one of the two witnesses who identified Cox
as the kidnapper had multiple felony convictions. The prosecution also
failed to correct the record at trial when the witness perjured himself about
his criminal record. Nor did the prosecution disclose that the other
eyewitness had pending criminal charges for failing to appear in court when
she identified Cox at a pre-trial hearing. In addition, this witness was being
prosecuted for trespassing and assault by the same Commonwealth's
Attorney’s office that was prosecuting Cox for abduction and murder. The
prosecutor put her charges on hold until after Cox was convicted, when the
charges were dismissed. Instead of sharing this information with the
defense, the prosecutor vouched for the veracity of both witnesses in his
closing argument when he stated:
Now, what did we produce to convince you beyond a reasonable doubt?
We took two eyewitnesses, not one, but two people who have absolutely
no axe to grind, and no reason to come in here and misidentify anybody.
They are simply citizens in the City of Richmond that happen to be living
in the community on the night this occurred.

The prosecution also did not provide to the defense a forensic laboratory
report that indicated that two hairs found on the victim's body were very
fine, white Caucasian hairs, which could not have matched Cox's brown
hair. The police also did not turn over a second, exculpatory composite
drawing that differed from one provided to the defense, nor did they
disclose a "Crime Stoppers" report containing descriptions of the abductor
derived from the government's two eyewitnesses that did not match Jeffrey
Cox's physical description.
E.

Best Practices for Discovery Procedures

In civil litigation, where parties' contractual, statutory or other rights are
contested, the American legal tradition permits thorough and oftentimes
exhaustive discovery of the evidence and information possessed by the
opposing side. Civil litigation often requires parties to share documents and
to respond in writing to questions or "interrogatories" from the opponent,
and permits parties to depose key witnesses under oath. In contrast, in
criminal cases in which defendants' liberty and sometimes their lives are at
stake, prosecutors' obligations to share information are drastically more
limited.

A VISION FOR JUSTICE

Over thirty years ago, the Criminal Justice Section of the American Bar
Association (“ABA”) created a comprehensive set of Criminal Justice
Standards addressing every facet of the criminal justice system, including
the discovery process.106 When the ABA issued the initial seventeen
volume standards in 1968, United States Supreme Court Chief Justice
Warren Burger described the project as "the single most comprehensive and
probably the most monumental undertaking in the field of criminal justice
ever attempted by the American legal profession in our national history." 107
The ABA Discovery Standards are designed to promote the fair and
expeditious resolution of criminal cases, to provide defendants with
sufficient information to make informed plea decisions, to permit thorough
preparation for trial and minimize surprise, to reduce trial interruptions and
delays, to conserve judicial and professional resources, and to minimize
burdens on victims and witnesses.108 To this end, the Second Edition of the
Discovery Standards states that prosecutors should disclose the following
information to the defense within a reasonable time before trial and permit
the defense to inspect, copy, test and photograph documents and tangible
objects: 109
•

All written and all oral statements of the defendant or of any codefendant that are within the possession or control of the prosecution
and that relate to the subject matter of the offense charged, and any
documents relating to the acquisition of such statements.

•

The names and addresses of all persons known to the prosecution to
have information concerning the offense charged, together with all
written statements of any such person that are within the possession or
control of the prosecution and that relate to the subject matter of the
offense charged. The prosecution should also identify the persons it
intends to call as witnesses at trial.

•

The relationship, if any, between the prosecution and any witness it
intends to call at trial, including the nature and circumstances of any
agreement, understanding or representation between the prosecution
and the witness that constitutes an inducement for the cooperation or
testimony of the witness.

•

Any reports or written statements of experts made in connection with
the case, including results of physical or mental examinations and of
scientific tests, experiments, or comparisons. With respect to each
expert whom the prosecution intends to call as a witness at trial, the

INNOCENCE COMMISSION FOR VIRGINIA

prosecutor should also furnish to the defense a curriculum vitae and a
written description of the substance of the proposed testimony of the
expert, the expert’s opinion, and the underlying basis of that opinion.
•

Any tangible objects, including books, papers, documents,
photographs, buildings, places, or any other objects, which pertain to
the case or which were obtained for or belong to the defendant. The
prosecution should also identify which of these tangible objects it
intends to offer as evidence at trial.

•

Any record of prior criminal convictions, pending charges, or
probationary status of the defendant or of any codefendant, and
insofar as known to the prosecution, any record of convictions,
pending charges, or probationary status that may be used to impeach
any witness to be called by either party at trial.

•

Any material, documents, or information relating to lineups, showups, and picture or voice identifications in relation to the case.

•

Any material or information within the prosecutor’s possession or
control which tends to negate the guilt of the defendant as to the
offense charged or which would tend to reduce the punishment of the
defendant.

•

If the prosecution intends to use character, reputation, or other act of
evidence, the prosecution should notify the defense of that intention
and of the substance of the evidence to be used.

•

If the defendant’s conversations or premises have been subjected to
electronic surveillance (including wiretapping) in connection with the
investigation or prosecution of the case, the prosecution should inform
the defense of that fact.

•

If any tangible object which the prosecutor intends to offer at trial was
obtained through a search and seizure, the prosecution should disclose
to the defense any information, documents, or other material relating
to the acquisition of such objects.

Many states have adopted discovery rules in criminal cases that are
modeled on the expansive policy urged by the ABA Discovery Standards.
At least twenty-one states require prosecutors to provide to the defense
most of the information called for by the ABA Discovery Standards,110 and

A VISION FOR JUSTICE

more than half the states require prosecutors to provide the majority of this
information to defendants.111 In contrast, only three states entitle defendants
to as little discovery as prosecutors are obligated to provide in Virginia,112
and no state allows prosecutors to provide less discovery than is required
under Virginia procedures.113
F.

Recommendations for Discovery Practice Reform in Virginia

Discovery problems contributed to some of the wrongful convictions
investigated by the ICVA. In some instances, the undisclosed information
was obviously exculpatory and the failure to disclose was in violation of
existing law. However, in other instances, the information that was not
disclosed was not as obviously exculpatory from the perspective of the
prosecution but clearly would have been viewed as exculpatory by defense
counsel. Much of this information was contained in police reports or
witness statements that could have been used by the defense to cast doubt
on the government's case had the reports been shared. In some of the cases,
forensic reports that supported the defense theory were never shared with
the defense.
No matter the reason that exculpatory material was not provided to the
defense in these cases, there seems little question that more expansive
discovery might have prevented the wrongful conviction of innocent
defendants. Reforming the discovery process by mandating the disclosure
of more information through open file discovery procedures would help
make sure that failure to disclose does not contribute to future wrongful
convictions.
1.

Virginia should amend the formal discovery rules to mandate
open-file discovery procedures.

Only three states
entitle defendants
to as little
discovery as
prosecutors are
obligated to
provide in Virginia,
and no state allows
prosecutors to
provide less
discovery than is
required under
Virginia
procedures.

The ICVA recommends that the General Assembly and the courts require
that Commonwealth’s Attorneys share with the defense all the information
that law enforcement and prosecutors have collected and have in their files,
except for confidential and privileged information or any information that,
if disclosed, could endanger witnesses or otherwise pose substantial threats
to public safety. In these instances, prosecutors should be required to
clearly demonstrate the need to withhold this information.
Virginia's current discovery rules are among the most restrictive in the
nation, providing criminal defendants with little more than what is
constitutionally mandated. Currently, Virginia prosecutors are not required

INNOCENCE COMMISSION FOR VIRGINIA

to disclose any of the following information to the defense, unless it
contains exculpatory material:

Prosecutors who
practice open file
discovery report
that their policies
do not hamper
prosecutions but
do limit discovery
battles and often
encourage
defendants to plead
guilty because the
evidence against
them is
transparent.

•

the names and addresses of prosecution witnesses;

•

the investigative reports prepared by law enforcement officers;

•

the statements made by codefendants to a State agent which the
Commonwealth intends to use at a joint hearing or trial, the substance
of such oral statements, and copies of reports containing the substance
of such oral statements;

•

written witness statements and summaries of oral statements given to
the law enforcement officers by witnesses;

•

relevant information or material regarding specific searches and
seizures, wiretaps or eavesdropping, the acquisition of statements
made by the defendant to a State agent that the Commonwealth
intends to use at a hearing or trial, and pretrial identification of the
defendant by a witness for the Commonwealth.

The ICVA believes that mandating disclosure of these types of materials
will, as in other jurisdictions around the country, help the prosecution
determine which cases should be tried and encourage guilty pleas rather
than wasting scarce resources on needless trials. At the same time it
imposes no additional burden on police, prosecutors, victims or witnesses,
and assists in the prevention of future wrongful convictions.
In practice, approximately half of the Commonwealth’s Attorneys surveyed
by the ICVA already provide more discovery than is required by the United
States Constitution – a practice that the ICVA applauds. Forty-one percent
of the Commonwealth's Attorneys surveyed have already adopted “open
file” discovery policies consistent with the ICVA’s recommendations.
Those prosecutors who practice open file discovery report that their policies
do not hamper prosecutions but do limit discovery battles and often
encourage defendants to plead guilty because the evidence against them is
transparent. Because the open file discovery practices that already have
been adopted by a substantial number of Virginia prosecutors not only
streamline the administration of justice but also can prevent wrongful
convictions, the ICVA recommends adoption of these procedures
throughout the Commonwealth.

A VISION FOR JUSTICE

IV.

Unwarranted Focus on Single Suspect or "Tunnel Vision"

Introduction

It is a basic premise of the criminal justice system that law enforcement
officers operate in good faith and that when they target a suspect they
genuinely believe that the suspect is the perpetrator. Most of the time the
suspect is in fact truly guilty. However, as the cases reviewed by the ICVA
illustrate, sometimes innocent people are mistakenly arrested, charged, and
convicted.
Many cases of wrongful conviction involve high profile and heinous
crimes, which can create intense pressure on the police to solve the crimes
and to solve them quickly. In some cases the pressure to solve the crime
quickly may have contributed to a police tendency to focus too narrowly on
a single suspect even when the evidence was questionable and suggested
the suspect’s innocence.
The phenomenon in which the police too quickly jump to the conclusion
that a particular suspect is guilty or focus solely on one person to the
exclusion of other viable suspects is commonly referred to as "tunnel
vision." 114 Police officers do not deliberately or knowingly engage in
tunnel vision, but its existence leads officers to focus on, investigate, and
gather evidence that supports the conclusion that the suspect is guilty and to
disregard evidence that might lead to another suspect. As part of the tunnel
vision process, the police may minimize or even sometimes ignore evidence
that suggests the suspect is innocent, that might undermine the evidence of
guilt against the suspect, or that indicates that another suspect may have
committed the crime. Prosecutors and judges also can be susceptible to a
form of tunnel vision. When prosecutors discount exculpatory evidence
and when judges reject contrary evidence, the consequences are similar to
those that flow from police tunnel vision.
B.

Tunnel Vision in the Cases of Virginia Exonerees

Eight of the cases studied by the ICVA may have involved tunnel vision.
Tunnel vision seems to be particularly problematic when the police focus
on a suspect for reasons that seem due to chance. This does not mean to
suggest that police officers should not follow their instincts or should not
follow-up potentially remote leads. However, officers should be alert and
sensitive to the dangers of tunnel vision in these situations.

INNOCENCE COMMISSION FOR VIRGINIA

The only reason
Marvin Anderson
became a suspect
was because the
rape victim said
that her attacker
was a black man
who said he had a
white girlfriend,
and Anderson was
the only black man
the officer knew
who dated a white
woman.

Marvin Anderson

The only reason Marvin Anderson, who had no criminal record, became a
suspect was because the rape victim said that her attacker was a black man
who said he had a white girlfriend, and Anderson was the only black man
the investigating police officer knew who dated a white woman. Yet,
Marvin Anderson did not match the physical description of the assailant
given by the rape victim; she described her attacker as 5'4" to 5'7" in height
with a thin moustache, and she told police that she scratched her assailant.
Marvin Anderson was 5’9” tall, had a dark complexion, did not wear a
moustache, and had no scratches when he was interviewed by police shortly
after the crime.
Moreover, soon after the rape occurred, rumors circulated in the community
that Otis "Pop" Lincoln actually committed the crime. Lincoln had served
jail time for a prior sexual attack and was awaiting trial on another sexual
assault on a female college student at the time of this crime. Witnesses near
the site of the rape, shortly before it occurred, saw Lincoln riding a bicycle,
heard him make sexually suggestive comments to young girls walking by
and comments suggesting he might sexually force women against their will,
and then saw him ride toward the area where the rape occurred.
Nevertheless, the police apparently ruled out Lincoln as a suspect once the
victim viewed a photograph of Anderson and identified him as her rapist.
Anderson was promptly charged with the rape. Six years later, Lincoln
testified in court during Anderson's habeas proceeding that he had robbed
and raped the victim, but the prosecutors and the court rejected his
confession. More than a decade later, DNA evidence proved that Lincoln
committed the rape.
2.

Julius Ruffin

Julius Ruffin became a police suspect because of a chance encounter that he
had with the rape victim in an elevator. Like Marvin Anderson, Ruffin did
not match the physical description given by the victim of the rapist in his
case. Ruffin was 6'1" tall, weighed 170 pounds, is a light-skinned black
man, has prominent gold front teeth, and had facial hair at the time of the
attack. By contrast, the victim in his case described her attacker as a 5'6"
tall, 150 pounds, dark-skinned black man, and did not describe gold teeth or
facial hair.

A VISION FOR JUSTICE

David Vasquez

Two witnesses reported seeing David Vasquez in the area around the time
of the murder and described him as someone who had acted strangely in the
past. The police appropriately considered Vasquez as a possible suspect or
at least as someone they should interview. The police interrogated Vasquez
and obtained a confession from him, but his confession contained many
clues that should have led police to be wary of it, since it contained few, if
any, details of the crime and the details Vasquez gave did not match the
known facts of the crime. Even after confessing, Vasquez continued to
express confusion about how he could have gotten from his home in a
different county to the victim's home. Moreover, Vasquez’s blood type did
not match the perpetrator’s semen. Even though the police apparently
recognized that Vasquez had neither the physical ability nor the intellectual
capacity to commit the crime by himself, the police clung to the idea that
Vasquez was involved even though no other evidence linked him to the
crime other than his confession.
4.

Earl Washington

Similarly, Earl Washington was charged with murder by the police based
almost exclusively on his muddled confession a year after the crime
occurred. Police very quickly eliminated Washington as a suspect in four
other unrelated burglaries to which he confessed at the same time, but
persisted in their investigation of him for the murder. Washington's
confession in the murder case was riddled with inconsistencies and glaring
errors – such as getting the race of the victim wrong – but the police
discounted those mistakes and proceeded in charging him with the murder.
5. Russell Gray
In Russell Gray's case, there was certainly reason to focus on Gray early in
the investigation: an eyewitness identified Gray as the shooter in the
murder, and another witness picked out his picture as someone whom she
saw in the area of the shooting. However, the police interviewed only three
of the many witnesses who had information about the crime and never
spoke with witnesses later identified by the defense as having critical and
exculpatory information. Moreover, persistent rumors circulated in the
neighborhood and apparently came to the attention of the police that
Michael Harvey, the actual shooter, committed the murder. The prosecutor

INNOCENCE COMMISSION FOR VIRGINIA

who later helped exonerate Gray remarked that "[t]here were a ton of people
who could have testified that didn't [testify]. . ." and as a result "we ended
up trying a case with half the evidence and convicted the wrong man." 115
6.

Craig Bell

Craig Bell was accused and convicted of murdering his girlfriend
principally because of purported inconsistencies among the several
unrecorded statements he gave to the police, because his blood type
matched the murderer's, and because he smoked the same type of cigarettes
and had the same style of underwear as the actual murderer. However, a
number of facts suggesting that Bell did not murder his girlfriend were
apparently discounted by police and rejected by the jury. First, the police
found a window screen knocked out and a lamp hanging outside a
downstairs window, which suggested someone entered or fled the home
through the window. A partial palm print on the window, which was later
found to match the real killer, did not match Bell or anyone else who lived
or visited the home. Finally, community members reported seeing a naked
black man running through the neighborhood the night that Bell's girlfriend
was murdered, and the real killer later told police that he was naked when
he fled Bell's home.

Jeffrey Cox

Jeffrey Cox's photograph was included in photo arrays shown to the two
eyewitnesses in his case because one of the original suspects, Steven Hood,
told police that Cox was known to spend time with the other prime suspect,
Billy Madison. The police originally focused on Madison and Hood
because they believed the abduction and murder were drug-related, they
knew that Madison had recently been beaten up by a drug dealer during a
drug transaction, and they suspected that Madison and Hood were out for
revenge in the neighborhood where the victim lived. However, when two
witnesses tentatively selected Cox's photograph in a photo array as
resembling the knife-wielding kidnapper, the police ended their
investigation of Madison and Hood and focused exclusively on Cox. The
work of an FBI agent 116 who became convinced of Cox's innocence, along
with the efforts of Cox's new lawyers, led not only to Cox's exoneration, but
also to Hood's arrest and conviction for this crime over a decade after it had
occurred.

A VISION FOR JUSTICE

Arthur Whitfield

The police focused on Arthur Whitfield because he was a suspect in an
attempted burglary that occurred on the same evening, around the same
time, and in a nearby neighborhood as the rapes for which he was later
charged, and the burglar, like the rapist, carried a knife. Certainly, the
police had strong reasons to suspect that Whitfield was the rapist.
However, obvious evidence known by the police strongly suggested that
Whitfield could not be the rapist. The second rape victim stated that her
assailant was kissing and necking her during the sexual assault. She told
the police that the rapist had no facial hair, a fact of which she was likely
certain given the kissing and necking by the rapist. Whitfield, however, had
a heavy moustache a week after the rapes when he appeared in a police
lineup, and the police took photographs showing his moustache that same
day.
C.

Best Practices to Avoid Tunnel Vision

Several recent studies into wrongful convictions have concluded that police
training is the key to help officers avoid tunnel vision during their
investigations.117 These studies suggest that the police should be trained to
pursue all reasonable investigatory leads, even those that point away from
the suspect, and that they should be trained to document all exculpatory
evidence that indicates that a suspect may not be guilty of the crime being
investigated, and to include all this information in their official police
reports. Some commentators have recommended that case studies of
wrongful convictions be used in order to highlight the dangers presented by
tunnel vision.118
D.

Several recent
studies into
wrongful
convictions have
concluded that
police training is
the key to help
officers avoid
tunnel vision
during their
investigations.

Recommendations for Reform in Virginia Concerning Tunnel
Vision
1.

Tunnel vision, in which officers jump too quickly to the
conclusion that a particular suspect is guilty or focus solely
on one person to the exclusion of other viable suspects, is a
special danger in law enforcement. Law enforcement
agencies should train their officers to document all
exculpatory, as well as inculpatory, evidence about a
particular suspect/individual that they discover and to
include this information in their official reports to ensure
that all exculpatory information comes to the attention of
prosecutors and subsequently to defense attorneys.

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In five of the eleven
wrongful
convictions,
defense lawyers
failed to disclose
serious conflicts of
interest, failed to
appreciate the
appearance of a
conflict of interest,
failed at trial to use
clearly exculpatory
information in
their possession,
failed to vigorously
challenge the
government's
evidence, and/or
missed crucial
deadlines.

Law enforcement agencies should train their officers to
pursue all reasonable lines of inquiry, whether they point
toward or away from a particular suspect.

During the initial training of their officers and during
refresher training for experienced officers, law enforcement
agencies should present studies of wrongful convictions to
highlight the pitfalls of “tunnel vision.”

Defense Counsel

Introduction

Criminal defendants, like most laypeople, usually are ignorant of the
complexities of the criminal justice system and thus depend upon their
attorneys to protect their rights. When their lawyers fail to fulfill their
obligations to capably and zealously defend them, it is the clients, not the
lawyers, who usually suffer the consequences, which can be severe and
long-lasting. When those clients are innocent of the crimes for which they
have been charged, deficient lawyering can significantly contribute to their
wrongful conviction and to their undeserved incarceration. It can even play
a role in their being sentenced to death for crimes that they did not commit.
A number of studies have documented the role that bad lawyering has
played in the conviction of innocent people. Of the first seventy people
exonerated by DNA evidence, the Innocence Project at Yeshiva
University’s Cardozo School of Law found that poor or ineffective defense
counsel contributed to their clients' wrongful conviction twenty-three
times.119 A Columbia University study of capital case appeals, “A Broken
System: Error Rates in Capital Cases, 1973-1995,” found that ineffective
lawyering was the biggest contributing factor to the wrongful conviction or
death sentence for criminal defendants in capital cases over a twenty-three
year period.120
In Virginia, of the eleven cases of wrongful conviction studied by the
ICVA, five involved instances in which the defense lawyers failed to
disclose serious conflicts of interest, failed to appreciate the appearance of a
conflict of interest, failed at trial to use clearly exculpatory information in
their possession, failed to vigorously challenge the government's evidence,
and/or missed crucial filing deadlines. On a broader level, the ICVA's
survey results indicate that some defense counsel in Virginia fail to take

A VISION FOR JUSTICE

advantage of certain prosecutors' open file discovery policies and therefore
do not review all the information available to them in representing their
clients.
Virginia has taken important steps in the past two years to improve the
quality of indigent defense. In 2003, the Commonwealth created a new
team of public defenders in Northern Virginia to handle death penalty cases
in an effort to improve the representation for poor defendants who face
execution. In 2004, the Virginia General Assembly created the Indigent
Defense Commission, which is responsible for overseeing the provision of
legal counsel to indigent defendants in Virginia, including the training and
certification of both private court-appointed attorneys and public defenders.
However, the ICVA believes that additional improvements can and should
be made.

Virginia Law on Conflicts of Interest and Effectiveness of Defense
Counsel

Conflict of Interest

Loyalty is an essential element of lawyers' duties to their clients. A central
ethical maxim is that attorneys must ensure that they do not have divided
loyalties with respect to clients and former clients. In Virginia, if a lawyer
reasonably believes that the representation of a client may be materially
limited by the lawyer's responsibilities to another client or another person,
the lawyer may not represent the client unless the potential conflict of
interest is disclosed to the client and the client consents to the
representation.121 Thus, an attorney has an ethical obligation to clients to
disclose actual or potential conflicts of interest.
The comments to the Virginia Rules of Professional Conduct clearly state
that the potential conflict of interest in representing multiple defendants in a
criminal case is "so grave that ordinarily a lawyer should decline to
represent more than one co-defendant."122 In a similar vein, the Virginia
Court of Appeals has stated, in the context of a potential conflict between a
lawyer's client and a witness represented by the lawyer, that:

If [a] witness's testimony is expected to incriminate the
witness but exculpate the defendant, the attorney must either
assert the witness's right to remain free from self-incrimination

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at the sacrifice of the defendant's best interest or allow the
defendant to be exonerated at the risk of the witness
incriminating himself. Again, a conflict of interest would
exist.123
2.

Ineffective Assistance of Counsel

Criminal defendants also have a right under the Sixth and Fourteenth
Amendments to the United States Constitution to the effective assistance of
counsel in criminal cases. The United States Supreme Court held in
Strickland v. Washington 124 that in order to prove a violation of the right to
effective representation, a criminal defendant must prove that defense
counsel's performance fell below an objective standard of reasonableness,
as measured by the prevailing professional norms, and that defense
counsel's deficient representation prejudiced the defense.125 Historically,
the Strickland standard has created a very high hurdle for defendants to
surmount in order to prevail on claims of ineffective assistance of counsel.
For example, courts generally apply a presumption that decisions by
defense counsel that are later challenged in a claim of ineffective assistance
of counsel were the result of "sound trial strategy" rather than due to
deficient representation.126
In many cases in which innocent defendants raised claims of ineffective
assistance of counsel long before their exoneration, courts ruled that the
attorneys’ performance did not fall below an objective standard of
reasonableness. Yet, further analysis in many of those cases, conducted
after the exonerees' innocence had been proven, showed that mistakes, poor
performance, or even, sometimes, egregious errors by the lawyers
contributed to their clients' convictions for crimes that they did not
commit.127 Thus, it is important in examining the causes of wrongful
convictions to consider the quality of the performance of defense counsel
and the sufficiency of defense resources even when they do not fall below
the level that courts currently recognize as a constitutional violation.
C.

Ineffective Defense Counsel and Defense Counsel with Conflicts
of Interest in the Cases of Virginia Exonerees

Lawyers who represented some of the inmates exonerated in Virginia were
egregiously deficient, and some possessed serious conflicts of interest that
undermined their ability to zealously represent their clients.

A VISION FOR JUSTICE

Marvin Anderson

Marvin Anderson's trial lawyer had previously represented Otis Lincoln, the
actual rapist, on an earlier attempted rape case. The lawyer was told by a
police officer investigating the Anderson case that there was some evidence
that Lincoln committed the rape for which Anderson was ultimately
charged. The lawyer admitted that he suspected that Lincoln committed the
rape, yet, despite this terrible conflict, the lawyer failed to disclose his prior
representation, his suspicions, and his conflict of interest to Anderson, in
violation of the Virginia Rules of Professional Conduct.128
This lawyer was egregiously deficient in other ways. Before trial, he never
asked that the bicycle ridden by Lincoln on the day of the rape be
fingerprinted or introduced into evidence even though the bicycle was in
police custody and might have had the perpetrator's fingerprints on it.
Further, he refused Anderson's mother's repeated pleas to call Lincoln as a
witness. He also refused Mrs. Anderson's urging that he subpoena the two
witnesses who had seen Lincoln accost two girls in the area of the rape
shortly before it happened, who had heard Lincoln's threatening comments,
and who had watched him ride toward the area of the rape immediately
before it occurred. Anderson's trial lawyer presented none of this
exculpatory evidence at trial, which lasted less than five hours, and the jury
convicted Anderson and sentenced him to 210 years in jail.
After his conviction was affirmed by Virginia's appellate courts, Anderson
filed a habeas corpus petition in state court alleging ineffective assistance
of counsel. Lincoln testified under oath at a hearing on Anderson's habeas
claims and admitted that he, and not Anderson, committed the rape and
robbery for which Anderson had been convicted. The trial court
nonetheless denied the habeas petition, the judge specifically stating that he
did not believe Lincoln's testimony. Thirteen years later, Lincoln was
identified as the rapist through the same DNA evidence that exonerated
Anderson.
2.

Jeffrey Cox

In the Jeffrey Cox case, his trial lawyer took time out of the middle of a
two-week long trial in federal court to handle Cox's one-day trial. Possibly
because he was distracted and overworked by his other ongoing case, the
trial lawyer failed to thoroughly investigate the criminal backgrounds of the
two eyewitnesses who identified Cox and failed to uncover the significant
exculpatory evidence that could have undermined the witnesses’ credibility.

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His trial counsel also apparently failed to realize that the prosecution never
turned over the crime laboratory serology reports from the victim's autopsy
that turned out to contain exculpatory evidence. This later proved to be a
damaging mistake when the jury specifically asked, in a note to the judge
during its deliberations, why the analysis of the skin, hair, and fibers found
under the victim's fingernails was not offered into evidence.
However, the trial lawyer was not the only counsel who committed serious
errors in Cox's case. Cox's parents later approached an attorney to handle
their son's appeal and learned that the attorney had previously represented
Billy Madison, the initial and prime police suspect in the crime for which
Cox was convicted. Assuring Cox’s parents that the previous case had been
an unrelated incident, the attorney persuaded them that he could effectively
defend Cox. The attorney filed an appeal that was denied by the Virginia
Court of Appeals but then failed to file a timely appeal before the Virginia
Supreme Court. Then the attorney filed a petition for a writ of habeas
corpus in which he argued that Cox should be entitled to file a belated
appeal due to the attorney's error.
Cox successfully sought permission from the court to withdraw this habeas
petition when he learned that he had only one opportunity to present all his
possible arguments for habeas corpus relief in the Virginia courts and was
in danger of waiving his opportunity to challenge his conviction on other
grounds by pursuing the request for a belated appeal.129 His conviction was
later overturned and Cox was exonerated because of claims raised by his
new counsel in a later-filed habeas petition – claims he would have never
been able to present and would have waived if his appellate lawyer had
wasted his one and only opportunity for a habeas petition.
3.

Edward Honaker

Part of Edward Honaker's defense at trial was that he could not have raped
the victim because the crime laboratory serologist found spermatozoa on the
slides taken from the vaginal swabs of the rape victim. Honaker testified at
trial that he had previously had a vasectomy and, therefore, could not
ejaculate spermatozoa. Thus, Honaker rightly claimed that it was
physically impossible for him to be the rapist. Yet Honaker's defense
counsel never revealed to the Commonwealth serologist that Honaker had a
vasectomy and could not produce sperm. The serologist later swore in an
affidavit that had he been told by either the defense or the government about
Honaker's vasectomy, he would have testified at trial that Honaker could
not be the rapist. Nor did Honaker's trial lawyer present medical records or

A VISION FOR JUSTICE

medical testimony at trial to corroborate Honaker's otherwise
unsubstantiated claim that he had a vasectomy before the rape occurred.
Medical records corroborating Honaker's vasectomy did, in fact, exist and
were presented to Governor George Allen as part of Honaker's clemency
petition ten years later when DNA testing exonerated him.
Honaker's trial counsel also failed to rebut with defense expert testimony or
in any other way challenge the trial testimony of the Commonwealth's
crime laboratory technician that hairs found on the victim's shorts matched
Honaker's hair samples. However, according to Dr. Paul Ferrara, the
Director of the Virginia Division of Forensic Science, unlike DNA evidence
or fingerprint evidence where an absolute match can be declared, the
strongest legitimate statement that can be made concerning the microscopic
comparison of two hairs is that they are consistent.130
4.

Earl Washington

Earl Washington's lawyer failed to present evidence that semen recovered
from a blanket on the bed where the victim was raped came from a man
with a blood type different from Washington's, evidence that strongly
suggested Washington did not commit the crime. The jury that convicted
Washington and sentenced him to death never heard this powerfully
exculpatory evidence because of Washington's lawyer's neglect.
Washington's lawyer also failed to introduce laboratory reports or expert
testimony that proved that Washington's fingerprints and palm prints did not
match unidentified prints found at the crime scene, so this evidence also
was not heard by the jury. Although the police claimed that a shirt found at
the crime scene belonged to Washington, his trial lawyer never established
that the police specifically requested that the crime laboratory not compare
the hair fragments found in the shirt pocket to samples of Washington's
hair. Had this fact been established, counsel could have, but did not, argued
that the police hesitancy to test this evidence demonstrated their doubts
about the accuracy of their case against Washington.

Edward Honaker's
defense counsel
never revealed to
the Commonwealth
serologist that
Honaker had a
vasectomy and thus
could not have
been the
perpetrator.

Furthermore, Washington's trial lawyer never asked the victim's mother
about her statements that the victim and her husband had been fighting the
morning of the attack and that the victim wished to leave her husband and
take their children. The trial lawyer failed to cross-examine the detective
who took Washington's confession about major discrepancies and
inconsistencies in the detective's testimony and major contradictions,
mistakes, and inconsistencies in Washington's confession. Moreover, the
trial lawyer presented no evidence during the guilt phase of Washington's

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trial about his mental retardation and fact that those with mental retardation
are susceptible to coercive interrogation tactics and sometimes agree with
investigators in an effort to please them.
After Washington's direct appeal was denied, his new pro bono lawyers
filed a massive petition for habeas corpus relief, first in state court and later
in federal court. Washington's lawyers claimed, among other grounds, that
Washington received ineffective assistance from his trial counsel based on
many of the deficiencies described above. The Virginia state courts denied
all of Washington's claims. Although the federal courts later concluded that
Washington's lawyer was inadequate, the courts ruled that the lawyer's
errors were not prejudicial, and affirmed Washington's conviction and death
sentence.
5.

Troy Webb

In Troy Webb's case, three separate occurrences showcase how the
performance of defense counsel at trial could have affected the outcome of
the case. First, defense counsel failed to cross-examine the victim
regarding whether she changed her underwear or bathed between her last
sexual encounter with her boyfriend, which could have helped counter the
results of the serology test. After the rape, the police took the victim to the
hospital where a Physical Evidence Recovery Kit (“PERK”) was used to
obtain, among other evidence, semen swabs from the victim. Blood
samples taken by the police from Webb showed that he was a non-secretor,
meaning someone whose blood type is not identifiable from his semen
samples. However, the semen samples from the PERK kit were identified
as blood type A. This happened to be the same blood type as the victim's
live-in boyfriend. For this reason, the crime laboratory technician testified
at trial that semen from someone with blood type A could have masked a
second person's semen from a non-secretor. Thus the technician concluded
that Webb could neither be conclusively identified nor conclusively ruled
out as the perpetrator based on this evidence. Defense counsel never tried
to determine at trial whether the victim changed her underwear or bathed
between her last sexual encounter with her boyfriend and the rape, which
could have helped counter the technician’s testimony. Had the victim done
either of these, the chance that the boyfriend’s sperm masked that of the
perpetrator’s would have been rebutted. In turn, the blood evidence would
have been exculpatory.
Second, Webb’s counsel did not present a defense. Several jurors remarked
after the trial that this fact made it seem as though Webb was guilty because

A VISION FOR JUSTICE

he did not present a “case for himself.” Third, defense counsel made
insensitive comments about the victim during the trial, including suggesting
that the victim’s dress “‘appeal[ed] to somebody’s sexual interest.’ These
comments may well have negatively affected the jury’s view of the lawyer
and his client, too.” 131
D.

Recommendations for Reform in Virginia Concerning Quality of
Defense Counsel

In recent years, a number of organizations with significant staff and
resources have focused specific attention on the state of indigent defense
delivery systems and the quality of indigent defense in both capital and noncapital cases nationwide.132 Recent studies have specifically and
thoroughly examined the provision of indigent defense services in
Virginia.133 The Virginia legislative and executive branches also have
frequently studied the Commonwealth's indigent defense system and its
needs.134 Many of these studies have proposed urgent reforms to improve
the quality of justice in the Commonwealth with respect to the defense
function. The current President of the Virginia Bar Association has recently
echoed these calls by urging policy makers in Virginia to eliminate the
current extremely low caps on fees paid to court-appointed lawyers, to enact
reforms to reduce caseloads of lawyers representing indigent defendants, to
establish appropriate standards for indigent defense representation, and to
provide training and resources so that indigent defenders can adequately
represent their clients.135
By far the most comprehensive review of the indigent defense system in
Virginia was the January 2004 Spangenberg Group report. At the
conclusion of its review, which raised significant concerns about the quality
of indigent defense services in the Commonwealth, the Spangenberg Group
made a series of recommendations to improve these services. Specifically,
the Spangenberg report recommended:
The Virginia General Assembly should fund indigent defense services in
cases requiring appointment of counsel at a level that assures that all
indigent defendants receive effective and meaningful representation.
•

The state should establish a professionally independent indigent
defense commission to organize, supervise, and assume overall
responsibility of Virginia's indigent defense system.

•

The newly created commission on indigent defense should have broad
power and responsibility for the delivery of indigent defense services.

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Virginia still does
not have a statewide public defense
system, which
studies have shown
is the most costeffective, efficient,
and expert
approach for the
representation of
indigent
defendants.

•

The indigent defense commission should adopt performance and
qualification standards for both private assigned counsel and public
defenders. The standards should address workload limits, training
requirements, professional independence and other areas to ensure
effective and meaningful representation.

•

A comprehensive data collection system designed to provide an
accurate picture of the provision of indigent criminal services in
Virginia should be established and implemented by the statewide
commission.

In 2004, the Virginia General Assembly responded to some of the concerns
raised by the Spangenberg Group report, specifically those concerning the
lack of an effective oversight system for indigent defense services in
Virginia and the lack of any monitoring of the system of private, courtappointed counsel. The General Assembly adopted one of the Spangenberg
Group's recommendations and created the new Indigent Defense
Commission, which is responsible for overseeing the provision of legal
counsel to indigent defendants in Virginia. The organization is charged
with overseeing the training and certification of both private courtappointed attorneys and public defenders. However, Virginia still does not
have a state-wide public defense system, which studies have shown is the
most cost-effective, efficient, and expert approach for the representation of
indigent defendants.136
The Spangenberg Group and others who have studied the quality of defense
counsel services in Virginia have concluded that a lack of resources and
insufficient oversight have led to systemic problems in the representation of
indigent criminal defendants. The problems identified in these reports exist
in the representation provided by both Virginia's public defenders and
court-appointed private counsel and have spurred calls for substantial
increases in the resources devoted to indigent defense, significant
improvements in the standards for indigent defense in the Commonwealth,
and other important reforms.
The concerns raised by these reports are particularly relevant when viewed
in the context of the wrongful conviction of innocent defendants. In five of
the cases investigated by the ICVA, the defense counsel had serious
conflicts of interest that compromised their zealous advocacy for their
clients, made significant mistakes in judgment, and/or simply performed
poorly. As the ICVA’s case reports make clear, these errors played
significant roles in the wrongful conviction of these five men. In order to

A VISION FOR JUSTICE

improve the quality of representation of indigent defendants in the
Commonwealth, the ICVA recommends that Virginia adopt the remaining
reforms outlined by the Spangenberg Group.
Although the General Assembly created a new Indigent Defense
Commission in March 2004 that requires training and certification for
lawyers defending indigent clients and sets caseload limits for public
defender offices, the following important issues remain:
1.

The General Assembly should fund indigent defense services in
cases requiring appointment of counsel at a level that ensures that
all indigent defendants receive effective and meaningful
representation.

The Indigent Defense Commission should adopt performance and
qualification standards for both private, assigned counsel and
public defenders. The standards should address workload limits,
training requirements, professional independence and other areas
to ensure effective and meaningful representation.

The Indigent Defense Commission should implement a
comprehensive data collection system to provide an accurate
picture of the provision of indigent criminal services in Virginia.

VI.

Scientific Evidence

Introduction

Physical evidence often can show a strong link between a suspect and the
crime he is charged with committing. Usually, a scientific expert explains
the significance of the physical evidence at trial to the judge or jury by
describing whether and how it matches samples obtained from the suspect.
This forensic expert frequently then offers an opinion about the likelihood
that someone other than the defendant is the source of the physical
evidence.
Before DNA evidence became widely used in criminal cases to identify or
exclude suspects, other, less precise techniques often were employed to link
defendants to crimes. Crime laboratory scientists used hair comparison
analysis, blood-typing serology methods, and other techniques to examine
physical evidence.

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Thorough national examinations of the wrongful conviction of innocent
people have demonstrated that, all too often, forensic evidence supposedly
linking the defendants to the crimes was wrong.137 Sometimes, the
scientific evidence used in the cases was questionable or unreliable.138
Other times, experts offered opinions slanted in favor of the prosecution
that were unsupported by generally recognized scientific principles, were
misstated, or even fabricated.139

In at least six of the
eleven cases
studied by the
ICVA, forensic
evidence
purportedly linking
exonerees to the
crimes played a
factor in their
convictions.

But often, the scientific evidence was simply non-specific, meaning that it
placed the innocent defendants into a broader group within the population
that could have provided the same physical evidence.140 When added to
other evidence in these cases, the scientific evidence was enough to convict
the wrong people. Finally, in some of the cases, evidence was not properly
preserved, creating significant barriers to later DNA testing that proved
innocence.
The ICVA's investigation into wrongful convictions in Virginia is
consistent with the findings in other jurisdictions in which non-specific,
faulty, or misused scientific evidence played a role in the conviction of
innocent people. In at least six of the eleven cases studied by the ICVA,
forensic evidence purportedly linking exonerees to the crimes played a
factor in their convictions. In at least four of the cases, the police or crime
labs destroyed physical evidence samples that would have proven the
inmates did not commit these crimes and, in one case, the samples were too
degraded to be subjected to DNA testing only five years after the crime.
The ICVA's research has identified a number of reforms that can help
remedy these problems in the future and that will help ensure that evidence
needed to prove the innocence of others will be remain available.
B.

Virginia Law and Practice Related to Scientific Evidence

1. Access to Defense Experts
When prosecutors seek to use expert testimony about scientific evidence
against a criminal defendant, it is vital that the defense have the opportunity
to challenge or rebut the findings and conclusions of the government's
experts. The ABA Standards for Criminal Justice state that the availability
of necessary expert services is essential to effective representation in many
cases.141 More importantly, the United States Supreme Court has long
contemplated separate defense experts, along with the opportunity to crossexamine government experts, as necessary to protect constitutional rights.142

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In Virginia, however, the courts rarely authorize independent defense
experts in indigent criminal cases.143 Apparently, many court-appointed
lawyers and public defenders do not even bother to request court permission
to retain defense experts because their experience shows the courts will
likely not grant approval.144 Thus, in Virginia, it appears that criminal
defendants must rely upon court rulings concerning the admissibility of
scientific evidence and the cross examination by defense lawyers when
challenging scientific evidence.
2. Admissibility of Scientific Evidence
For much of the twentieth century, the predominant test used by federal
courts to govern the admissibility of scientific evidence in the United States
– known as the Frye rule – required scientific testimony to have gained
general acceptance in the relevant scientific community before it could be
admitted in court.145 However, in 1993, the United States Supreme Court
announced a new rule governing the admissibility of scientific evidence in
the federal courts. The more flexible Daubert rule, as it has come to be
known, requires the trial judge to consider, in a gate-keeping role, a variety
of factors in determining whether expert scientific testimony rests on a
reliable foundation and is relevant to the issue in the case.146 Since the
U.S. Supreme Court created this rule, over half the states have adopted the
Daubert standard.
The Virginia courts have never adopted either the Frye or Daubert
standards to govern the admissibility of scientific testimony or evidence.147
Instead, when scientific evidence is offered in Virginia, the trial judge must
make:
a threshold finding of fact with respect to the reliability of the scientific
method offered, unless it is of a kind so familiar and accepted as to require
no foundation to establish the fundamental reliability of the system, such
as fingerprint analysis, or unless it is so unreliable that the considerations
requiring its exclusion have ripened into rules of law, such as "lie
detector" tests, or unless its admission is regulated by statute, such as
blood-alcohol test results.148

Many courtappointed lawyers
and public
defenders
apparently do not
even bother to
request court
permission to
retain defense
experts because
their experience
shows the courts
will likely not grant
approval.

Virginia trial courts rely on expert testimony in making the threshold
finding of fact, and, if supported by credible evidence, trial judges' rulings
will not be disturbed on appeal. Even where the reliability of scientific
evidence is disputed, the trial judge can admit the disputed evidence with a
cautionary instruction to the jury if the court finds that there is a sufficient
foundation for the evidence to warrant its admission.149

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Preservation of Evidence in Virginia

Prior to 2001, no Virginia statute governed the preservation of biological
evidence. However, Virginia law now requires that the Commonwealth
retain biological evidence in capital murder cases until the execution of the
defendant and in felonies upon petition by an inmate for at least fifteen
years.150 In some jurisdictions in Virginia, the Circuit Court clerks are
beginning to retain forensic evidence in all felony cases whether court
ordered or not.151
C.

Questionable Scientific Evidence

In recent years, some traditional forensic techniques have come under
scrutiny, in part due to DNA exonerations that proved the evidence did not
actually link the defendants to their supposed crimes. One example is the
microscopic analysis of hair samples found at crime scenes and the
comparison of the samples to known samples taken from suspects.
Although hair comparison evidence has been admitted against criminal
defendants for decades and the overwhelming majority of courts have found
that it meets both the Frye and Daubert standards, recent studies raise
serious questions about the reliability of hair comparison testing, questions
that are only heightened given the numerous cases of wrongful conviction
that included erroneous hair comparisons.152
For example, the Law Enforcement Assistance Administration Laboratory
Proficiency Testing Program, involving over 235 crime laboratories
throughout the United States, found hair comparison analysis to be the
weakest of all forensic laboratory techniques tested, with error rates as high
as sixty-seven percent on individual samples and the majority of
laboratories reaching incorrect results on four out of five hair samples
analyzed.153 Another study found that hair comparison error rates dropped
from thirty to four percent when common hair comparison methods – which
compare a questioned hair to the hair samples of a suspect – were changed
to a "lineup" method, in which examiners compare a hair sample from the
crime scene to samples from five potential suspects.154 Just as in
eyewitness identification, errors and unconscious bias exist in the
identification of hair samples.
Traditional serology testing, while not suffering from the reliability
problems associated with hair comparison analysis, has contributed to the
wrongful conviction of innocent people.155 Although serology testing does
not specifically identify suspects, it often substantially narrows the field of

A VISION FOR JUSTICE

possibilities to include the suspect when his or her blood or other bodily
fluids match the characteristics of those found at the crime scene.156 As an
expert explains:
There is no question that the impact of statistical calculations on the
probability of an innocent match in blood analysis has a great impact on
the jury. If a serologist testifies that the blood sample taken from a
defendant's clothing matches that of the victim's blood, and that the
probability of these same characteristics occurring in the blood of human
beings is only one in 20,000, then, in the mind of the fact finder, identity
has been established with as much definitiveness as science can muster.
Surely, considering that viable suspects of the crime must often be limited
to a smaller population group than the statistics allow for, the reasonable
juror may be led to believe there is no possibility of error. Yet, exactly the
opposite seems to be coming to light in the retesting, by DNA analysis, of
the evidence in cases where persons had been previously convicted on
eyewitness testimony or on traditional serology testimony. What may be
gathered from the mounting evidence is that the statistical inferences
drawn from serological "identifications" of the defendant as the
perpetrator appear to have been accepted as proof of a uniqueness that is
simply not warranted.157

Scientific Evidence Issues in the Cases of Virginia Exonerees

Earl Washington

Questions over scientific evidence in Earl Washington’s case concern postconviction testing that was initially ordered by Governor Douglas Wilder in
anticipation of Washington’s scheduled execution date. DNA tests
excluded Washington as the source of the semen stain on a blue blanket
recovered from the victim's apartment. But the lab analyst who conducted
the DNA tests said that he could not eliminate Washington as a potential
source of semen from a separate vaginal swab from the victim. Based on
these results, Governor Wilder commuted Washington's sentence to life in
prison in January 1994, nine days before his scheduled execution, saying
the test results raised a "substantial question" about Washington's guilt.
Governor Wilder did not pardon Washington altogether because the
Governor said that the DNA tests did not erase all doubt about
Washington's involvement in the crime.
Six years later, Governor James Gilmore ordered another series of even
more sophisticated DNA tests on the evidence. The tests were performed
by Jeffrey Ban, a top DNA expert in the Virginia lab, a member of a panel
of scientists that set national DNA standards, and the same crime lab expert
who conducted the testing ordered by Governor Wilder. The tests revealed

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a genetic profile on the blue blanket that did not belong to Washington but
that matched the genetic profile of Kenneth Tinsley, a convicted rapist
whose DNA profile was contained in Virginia's DNA database.
The remaining DNA tests ordered by Governor Gilmore produced results
that raised questions about the Virginia crime lab's analysis in the
Washington case. As the Chicago Tribune explained in a recent series
called “Forensic Science Under the Microscope”:
[Jeffrey] Ban further reported that he was unable to obtain a genetic
profile from a slide made from the vaginal swab--although at
Washington's trial, a medical examiner had testified there was an
abundance of sperm on the slide. Even more puzzling were the results of
his tests on a second, similar slide. Not only did Ban exclude Washington,
but he excluded Tinsley and, according to his report, turned up two
additional unidentified genetic profiles.
The exclusion of Washington was enough for Gilmore to grant him a
pardon--just as Ban's earlier test was enough to prompt Wilder to
commute his death sentence. After 17 years in prison, more than nine of
them on Death Row, he was set free. That did not settle the matter,
though. Tinsley's DNA was detected by the lab on the blanket. But
because Ban said he did not find it on the slides, authorities did not
prosecute Tinsley, leaving the case open. The test results prompted some
police officers to continue saying they believed Washington was involved.
Duplicate slides were sent to Dr. Ed Blake, a DNA expert, who was
working for Washington's attorneys. His tests isolated only Tinsley's
genetic profile, he said, and conclusively eliminated Washington. . . .
Three other DNA experts, at the request of a Virginia newspaper,
reviewed Ban's reports. They all agreed that his work was troubling and
warranted further scrutiny. . . .
In an interview with the Tribune, [Dr. Paul Ferrara, the Director of the
Virginia Division of Forensic Science] said it is possible for two scientists
to come up with different test results because no two samples are alike-although Ban and Blake tested slides created from the same swab. "As far
as we're concerned, there is no error at all except in the minds of
[critics]...," Ferrara said. 158

In the wake of controversy concerning the Washington case, Governor
Mark Warner recently ordered an independent audit of the crime lab’s
operation and findings in the Washington matter. Said a spokesman for
Warner, “The governor believes that an outside investigation will help
maintain the lab's reputation . . . and help maintain confidence in our
criminal justice system." 159

A VISION FOR JUSTICE

Edward Honaker

As noted earlier, the laboratory technician in Edward Honaker's case
significantly overstated the significance of the hair comparison he
performed and consequently misled the jury. Based on his comparison of
hairs found on the victim's shorts to Honaker's hair samples and his claim
that they matched, the technician testified that in his opinion it "is unlikely
that the hair would match anyone other than the defendant; but it is
possible." When DNA evidence later proved that Honaker was not the
rapist, the Director of the Virginia Division of Forensic Science provided an
affidavit debunking the technician's false testimony. Moreover, when one
of the world's leading experts on hair comparison later reexamined the hair
analysis, he concluded that in his opinion, the hairs were not comparable.160
Honaker's lawyer did not retain an expert to refute the Commonwealth's
expert's opinion.
Other evidence in Honaker's case could have strongly suggested his
innocence, had proper forensic testing been done. The police found
cigarette butts at the location where the rape had occurred, and the victim
told police that the rapist smoked cigarettes during the assault. Saliva
samples found on the cigarette butts seized by the police revealed that the
person who smoked the cigarette had blood type O, whereas Honaker had
blood type B. However, the same laboratory technician who
misrepresented the hair analysis failed to determine if the victim, who also
had blood type O, was a secretor and could possibly have left her saliva on
the cigarette butts.161
3.

David Vasquez

When DNA
evidence eventually
proved that
Edward Honaker
was not the rapist,
the Director of the
Virginia Division of
Forensic Science
provided an
affidavit debunking
the technician's
previously false
testimony.

The laboratory technician in David Vasquez's case concluded that pubic
hair samples taken from Vasquez shared characteristics and were consistent
with hair recovered from the victim's body. His lawyers found the expert's
opinion convincing, or at least felt that a jury would, and did not retain an
independent expert to review and potentially refute these findings despite
other evidence in the case that suggested strongly that Vasquez was not
involved. Vasquez's blood type did not match the blood type of the semen
found in the victim or on her bathrobe. Moreover, none of the shoe
impressions found outside of the broken basement window where the
murderer entered the home matched any of Vasquez's shoes that were
seized by the police.

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Jeffrey Cox

In Jeffrey Cox's case, the police and prosecutors never turned over to the
defense potentially helpful hair analysis. The laboratory technician reported
finding two "very fine white Caucasian hairs" among the trace evidence
collected from the victim's body that were not "suitable for comparison with
a known sample." While not conclusively establishing Cox's innocence, the
hairs were inconsistent with the Commonwealth’s case because Cox had
brown hair, not white hair.
5.

Craig Bell

In Craig Bell's case, the jury convicted Bell despite significant forensic
evidence suggesting that he did not commit the crime. A laboratory
technician testified that three hairs recovered from shorts left at the scene by
the murderer matched neither Bell's pubic hair samples nor those of the
victim. Semen stains on those shorts produced inconclusive results, neither
implicating nor exonerating Bell. A partial palm print lifted from the
window ledge where investigators found a screen knocked out – which later
proved to be the real murderer's point of entry – did not match Bell, the
victim, or any family members known to visit the couple. However, blood
evidence could not exclude Bell as a suspect without the use of DNA
technology. Type O blood belonging to the murderer was found at the
crime scene, and a serologist testified at trial that thirty-six percent of the
population has type O blood, as does Bell. Because this evidence was noncontroversial, Bell's lawyers did not retain an independent expert to review
the government expert's analysis. Bell’s lawyers instead focused their
resources on retaining a private investigator and consulting with a leading
forensic expert to opine on the blood splatter left in the apartment.
6.

Troy Webb

The serology evidence in Troy Webb's case was more complicated, but
nevertheless the Commonwealth's expert identified Webb as a possible
source of the semen from the rapist. Testing showed that Webb was a nonsecretor. The swabs from the victim's PERK kit showed blood type A. The
victim's boyfriend happened to have blood type A as well, and the
technician testified that semen from recent intercourse with the boyfriend
could have masked the blood type from the semen of a non-secretor like
Troy Webb. While not conclusively identifying Webb as the rapist, the
expert testified that Webb could not be ruled out as the perpetrator but

A VISION FOR JUSTICE

Webb's lawyers did not present a defense expert to analyze or refute the
Commonwealth expert's work. Post-conviction DNA testing later proved
that Webb did not commit the rape.
In four of the cases studied by the ICVA, the police destroyed critical
biological evidence that would have – or in one case could have – proven
the exonerees' innocence. Despite the fact that witnesses saw two
kidnappers abduct the victim in Jeffrey Cox's case, the police inexplicably
destroyed physical evidence three months after his conviction – before his
appeal had even been heard and even though the second perpetrator had
neither been identified nor arrested. The physical evidence destroyed by the
police in the Cox case included the PERK kit recovered from the victim,
which contained hairs foreign to the victim, swabs positive for saliva from
her breasts, and fingernail scrapings.
In three of the cases – Marvin Anderson, Julius Ruffin, and Arthur Lee
Whitfield – the Commonwealth's crime laboratory returned the swabs and
samples from the rape or PERK kits to the police departments after testing
the samples, and the police destroyed the kits once the exonerees were
convicted. All three were later exonerated by DNA evidence only because
Mary Jane Burton, the technician who performed the testing in their cases,
fortuitously ignored the then Division of Forensic Science policy by taping
slides containing portions of the samples she tested to her personal files
which she retained in each case.
E.
1.

Recommendations for Reform in Virginia for Scientific Evidence
The Virginia General Assembly should require that all biological
evidence in serious felony cases be preserved to ensure it is
available for post-conviction DNA testing.

In four of the cases
studied by the
ICVA, the police
destroyed critical
biological evidence
that would have –
or in one case could
have – proven the
exonerees'
innocence.

The Marvin Anderson, Julius Ruffin, and Arthur Lee Whitfield cases all
illustrate how vital it is to preserve biological evidence that could be
subjected to DNA testing and that could prove dispositive in establishing an
inmate's innocence as long as an inmate is incarcerated. Indeed, in
Whitfield’s case it took more than three years after the General Assembly
provided a statutory vehicle for testing biological evidence – and nearly
twenty-two years after Whitfield was convicted – before authorities found
the evidence that exonerated him.
As his and other cases identified by the ICVA show, it is crucial to develop
a protocol for cataloguing and preserving genetic evidence in crimes of this

INNOCENCE COMMISSION FOR VIRGINIA

nature. To do so, the General Assembly should amend current law to
require the preservation in all serious felony cases of human biological
evidence that could be subjected to DNA testing.
2.

The Commonwealth should continue and expand its latest
initiative to examine and test biological evidence from old cases
using DNA.

Virginia Governor Mark R. Warner has recently ordered DNA testing in
about forty old criminal cases from the 1970s and 1980s in which standard
serology testing was used. These cases were culled from a review of
approximately ten percent of the cases on file in state archives.162 The
ICVA urges that authorities continue to review the remaining files in state
archives and expand the testing to include all cases of inmates where
biological evidence could lead to an exoneration. Mary Jane Burton’s old
files alone may hold the key to exoneration for many other wrongfully
incarcerated inmates, and the ICVA urges that authorities devote particular
attention to the review of these records.
3.

The Virginia General Assembly and the courts should provide
sufficient resources so that indigent criminal defendants can
obtain the services of expert witnesses to evaluate the scientific
evidence offered against them and to testify, where appropriate, at
trial on behalf of defendants.

When highly complex scientific evidence is offered by the prosecution
against an accused, the defense must have the ability to both challenge the
admissibility of that evidence and confront and counter the significance of
that evidence before the trier of fact. In many cases, these efforts require
the defense to rely upon an independent expert for assistance. However, as
stated earlier, the overwhelming majority of indigent defendants in Virginia
are unable to access the services of an expert.
The ICVA's investigation shows that in a number of exonerations in
Virginia, the defense either did not seek to retain or did not gain approval
from the courts for the appointment of independent defense experts that
could have rebutted misleading government expert testimony or could have
challenged or clarified questionable scientific evidence. For these reasons,
the ICVA recommends that the Virginia General Assembly provide
sufficient resources to public defenders and court-appointed counsel for
indigent defendants so that necessary defense experts can be retained in

A VISION FOR JUSTICE

appropriate cases. The ICVA also urges the Virginia courts to approve the
appointment of independent expert witnesses when appropriate requests are
made by counsel for indigent defendants.
4.

The Virginia Supreme Court should adopt more stringent rules
governing the admissibility of scientific evidence in criminal cases.

The Virginia Supreme Court has never adopted either the Frye or the
Daubert standards for evaluating scientific evidence. While the current
standard requires Virginia courts to make a threshold finding of the
reliability of scientific evidence, the Virginia Supreme Court has placed
great discretion in the trial courts to admit scientific evidence even when the
reliability of that evidence has been called into question. Significantly, the
Commonwealth’s highest court has said that trial court rulings will rarely be
overturned on appeal.
The ICVA's investigation shows that non-specific scientific evidence,
purportedly linking a person to a crime scene by placing the suspect in a
group of the population who match the characteristics of crime scene
evidence, often can be mistaken. Moreover, overstated or even false expert
testimony linking a suspect to physical evidence found at the crime scene
can be very damaging and can contribute significantly to wrongful
convictions. When the scientific techniques that are used in criminal cases
themselves are of at least questionable validity, the fairness and accuracy of
the justice system can be negatively affected.
The ICVA recommends that the Virginia Supreme Court revise the current
standard that the Virginia courts use for evaluating and ruling on the
admissibility of expert testimony. The Daubert rule adopted by the United
States Supreme Court outlines a host of factors that trial and appellate
courts should consider in determining the admissibility of scientific
evidence while making none of the factors dispositive. Although the
Daubert rule places significant authority in the trial courts to serve a gatekeeping function for scientific evidence, the rule also contemplates an
important role for the appellate courts in reviewing the decisions of the trial
courts.

When the scientific
techniques that are
used in criminal
cases themselves
are of at least
questionable
validity, the
fairness and
accuracy of the
justice system can
be negatively
affected.

The ICVA recommends that the Court adopt either the Daubert rule or a
similar standard that will ensure the reliability, accuracy, and fairness of any
scientific evidence that is used in criminal cases against defendants.
Finally, the ICVA recommends that the Virginia courts be receptive to
challenges to scientific techniques that have been considered reliable and

INNOCENCE COMMISSION FOR VIRGINIA

admissible in the past, but where new questions have arisen about their
reliability, and apply the same level of scrutiny to novel scientific
techniques as they are developed and offered into evidence.
5.

The ICVA
recognizes the
excellent
reputation of the
Virginia crime
laboratory, which
has been described
as “the gold
standard for crime
labs.” Virginia has
been a leader
among states in
utilizing DNA
testing in criminal
cases.

The Commonwealth should diligently pursue the audit of the
Washington case.

The ICVA recognizes the excellent reputation of the Virginia crime
laboratory, which has been described as “the gold standard for crime
labs.”163 Virginia has been a leader among states in utilizing DNA testing
in criminal cases. Indeed, the issues raised by the disputed findings in the
Earl Washington case pale in comparison with the problems found in other
states and jurisdictions where analysts have fabricated evidence or lied
under oath. On the other hand, the Washington case raises sobering
questions about the quality of testing and analysis done in this matter – as
well as deeper issues about the limits of scientific evidence and DNA
interpretation in general. In the interests of maintaining the crime
laboratory’s fine standards, the ICVA applauds the Governor’s decision to
pursue the Washington audit diligently. The ICVA also commends
Governor Warner’s recent $2.6 million proposal to hire twenty new
scientists for Virginia's forensic lab and to help expand the regional crime
lab in Norfolk.
On December 16, 2004, the State Crime Commission considered a
recommendation to establish an advisory board of scientists that would
review testing procedures and establish an audit process to be used when
errors occur. If such a measure were approved by the General Assembly,
Virginia would become only the second state crime lab in the country,
along with New York's, to have a scientific review panel. The Virginia
Division of Forensic Science was the first state crime lab to provide DNA
testing in 1989 and is considered a national leader in the field.
The ICVA urges the Commonwealth to carefully consider the findings of
the outside evaluation, as well as the recommendations of the State Crime
Commission, and, if appropriate, to implement any recommended changes
or reforms.

A VISION FOR JUSTICE

VII. Post-Conviction Remedies
A.

Introduction

As an ABA Committee on Innocence and the Integrity of the Criminal
Justice System has explained, “it is unlikely that any refinements in the
police and prosecutor practices, improved rules at trial, or better defense
representation will ever completely eliminate convictions of all who are
factually innocent.” 164 Yet, since we know that wrongful convictions can
and do occur in Virginia, and that the cost of wrongful convictions – to
society, to victims, and to the wrongfully convicted – is high, it is essential
that the Commonwealth have in place adequate post-conviction remedies to
ensure that errors can be corrected.
Crafting post-conviction remedies requires a careful balance between the
prisoner’s strong interest in access to a forum to test the fundamental
correctness of his conviction and the Commonwealth’s interest in the
finality of its criminal justice proceedings. As the Supreme Court stated in
Kuhlmann v. Wilson,165 “[e]ven where, as here, the many judges who have
reviewed the prisoner's claims . . . have determined that his trial was free
from constitutional error, a prisoner retains a powerful and legitimate
interest in obtaining his release from custody if he is innocent of the charge
for which he was incarcerated.” However, the prisoner’s interest in access
to a forum to test the fundamental correctness of his conviction must be
balanced against the Commonwealth’s interest in the finality of its criminal
justice proceedings. Availability of unlimited appeals would frustrate the
Commonwealth’s legitimate law enforcement interests, as the Supreme
Court has explained:
[T]he deterrent force of penal laws is diminished to the extent that persons
contemplating criminal activity believe there is a possibility that they will
escape punishment through repetitive collateral attacks. Similarly, finality
serves the State's goal of rehabilitating those who commit crimes because
"[r]ehabilitation demands that the convicted defendant realize that 'he is
justly subject to sanction, that he stands in need of rehabilitation.'"
Finality also serves the State's legitimate punitive interests. When a
prisoner is freed on a successive petition, often many years after his crime,
the State may be unable successfully to retry him. This result is
unacceptable if the State must forgo conviction of a guilty defendant
through the "erosion of memory" and "dispersion of witnesses" that occur
with the passage of time that invariably attends collateral attack.166

INNOCENCE COMMISSION FOR VIRGINIA

Over the past two years, Virginia has taken important steps towards
establishing post-conviction remedies that fairly balance the innocent
prisoner’s interests with those of society. However, the ICVA respectfully
submits that Virginia can and should take additional steps to expand the
availability of post-conviction remedies to certain categories of prisoners
who, under current law, have no access to the courts to litigate postconviction claims of innocence. Specifically, the ICVA makes the
following recommendations:

Over the past two
years, Virginia has
made tremendous
progress in terms
of expanding the
scope of judicial
remedies to the
wrongfully
convicted.
However, even the
newly enacted
remedies would not
have been available
to most of the
exonerees whose
cases were
examined by the
ICVA.

The writ of innocence should be available to prisoners who entered
a plea other than not guilty.

The writ of innocence should be available to prisoners whose
evidence of innocence was not presented at trial due to ineffective
assistance of counsel.

Absolute limits on the number of petitions that a prisoner can file
are not appropriate.

These recommendations are consistent with HB 1805, which was
introduced in the Virginia General Assembly on January 5, 2005, by Robert
G. Marshall (R-District 13).
B.

Post-Conviction Remedies in Virginia

In Virginia, a conviction may be collaterally attacked in the courts by filing
a petition for a writ of habeas corpus, a motion for a new trial, or a petition
for a writ of innocence. However, due to the numerous substantive and
procedural limitations on the availability of these remedies, judicial findings
of actual innocence are extremely rare. Nine of the eleven Virginia
exonerees whose cases the ICVA reviewed were freed as a result of
intervention by Virginia governors or the Parole Board, not the Virginia
courts. Twice the courts have vacated convictions on grounds of actual
innocence, but those proceedings were not contested. In fact, none of the
exonerations that the ICVA studied resulted from contested proceedings in
the Virginia courts.
Over the past two years, Virginia has made tremendous progress in terms of
expanding the scope of judicial remedies to the wrongfully convicted.
However, even the newly enacted remedies would not have been available
to most of the exonerees whose cases were examined by the ICVA. Thus,
even today, those who are wrongfully convicted in Virginia remain largely

A VISION FOR JUSTICE

dependent upon the good graces of the very prosecutors who put them in
jail, or upon the Governor or the Parole Board, to secure their release.
Relief from the Parole Board is increasingly rare because Virginia abolished
parole in 1994; therefore, parole is not available to prisoners who were
wrongfully convicted after that date. Additional work should be done to
create judicial remedies for the wrongfully convicted in Virginia, and to
remove these cases from uncertainty of the political process.
1.

Petition for a Writ of Habeas Corpus

Under Virginia law, any prisoner may file a petition for a writ of habeas
corpus to challenge the legality of his conviction. The court must grant the
petition if the prisoner can show that he is being detained without lawful
authority.167 However, the Virginia Supreme Court has made clear that, “an
assertion of actual innocence is outside the scope of habeas corpus review,
which concerns only the legality of the petitioner’s detention.” 168
In order to secure a writ of habeas corpus, the prisoner must show that
constitutional or other legal error occurred at trial. However, we know that,
through honest human mistake, error-free trials can still result in wrongful
convictions. For example, Julius Ruffin was released 21 years after his
original arrest, the Governor having issued Ruffin a pardon in March 2003.
The victim has written Ruffin expressing her “sorrow and devastation” at
his conviction, but in issuing a pardon, Governor Warner said, “I find no
fault with the verdict of the jury based upon the evidence available to it at
the time of trial, nor with the actions of the attorneys for the
Commonwealth or the court at trial.” 169
Five of the exonerees whose cases were examined by the ICVA filed
petitions for writs of habeas corpus with the Virginia courts; however, only
one succeeded in obtaining release through that mechanism. Even in the
one case where a petition for a writ of habeas corpus was granted, the
prisoner, Jeffrey Cox, was only released after the Commonwealth’s
Attorney consented to an order vacating the original conviction. Because
Virginia’s habeas corpus process is focused upon the existence of legal
error and not upon actual innocence, and is subject to strict procedural rules
such as the one-year statute of limitations, it has not been an effective tool
in securing the release of wrongfully convicted prisoners in the
Commonwealth.

INNOCENCE COMMISSION FOR VIRGINIA

Motion for a New Trial

Under Virginia Supreme Court Rule 1:1, a prisoner may file a motion for a
new trial based upon newly discovered evidence. However, the motion
must be filed not later than 21 days after the date of the order of conviction.
After 21 days, the trial court loses jurisdiction, and has no authority to act
on a prisoner’s motion.170

All of the
exonerations that
were examined by
the ICVA
proceeded on the
basis of evidence
that became
available
significantly more
than 21 days after
the date of the
original conviction.

All of the exonerations that were examined by the ICVA proceeded on the
basis of evidence that became available significantly more than 21 days
after the date of the original conviction. In the case of Russell Gray,
another man confessed more than 21 days after the original conviction,
meaning that a motion for a new trial could not be filed. Similarly, many of
the cases relied upon DNA testing techniques that did not become available
until many years after the convictions were handed down.
A November 19, 2003 report of the “21 Day Rule Task Force” of the
Virginia Crime Commission concluded that Virginia’s 21-day rule was the
most restrictive such rule in the nation. While most states initially appeared
to have a finite time limit in which to present newly discovered evidence,
the Virginia Crime Commission concluded that court rules, case law, and
other rules of procedure frequently provided exceptions. Based on
conversations with Assistant Attorneys General in all 50 states and legal
analysis of statutes and rules, the Virginia Crime Commission concluded
that 38 states had no time limit, one state had a three-year time limit, seven
states had a two-year time limit, and four states had time limits of one year
or less. No state had a limit as restrictive as Virginia’s.
3.

Petition for a Writ of Actual Innocence

Virginia has recently taken important steps to address the harsh results that
can be produced by strict application of the 21-day rule. In 2002, the
Commonwealth created a new judicial remedy - the "Writ of Actual
Innocence" - for prisoners who could meet the following strict
requirements:
1. The conviction was upon a plea of not guilty, or the person was
convicted of (a) a Class 1 felony, (b) a Class 2 felony, (c) or any
felony for which the maximum penalty is life imprisonment;
2. The prisoner is actually innocent, and no rational trier of fact
could find proof of guilt beyond a reasonable doubt;

A VISION FOR JUSTICE

3. The prisoner's innocence is supported by human biological
evidence;
4. The human biological evidence that supports the prisoner's claim
of innocence was not known or available to the prisoner or his
trial attorney of record at the time the conviction became final in
the Circuit Court or, if known, the reason that the evidence was
not subject to the scientific testing is set forth in the petition; and
5. The petition is filed within 60 days of obtaining the results of the
tests on the human biological evidence.171
In 2004, the Commonwealth acted to expand availability of the Writ to
prisoners who lack human biological evidence to support their claims, but
nevertheless can meet the following requirements:
1. The conviction was upon a plea of not guilty;
2. The prisoner is actually innocent, and no rational trier of fact
could find proof of guilt beyond a reasonable doubt; and
3. The evidence that supports the prisoner's claim of innocence was
not known or available to the prisoner or his trial attorney of
record at the time the conviction became final in the Circuit
Court, and the evidence could not, by the exercise of due
diligence, have been discovered or obtained before expiration of
the 21-day rule.172
These legislative developments are to be commended. However, it is
important to recognize that even with the new laws, some wrongfully
convicted prisoners will remain ineligible. For these individuals, clemency,
with its attendant political pressures, will remain the only available option.
The ICVA therefore recommends that the General Assembly continue on
the salutary path it has begun and expand the availability of the writ of
innocence to ensure that all individuals with compelling claims of
innocence can have their claims considered by a court.
The cases the ICVA studied provide the clearest examples of why this
expansion is necessary. For example, although the Writ had not yet been
established at the time David Vasquez was exonerated, he would not have
been eligible for relief under it because he entered a plea of guilty to avoid a

INNOCENCE COMMISSION FOR VIRGINIA

possible death sentence, and his claim of innocence was not based upon
human biological evidence. Conversely, the writ of innocence had been
established at the time Marvin Anderson was exonerated; however, he was
not able to apply for relief pursuant to its provisions because he was on
parole, and not incarcerated, at the time human biological evidence of his
innocence became available. Craig Bell could not have demonstrated that
the human biological evidence that supported his claim of innocence was
not known or available to the prisoner or his trial attorney of record at the
time his conviction became final in the Circuit Court.

In at least four of
the eleven
exonerations that
the ICVA studied,
the new Writ of
innocence laws,
while certainly a
step in the right
direction, either
would not have
applied, or might
have been
construed by a
court to deny any
possibility of relief.

Fingerprints, hair, and clothing found at the scene were tested prior to Bell's
trial and they did not implicate him in the crime, but he was convicted
anyway. Only when those pieces of evidence were later linked to the true
perpetrator who confessed to the crime was Bell exculpated. Jeffrey Cox
also would have had difficulty proving that his "newly discovered"
evidence of innocence - including evidence that prosecution witnesses lied
about their criminal records and that prosecution witnesses made prior
statements inconsistent with their trial testimony - was not available to him
or his trial attorney of record at the time the conviction became final in the
Circuit Court, and that the evidence could not, by the exercise of due
diligence, have been discovered or obtained before the conviction became
final. In short, in at least four of the eleven exonerations that the ICVA
studied, the new laws, while certainly a step in the right direction, either
would not have applied, or might have been construed by a court to deny
any possibility of relief.
4.

Clemency 173

Article V, Section 12 of the Virginia Constitution gives the Governor the
power to grant reprieves and pardons.174 The constitutional power of the
governor to grant pardons and reprieves or to commute capital punishment
also is authorized by statute.175 A pardon is defined as a remission of guilt
and reaches both the punishment prescribed for the offense and the guilt of
the offender. When the pardon is full, it relieves the punishment and blots
out the guilt, so that in the eyes of the law the offender is as innocent as if
he had never been convicted.
Clemency has many purposes: to ensure that justice is administered with
mercy, to correct errors, and to allow the governor to assess the situation
anew outside the rigid confines of the judicial decision-making process. A
governor can look to the overall fairness of the situation and is not
constrained by rules of procedure or evidence. He can make decisions
based on factors beyond the law.

100

A VISION FOR JUSTICE

Clemency is a matter of the grace and discretion of the executive granting
it. The Governor of Virginia is not required to review or accept for
submission any clemency petition, even if the applicant presents compelling
evidence of actual innocence.176 If a petition for clemency is denied, there is
no right of appeal. The governor’s discretion for clemency decisions is
high and usually unquestioned.177
Courts have stated that clemency proceedings are not an integral part of
adjudicating the guilt or innocence of an accused.178 Nevertheless, until
recently, clemency was considered the only forum to pursue claims of
actual innocence based on newly discovered evidence in Virginia.179 It
remains the only forum for some defendants who pled guilty to crimes that
they did not commit, and to defendants whose evidence of actual innocence
was not presented at trial due to ineffective assistance of counsel. Eight of
the eleven exonerees whose claims were examined by the ICVA obtained
relief through the clemency process, and not through the courts.
The ICVA’s view is that clemency is an imperfect tool for addressing
claims of actual innocence, largely because of its discretionary nature and
because it is perceived as presenting political risks to incumbent governors.
Moreover, the clemency process is neither an evidentiary nor an adversarial
proceeding. An inmate seeking clemency is not entitled to a hearing before
the governor or the governor's designee. While an inmate is permitted to
submit a clemency petition and supporting documentation to the governor,
the ICVA believes that the clemency process is not well-suited to resolve
contested claims of factual innocence. These claims typically involve
credibility determinations that often cannot be decided on paper but instead
require a hearing. These hearings are exactly the types of proceedings over
which the courts are best suited to preside.
C.

Clemency is an
imperfect tool for
addressing claims
of actual
innocence, largely
because of its
discretionary
nature and because
it is perceived as
presenting political
risks to incumbent
governors.

Research on Post-Conviction Remedies in Other Jurisdictions

Unlike Virginia, most jurisdictions rely primarily upon courts, and not upon
clemency procedures, to provide a remedy in cases involving wrongful
convictions. The ICVA reviewed information concerning 102 DNA
exonerations nationwide that occurred between 1989 and 2004. Judicial
remedies were provided in 90 cases (or approximately 88 percent of the
time), and discretionary remedies (clemency, pardon, or parole) were
provided in 12 cases (or approximately 12 percent of the time). Of the 12
cases in which discretionary procedures were used, seven cases (or
approximately 58 percent) were from a single state - Virginia. These data

INNOCENCE COMMISSION FOR VIRGINIA

101

are consistent with a conclusion that most jurisdictions rely upon judicial
remedies, rather than discretionary remedies, in cases involving wrongful
convictions.

A majority of the
states provide a
mechanism for
relief in the courts
for prisoners who
entered pleas of
guilty. Only three
states limit the
availability of postconviction
remedies to such
prisoners.

The ICVA also investigated the extent to which post-conviction remedies in
other jurisdictions are made available to prisoners who entered pleas of
guilty. In May 2003, the Virginia State Crime Commission conducted a 50
state analysis of post-conviction relief mechanisms. The ICVA started with
the Virginia State Crime Commission’s list of the post-conviction relief
mechanisms in each jurisdiction, and conducted an independent review of
those mechanisms to determine whether they were available to prisoners
who entered pleas of guilty. The results of this research are summarized
and available on-line at the ICVA’s website, http://www.icva.us. The
research shows that a majority of the states provide a mechanism for relief
in the courts for prisoners who entered pleas of guilty. Only three states
limit the availability of post-conviction remedies to such prisoners.
Finally, the ICVA investigated the extent to which prisoners are permitted
to file multiple petitions for post-conviction relief. Again starting with the
Virginia State Crime Commission’s list of the post-conviction relief
mechanisms in each jurisdiction, the ICVA conducted an independent
review of those mechanisms to determine whether prisoners are permitted
to file multiple petitions for post-conviction relief. The results of this

research are summarized and are also available on-line. The research shows
that most states do not limit the number of petitions for post-conviction
relief that a prisoner can file. Only five states limit the number of petitions.
D.

Recommendations for Reform in Virginia Regarding PostConviction Remedies

The ICVA recommends that Virginia continue its present course and, as
described below, further expand the available judicial remedies to the
wrongfully convicted. This will ensure that innocent individuals will be
able to prove their innocence, and equally as important, will alert the
authorities that the true perpetrator may still be at large, allowing them to
reopen their investigation.
1.

102

A VISION FOR JUSTICE

The Virginia General Assembly should extend the availability of
the writ of innocence to prisoners who entered a plea other than
not guilty.

Under current Virginia law, the writ of innocence is not available to some
defendants who entered a plea other than not guilty, and who rely upon nonbiological evidence to support their claim of innocence.180 This limitation
presumably proceeds from an assumption that one who is actually innocent
would be unlikely to enter a plea of guilty. But, as demonstrated by the
exonerations studied by the ICVA, and by other research, the facts are
otherwise.
In 2001, the Washington Post ran an in-depth series on the pressures that
can cause innocent men and women to confess to crimes that they did not
commit. The series exposed numerous false confessions in Prince George's
County, Maryland.181 On December 22, 2002, the Miami Herald ran an indepth story uncovering at least thirty-eight false confessions in Broward
County, Florida, over a twelve year period.182 False confessions captured
national headlines again in 2003 when DNA exonerated five teens who
were imprisoned for the notorious 1989 rape of the Central Park jogger in
New York. Nationwide, 33 of the first 123 DNA exonerations - over 25
percent - involved false confessions or admissions of guilt.
False confessions can and do occur in Virginia, as well. Of the cases
investigated by the ICVA, two involved false confessions. David Vasquez
entered a plea of guilty to rape and murder and served five years in prison
but was released in 1989 when the prosecution joined with defense
attorneys to secure a pardon. Earl Washington confessed to a number of
crimes and was convicted and sentenced to death for one of them. DNA
later proved him innocent. He was pardoned and released in 2000. In a
third case, in 1982, Arthur Lee Whitfield pled guilty to a rape that he did
not commit and was sentenced to eighteen years. In 2004, DNA proved his
innocence.
Not all of the men and women who falsely confess enter pleas of guilty.
Nor do all of the men and women who enter pleas of guilty falsely confess.
However, the problems presented by the two situations are very similar.
Faced with seemingly overwhelming odds against them, innocent people
charged with serious crimes may indeed plead guilty out of hopelessness,
fear, or confusion, or as part of a rational decision to avoid more severe
penalties, including the death penalty. These innocent prisoners should be
provided a legal remedy when evidence demonstrating their innocence later
emerges.

Not all of those
who falsely confess
enter pleas of
guilty. Nor do all
who enter pleas of
guilty falsely
confess. With
seemingly
overwhelming odds
against them,
innocent people
charged with
serious crimes may
plead guilty out of
hopelessness, fear,
or confusion, or as
part of a rational
decision to avoid
more severe
penalties, including
the death penalty.

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103

Under current Virginia law, a prisoner who entered a plea of guilty is
nonetheless eligible for a writ of innocence if he (1) can present biological
evidence of innocence, or (2) is sentenced to death or convicted of a Class 1
felony, a Class 2 felony, or any felony for which the maximum term is life
in prison.183 However, prisoners who pled guilty are not eligible for a writ
of innocence if the evidence that demonstrates their innocence is nonbiological. This is true even for a death penalty case.
This distinction between prisoners who rely upon biological and nonbiological evidence presumably proceeds from an assumption that prisoners
who plead guilty should be required to meet a higher burden to support their
claim for a Writ of Innocence, by providing biological evidence. While it
may be appropriate to hold such prisoners to a higher burden of proof, they
should not be required to provide biological evidence. Biological evidence
simply is not available in many cases. Biological evidence is particularly
unlikely to be available in cases involving female defendants. The ICVA
examined 153 DNA exonerations and found that all of them involved male,
and not female, defendants.
Moreover, non-biological evidence can provide compelling proof of
innocence. On April 19, 2004, University of Michigan Professors Gross,
Jacoby, Matheson, Montgomery and Patil released a new report on
exonerations in the United States.184 Their report identifies 328
exonerations during 1989 through 2003. Of those, 145 were based upon
DNA, and 183 were based upon other types of evidence. They reported 18
non-DNA exonerations in 2000, and an average of 22 non-DNA
exonerations per year since 2001. In Virginia, four of the exonerations that
were examined by the ICVA were based upon non-biological evidence.
The ICVA has reviewed the laws of other jurisdictions to determine
whether Virginia’s restriction on the availability of post-conviction
remedies to prisoners who entered pleas of guilty is consistent with national
practice. Our findings show that, a majority of the states provide a
mechanism for relief in the courts for prisoners who entered such pleas.
Only three states limit the availability of post-conviction remedies to
prisoners who pled guilty.
The ICVA urges Virginia to make the writ of innocence available to men
and women who, for any number of reasons, succumb to the enormous
pressure of a criminal prosecution by pleading guilty to crimes that they did

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A VISION FOR JUSTICE

not commit. The writ of innocence should be available to such prisoners
even if the only evidence supporting their claim of innocence is nonbiological, and regardless of the crime for which they were convicted.185
2.

The Virginia General Assembly should extend the availability of
the writ of innocence to prisoners whose evidence of innocence was
not presented at trial due to ineffective assistance of counsel.

Under current law, a writ of innocence is available only if the evidence that
supports the prisoner’s claim “was not known or available to the prisoner or
his trial attorney of record at the time the conviction became final in the
Circuit Court.” 186 In addition, if the prisoner’s claim is based upon non
biological evidence, the prisoner must show that the evidence could not, by
the exercise of due diligence, have been discovered or obtained before
expiration of the 21-day rule.187 Thus, if evidence of actual innocence was
available but was not presented at trial due to the incompetence of trial
counsel, the writ of innocence will not be issued.
As detailed in Part Four, Section (V)(C) of this report, attorney error played
a significant role in five of the eleven cases that the ICVA reviewed. There
does not seem to be any logical reason to deny post conviction relief to
prisoners who are innocent, and, but for attorney error, would never have
been convicted in the first place. Although, theoretically, such individuals
may be eligible for a writ of habeas corpus, based upon violation of their
Sixth Amendment right to the effective assistance of counsel, as a practical
matter, habeas corpus relief may be denied on procedural grounds, such as
a prisoner’s failure to adhere to strict, statutory deadlines. Particularly at
the federal level, complex procedural requirements have made the writ of
habeas corpus increasingly difficult to obtain, especially for prisoners who
attempt to proceed pro se. In several cases reviewed by the ICVA, both
Virginia and federal courts concluded that the attorney’s errors were not
sufficient to mandate a new trial. Yet, the ICVA’s investigation showed
these errors played a significant role in the wrongful conviction of innocent
men.
Therefore, the ICVA recommends that the General Assembly revise
Virginia law to make the writ of innocence available to prisoners whose
evidence of innocence was not presented at trial due to ineffective
assistance of counsel.

INNOCENCE COMMISSION FOR VIRGINIA

105

The Virginia General Assembly should eliminate the limitation on
the number of petitions for a writ of innocence that a prisoner who
relies on non-biological evidence may file.

Prisoners who can present non-biological evidence of innocence may file
only one Petition for a writ of innocence.188 This provision, known as the
“one bite at the apple” rule, was opposed by Governor Mark Warner, whose
office issued the following statement on April 15, 2004:

Virginia’s “one
bite” rule is
extremely
problematic
because the
wrongfully
convicted cannot
control the timing
of the discovery of
“previously
unknown or
unavailable”
evidence that
would support a
writ of innocence.

106

This bill represents an extraordinary, and long overdue, step forward for
the Commonwealth, and I commend the patron and the Crime
Commission for their work. As passed by the General Assembly, the bill
limits a petitioner to one claim of innocence on any conviction. This
provision was not included in the Crime Commission's proposed bill, and I
oppose it. It makes no sense to eliminate one arbitrary deadline on justice
- a 21 day limit - and impose yet another - a limit of one petition per
conviction.

Unfortunately, the House voted to reject the Governor’s recommendation to
strike the “one bite” rule, and the Governor signed the bill as presented on
May 21, 2004.
The ICVA concurs with the Governor’s recommendation and urges
Virginia lawmakers to reconsider the “one bite” limitation. This provision
is not consistent with the Commonwealth’s treatment of prisoners who can
present biological evidence of innocence. Va. Code § 19.2-327.2, relating
to biological evidence of innocence, does not limit the number of petitions
that a prisoner can bring. Moreover, our research shows that most states do
not limit the number of petitions that prisoners can bring under newly
enacted innocence protection laws.189
Virginia’s “one bite” rule is extremely problematic because the wrongfully
convicted cannot control the timing of the discovery of “previously
unknown or unavailable” evidence that would support a writ of innocence.
Thus, it is not unusual for prisoners to file multiple proceedings, as further
evidence of their innocence emerges. Earl Washington, for example,
presented two clemency petitions, one in 1994 and another in 2000, before
he finally won his freedom. Marvin Anderson presented the confession of
the actual perpetrator to a state habeas court in 1988, but he was not
exonerated until 2002, when he was able to tie the actual perpetrator to the
crime through biological evidence, as well. Russell Gray presented
substantial evidence of innocence in a state court proceeding alleging fraud
on the court. However, it was not the court, but the governor, who

A VISION FOR JUSTICE

eventually granted him relief. In each of these cases, it was the
accumulation of evidence, through multiple proceedings and over a number
of years, that eventually produced the desired result.
While it may be reasonable to impose a higher burden of proof on successor
petitions, as is done in federal habeas proceedings, or to limit the number of
petitions that can be brought in a given time period, as is done in Virginia
clemency proceedings, the ICVA believes that absolute limits on the
number of petitions that a prisoner can bring for a writ of innocence are not
appropriate.

INNOCENCE COMMISSION FOR VIRGINIA

107

PART FIVE
CONCLUSION

Every time a crime
occurs and the
justice system
convicts the wrong
person, the truly
guilty person
remains at large,
free to inflict more
damage on the
community.

The costs and consequences of erroneous convictions of innocent people are
enormous, and affect all of society, not just those who are incarcerated for
crimes that they did not commit. The upheaval that occurs when an
innocent person is exonerated, often years or even decades after conviction,
extends to victims and the wrongly convicted alike, as well as to their
families and communities. The conviction of an innocent person has broad
implications for the criminal justice system. Every time a crime occurs and
the justice system convicts the wrong person, the truly guilty person
remains at large, free to inflict more damage on the community. Victims,
who have a right to see their victimizers punished, suffer when the criminal
justice system convicts the innocent, and suffer again if the true perpetrator
is apprehended and the victims must relive the crime through another trial.
The public may come to doubt the competency of justice professionals and
the legitimacy of the justice process. The unnecessary costs of wrongful
incarceration, appeals, and retrials, are a tremendous strain on the public as
well.
And, of course, the innocent individual suffers a devastating loss of
freedom and other civil rights. For the exonerated defendant, release from
prison does not immediately or necessarily begin the process of healing.
Although programs exist to help guilty inmates transition back to society
with housing, counseling, employment and other support, the innocent are
more often simply released back into the community with no help, and
inadequate or no compensation for the wrong inflicted upon them.

For the exonerated
defendant, release
from prison does
not immediately or
necessarily begin
the process of
healing.

108

To avoid these costs and consequences, it is essential that society, policy
makers, and others involved in the criminal justice system, make every
effort to avoid wrongful convictions, and to provide relief where wrongful
convictions occur. At the very least, they should support the
recommendations contained in this report, which will significantly
contribute to the reliability of criminal justice proceedings in Virginia.

A VISION FOR JUSTICE

APPENDIX A
HISTORY AND IMPORTANCE OF INNOCENCE
COMMISSIONS IN OTHER JURISDICTIONS
Innocence commissions constitute an effective and constructive mechanism
to evaluate criminal justice system errors objectively and dispassionately.
They assist all involved to identify weaknesses in the criminal justice
system and to propose reasonable and workable improvements. Most
importantly, they protect society by enhancing the accuracy of criminal
investigations and prosecutions, helping to ensure that actual perpetrators
are expeditiously identified, arrested, and brought to account in the future.
Innocence commissions can also help save precious taxpayer money in the
long run, eliminating the time and funds spent to investigate, prosecute,
incarcerate, and eventually exonerate wrongfully convicted individuals.
Retrying the case if the actual perpetrator is then apprehended is yet another
significant resource, and the emotional burden on the crime victims who
must then relive the crime is enormous.
In their influential and best-selling book, Actual Innocence, Jim Dwyer,
Peter Neufeld, and Barry Scheck urged the creation of “state and federal
institutions . . . to investigate wrongful convictions.” 190 Scheck and
Neufeld expanded on this recommendation in a 2002 article, arguing that
“innocence commissions should be automatically assigned to review the
causes of any officially acknowledged cases of wrongful conviction,
whether the conviction was reversed with post-conviction DNA tests or
through some other new evidence of innocence, and recommend remedies
to prevent such miscarriages of justice from happening again.” 191 The
American Bar Association also has recommended that jurisdictions consider
ongoing councils that include “the major stakeholders in the criminal justice
system to identify and suggest policy in problem areas.” 192 Finally, a new
national project, “Strengthening Justice System Processes to Help Prevent
the Conviction of Innocent Persons,” is bringing together officials from
“courts and other justice system institutions and agencies” in various states
to “develop effective practices and procedures that will help prevent the
conviction of innocent persons and will improve the reliability and integrity
of criminal justice processes.”193 The project, which is sponsored by the
Open Society Institute, has an advisory board that includes judges,
prosecutors, law enforcement officials, policymakers, researchers, and
academicians.

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109

Several states have undertaken formal investigations of known frailties in
their criminal justice systems, with a view toward preventing wrongful
convictions. Perhaps the most notable was in Illinois where, in 2000,
Governor Ryan established a bipartisan commission to consider the state’s
system of capital prosecution. Governor Ryan acted, he said, out of
concern that more individuals had been mistakenly sentenced to death by
Illinois than had actually been executed since the reinstatement of the death
penalty in 1973.194 Chaired by a former prosecutor, federal judge, and
former U.S. Senator, the fourteen-member commission returned a
comprehensive report recommending 85 changes to Illinois’ system of
criminal justice and especially its investigation and prosecution of capital
cases. In response to the commission’s work, the state legislature passed a
reform bill in November 2003 that included more than 20 of the
recommendations.195
Although the Illinois Commission was not designed specifically as an
innocence commission, much of its work was in this vein, as members
conducted their own “intensive examination of the cases involving the
thirteen men released from death row.”196 Recently, four other states have
formally established public innocence commissions. In 2002, North
Carolina’s Chief Justice I. Beverly Lake invited key representatives from
the criminal justice system and legal academic community to meet with him
to discuss the issue of the wrongful conviction of the innocent.197 From
that meeting, Justice Lake established the North Carolina Actual Innocence
Commission which meets to “identify the most common causations of
conviction of the innocent, both nationally and in North Carolina,” and to
issue interim reports addressing problems contributing to wrongful
convictions.” 198 In October 2003, the Commission released its first report
recommending measures to improve eyewitness identification
procedures.199 In Connecticut, Texas, and California, innocence
commissions have recently been established but have yet to begin their
work.
Some of America’s closest allies, including Canada and Great Britain, have
maintained innocence commissions for years. In Canada, the Royal
Commissions of Inquiry were formed over a century ago to permit
governments to “conduct independent, nongovernment-affiliated
investigations regarding the conduct of public businesses of the fair
administration of justice.” 200 These commissions formed the basis for
public inquiries into two celebrated post-conviction exonerations involving
Guy Paul Morin and Thomas Sophonow. In both inquiries the commissions
“held hearings, recruited, when necessary, government laboratories or

110

A VISION FOR JUSTICE

independent experts, and issued reports that dealt with the specific causes of
these wrongful convictions and made policy recommendations about
remedies to prevent wrongful convictions in the future.” 201
In the United Kingdom, the Criminal Case Review Commission (CCRC) of
Great Britain exists as “an independent, open, thorough, impartial and
accountable body investigating suspected miscarriages of justice in
England, Wales, and Northern Ireland.” 202 Initiated in 1997, the CCRC has
an independent staff and may engage experts to screen and investigate
erroneous convictions or unjust sentences. Should the CCRC become
convinced of a miscarriage of justice, it may refer the case back to the
appellate courts or recommend a royal pardon.
All Americans, regardless of their background or ideology, agree that
erroneous convictions should be avoided and that our criminal justice
system fails when an innocent person is sent to prison and the true
perpetrator remains free to prey on society. We must examine the system’s
errors, to analyze and learn from these mistakes, and institute
improvements. Otherwise, it is inevitable that we will repeat, if not
compound, those mistakes.

INNOCENCE COMMISSION FOR VIRGINIA

111

APPENDIX B
SURVEY METHODOLOGY
As part of the investigation, the ICVA’s researchers surveyed law
enforcement agencies and prosecutors’ offices in Virginia to learn more
about their practices involving eyewitness identification, custodial
interrogation, and discovery. The surveys focused on three primary
questions – how often and under what circumstances do law enforcement
agencies conduct eyewitness identifications; how often such agencies
perform custodial interrogations and under what circumstances; and to what
extent do prosecutors share information from their investigations with
defendants and defense counsel.
1.

Law Enforcement Agencies

The ICVA contacted two hundred seventy-six law enforcement agencies in
Virginia to participate in a survey, which was submitted to agencies by
electronic and traditional mail and by facsimile. An accompanying letter
asked the head of each agency to choose a “supervisor or other individual
with knowledge of these subjects” to complete and return the survey. One
hundred twenty-seven agencies participated in the survey, representing a
forty-six percent response rate and a number higher than the percentage of
agencies that responded to a similar survey conducted by the Virginia State
Crime Commission in 2004. Surveys were sent to police departments and
sheriff’s offices, recognizing that some sheriff’s offices are primarily
responsible for law enforcement in their jurisdictions; some share such
duties with police departments; and others are primarily responsible only
for corrections and court security. Eighty-five percent of responding
agencies have law enforcement duties. These one hundred eight agencies
formed the basis of discussion later in the report.
Surveys asked whether agencies are involved in taking or obtaining the
confessions of criminal suspects. Respondents answering this question in
the affirmative were then asked which methods they use to record the
custodial interrogation of suspects, as well as the reasons for using these
methods. Law enforcement agencies also were queried about the practices
they use for eyewitness identification, including “show-ups” (or field
identifications), lineups, photo arrays, and single photos, and their reasons
for using particular techniques.
The survey read as follows:

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A VISION FOR JUSTICE

Survey of Law Enforcement Best Practices
This short survey will help the Innocence Commission for Virginia to
understand the best practices used by law enforcement agencies in the
Commonwealth. It is being asked of all police departments and sheriff’s
agencies in Virginia to determine a) which organizations have law
enforcement responsibilities and b) the procedures they use in obtaining
suspects’ confessions or identifications. Responses are purely for research
purposes and will remain anonymous. No agency or jurisdiction will be
identified in the results.
The survey should take less than 15 minutes to complete. Please have a
supervisor or other individual with knowledge of these subjects complete
the survey. When finished please fax the survey to the Commission at 202785-7555. You may also mail the survey to our address, P.O. Box 10240
Arlington, VA 22210. Because the Commission is operating on a short
deadline, we ask that you respond by February 13th if possible. If you have
any questions – or if you would prefer to respond more informally – please
call Commission Chair Jon Gould at 703-993-8481 or email him at
innocencecommission@yahoo.com. Thank you for your assistance on this
important project.
Please circle or fill-in all responses as appropriate:
1. How is your agency best described?
A.
B.
C.

Police department
Sheriff’s office
Other (please describe)

2. Does your agency have law enforcement responsibilities?
A.
B.

Yes
No

IF NO, PLEASE STOP THE SURVEY AND RETURN IT.
THANK YOU FOR YOUR ASSISTANCE.
IF YES, PLEASE CONTINUE TO THE NEXT QUESTION.
3. How is your jurisdiction best described?
A.
B.
C.
D.

City or municipality
County
City/municipality and County
Other (please describe)

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113

4. How would you describe the surrounding area you serve? (Please circle
all that apply)
A.
B.
C.

City
Suburb
Rural

5. Approximately how many sworn officers does your agency employ?
_______________

The following five questions pertain to criminal confessions
6. Is your agency involved in taking or obtaining the confessions of
criminal suspects?
A.
B.

Yes
No

IF NO, PLEASE SKIP AHEAD TO QUESTION 11
IF YES, PLEASE CONTINUE WITH QUESTION 7
7. Which methods do you use to record the custodial interrogation of
suspects? (Please circle all that apply.)
A.
B.
C.
D.
E.

Have the suspect write out a statement
Have an officer record the statement in writing
Audiotape the statement
Videotape the statement
Other (please describe)

8. How often do you use videotape to record the custodial interrogation of
suspects?
A.
B.
C.
D.
E.

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A VISION FOR JUSTICE

Never
Rarely
Occasionally
Mostly
Always

9. If you use videotape to record the custodial interrogation of suspects, in
what types of cases do you employ the technology?
A. All kinds of cases
B.
Felonies only
C.
Serious felonies only
D. Capital cases only
E.
Other (please explain)
F.
Not Applicable (don’t use videotape)
10. If you do not use videotape to record the custodial interrogation of suspects,
what is the reason? (Please circle all that apply.)
A.
B.
C.
D.
E.
F.

Expense of videotaping interrogations
Difficult to operate/requires additional technical staff
Hinders or interferes with interrogation process or
officers' rapport with suspect
Had not considered videotape before
Other (please explain)
Not Applicable (already use videotape)

The following seven questions pertain to eyewitness identification
11. Which out-of-court identification methods do you use with eyewitnesses?
(Please circle all that apply.)
A.
B.
C.
D.

Show-up in the field
In-person line-up
Photographic array or photographic spread
Presentation of a single photograph to a witness

12. If you use a photographic array or photographic spread, how do you show
eyewitnesses the photographs?
A.
B.
C.
D.

In a group of photographs that the eyewitness can view
simultaneously
One photograph at a time
Either method A or B at the investigating officer's
discretion
Not Applicable (don’t use photographic arrays or
photographic spreads)

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115

13. If you use an in-person line-up, how are the suspects shown to the
eyewitnesses?
A.
B.
C.
D.

In a group so that the witnesses can view the line-up
participants simultaneously
One line-up participant at a time
Either method A or B at the investigating officer's
discretion
Not Applicable (don’t use in-person line-ups)

14. If you use a show-up, line-up or photo array, are eyewitnesses told that
a suspect is likely among those to be viewed?
A.
B.
C.
D.
E.
F.

Never
Rarely
Occasionally
Mostly
Always
Not Applicable (don’t use any of these procedures)

15. If you use a show-up, line-up or photo array, are eyewitnesses told that
they do not have to identify anyone during the procedure if they do not
see the suspect?
A.
B.
C.
D.
E.
F.

Never
Rarely
Occasionally
Mostly
Always
Not Applicable (don’t use any of these procedures)

16. If you use a show-up, line-up or photo array, do you videotape the
eyewitness identification procedures and the comments of the
eyewitnesses?
A.
B.
C.
D.
E.
F.

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A VISION FOR JUSTICE

Never
Rarely
Occasionally
Mostly
Always
Not Applicable (don’t use any of these procedures)

17. If you use a show-up, line-up or photo array, does the officer interacting
with the witness know who the likely suspect is?
A.
B.
C.
D.
E.
F.

Never
Rarely
Occasionally
Mostly
Always
Not Applicable (don’t use any of these procedures)

The following question is your opportunity to elaborate
17. Is there anything else we have not asked about these subjects that we
should know? (Please explain below.)

INNOCENCE COMMISSION FOR VIRGINIA

117

Commonwealth’s Attorneys

The ICVA contacted one hundred twenty Commonwealth’s Attorneys’
offices in Virginia to participate in the survey, of which twenty-six
responded. The response rate, approximately twenty-two percent, may at
first seem somewhat low, but it tracks the response rates from other
voluntary surveys of criminal justice processes. Although a higher rate
would have been preferable, the findings are nonetheless instructive.203
The survey queried prosecutors about their discovery practices, seeking to
understand under what circumstances they shared information from a
criminal case with the defendant and/or defense counsel. Surveys focused
particularly on partial-open-files and open-files policies and probed the
prosecutors’ reasons for their particular approaches. Like the surveys of
law enforcement agencies, questions employed a mix of structured and
open-ended responses.
The survey appeared as follows:
Survey of Discovery Practices
This short survey will help the Innocence Commission for Virginia to
understand the best practices used by prosecutors in the Commonwealth. It
is being asked of all Commonwealth’s Attorney’s Offices in Virginia to
determine the methods and procedures they use for discovery in criminal
cases. Responses are purely for research purposes and will remain
anonymous. No agency or jurisdiction will be identified in the results.
The survey should take less than 15 minutes to complete. Please have a
supervisor or other individual with knowledge of these subjects complete
the survey. When finished, please fax the survey to the Commission at 202785-7555. You may also mail the survey to our address, P.O. Box 10240
Arlington, VA 22210. Because the Commission is operating on a short
deadline, we ask that you respond by February 13th if possible. If you have
any questions – or if you would prefer to respond more informally – please
call Commission Chair Jon Gould at 703-993-8481 or email him at
innocencecommission@yahoo.com. Thank you for your assistance on this
important project.

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A VISION FOR JUSTICE

Please circle or fill-in all responses as appropriate:
1. What is the best description of your office’s jurisdiction?
A.
B.
C.
D.

City or municipality
County
City/municipality and County
Other (please describe)

2. How would you describe the surrounding area you serve? (Please circle
all that apply.)
A.
B.
C.

City
Suburb
Rural

3. Approximately how many attorneys does your office employ?
____________
4. How many of these attorneys handle criminal trials?
____________________
5. What is the average annual caseload for trial attorneys in your office?
_________________

The following questions concern discovery practices in criminal cases
6. What is your office’s practice for providing investigative materials to
the defense in criminal cases? (Please circle all that apply.)
A.

B.
C.

Provide only the discovery required by the Rules of
the Supreme Court of Virginia and the obligations
under the relevant case law to provide exculpatory
evidence to the defense.
Provide investigative reports prepared by law
enforcement officers.
Provide summaries of opinions and conclusions of
laboratory or forensic experts or specialists if no
written reports are prepared.
Provide written statements taken by law enforcement
officers from witnesses, copies of audio or

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119

F.
G.

videotaped witness statements, or summaries of
witness oral statements made by law enforcement
officers.
Provide field notes made by law enforcement
officers concerning their overall investigation and
notes of their interrogation or questioning of the
defendant.
Provide bench notes or laboratory notes of any
laboratory or forensic experts or specialists.
Identify the names and addresses of Commonwealth
witnesses who will testify at motions hearings or at
trial.
Provide copies of photographs, charts or other
demonstrative evidence and permit the review of
physical evidence that will be introduced at trial.
Permit the defense to review but not copy all nonprivileged material in law enforcement or
Commonwealth's Attorney files. (Partial "open files"
discovery policy.)
Permit the defense to copy all non-privileged material
in the law enforcement files or Commonwealth's
Attorney file. (“Open files” discovery policy.)

IF YOU DID NOT CIRCLE “I” or "J" IN QUESTION 6, PLEASE
SKIP AHEAD TO QUESTION 9.
IF YOU CIRCLED “I” or "J" IN QUESTION 6, PLEASE
CONTINUE WITH QUESTIONS 7 and 8.
7. Are there any cases in which you do not permit the defense to review
and copy non-privileged material in the case file? Who makes these
decisions? Please explain
8. What is your office’s reason for an “open files” practice? What are its
advantages and disadvantages? Please explain.

The last question is for all respondents.
9. Is there anything else we have not asked about these subjects that we
should know? Please explain below or on the back.

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When completed, please fax the survey to the Commission at 202-7857555. You may also mail the survey to our address, P.O. Box 10240
Arlington, VA 22210. All responses are anonymous and will remain
confidential. If you have any questions, please phone Commission Chair
Jon Gould at 703-993-8481 or email him at
innocencecommission@yahoo.com.
Thank you for your assistance. We very much appreciate your time.
The results of the surveys are discussed throughout the report, but one point
warrants extra mention. It is imperative that Virginia and other states
regularly survey their own criminal justice agencies to assess the
investigative and prosecutorial practices employed and to learn what
training or resources these offices seek. Indeed, one of the most striking
findings from the ICVA’s surveys is the number of respondents who
expressed interest in further training and resources to adopt “best practices”
employed by other jurisdictions, whether in Virginia or nationwide.

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121

END NOTES
1

Court TV, Stories of the Innocence Project: Marvin Anderson’s
Nightmare, (first aired Jan. 29, 2004); Taryn Simon, Peter Neufeld, and
Barry Scheck, The Innocents, (Umbrage Editions 2003).
2
The Spangenberg Group, A Comprehensive Review of Indigent
Defense in Virginia, On Behalf of the American Bar Association Standing
Committee on Legal Aid and Indigent Defense (2004); American Civil
Liberties Union, Broken Justice: The Death Penalty in Virginia (2004).
3
Based on extensive legal research and empirical study, the Crime
Commission, in January 2005, issued six recommendations to: 1. “Amend
the Code of Virginia to require local police and sheriff’s departments to
have a written policy for conducting in-person and photographic lineups.”
2. “Request the Department of Criminal Justice Services (DCJS), in
cooperation with the Virginia State Crime Commission, to establish a
workgroup to develop a model policy for conducting in-person and
photographic lineups.” 3. “Request DCJS, through regulation, to amend the
entry level and in-service training requirements regarding lineups to include
only use of the sequential method, by October 1, 2005.” 4. “Request DCJS
to work with the Virginia Law Enforcement Professional Standards
Commission to include the sequential method for conducting lineups as part
of the accreditation process for law enforcement agencies.” 5. “Require
DCJS, in conjunction with the Crime Commission, work with the Virginia
Sheriff’s Association and the Virginia Chiefs of Police Association to assist
members in using and understanding the benefits of the sequential method
of lineups; presentation to each association’s annual meetings will occur.”
6. “Amend the Code of Virginia to designate the Virginia State Police,
through their oversight of the Central Criminal Records Exchange, as the
repository for all mug shots and queries for photographic
lineups.” (Virginia State Crime Commission, HJR 79: Mistaken
Eyewitness Identification. Report of the Virginia State Crime Commission
to the Governor and General Assembly of Virginia (2005) (hereinafter
"Crime Commission").
4
Adrian Grounds, Psychological Consequences of Wrongful
Conviction and Imprisonment, 46 Canadian J. of Criminology and Crim.
Just. 165 (Jan. 2004, Special Issue).
5
Monroe v. Angelone, 323 F.3d 286 (4th Cir. 2003).
6
Please go to the Innocence Commission for Virginia’s website at
http://www.icva.us to access all of the supplemental research and individual
case reports.
7
Gray was later convicted of an unrelated murder on Aug. 29, 1990
in the Circuit Court for Richmond, Virginia.

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It is important to recognize the possibility that not every wrongful
conviction has resulted in an exoneration officially recognized by the
Commonwealth. While the ICVA’s recommendations are based upon the eleven
official exonerations that are described more fully herein, the potential exists for
wrongful convictions to occur under circumstances where actual innocence cannot
be conclusively established. In a substantial majority of the exonerations that the
ICVA reviewed (7 of 11), the eventual proof of innocence was the result of the
development of DNA testing. However, DNA evidence is unavailable in the vast
majority of serious crimes. A Department of Justice study of rape cases submitted
to the FBI Crime Lab for DNA analysis suggested that in as many as 25% of the
cases the wrong man had become the primary suspect, usually because of a
mistaken identification. There is no reason to believe that any fewer mistakes are
made in the vast majority of cases where DNA evidence is unavailable. Thus,
although the ICVA has identified only eleven cases of wrongful conviction since
1982, it seems probable that the need for reform in Virginia exists on a broader
scale.
9
Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 Ann. Rev.
Psychol. 277, 278 (2003).
10
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
11
Id. at 197 (quoting Simmons v. U.S., 390 U.S. 377, 384 (1968)).
12
McCary v. Commonwealth, 228 Va. 219 (1984).
13
Id.
14
Hairston v. Commonwealth, 1995 Va. App. 173 (Va. App. 1995);
Chambers v. Commonwealth, 1995 Va. App. Lexis 761 (Va. App. 1995).
15
Curtis v. Commonwealth, 396 S.E.2d 386 (Va. App. 1990).
16
Rodriguez v. Commonwealth, 20 Va App. 122, 128 (Va. App. 1995).
17
Wise v. Commonwealth, 6 Va. App. 178, 189 (Va. App. 1988); see also
Graham v. Commonwealth, 250 Va. 79 (Va. App. 1995).
18
See Crime Commission.
19
Gary L. Wells, What is Wrong with the Manson v. Braithwaite Test of
Eyewitness Identification Accuracy, (2003) (unpublished manuscript, on file with
author) (hereinafter “Identification Accuracy”).
20
See, e.g., Daniel Yarmey, Eyewitness Identification: Guidelines and
Recommendations for Identification Procedures in the United States and Canada,
44 Can. Psychol. 181, 181 (2003) (citing Brian L. Cutler & Steven D. Penrod,
Mistaken Identification: The Eyewitness, Psychology, and the Law (Cambridge
University Press 1995)).
21
Gary L. Wells & Donna M. Murray, What Can Psychology Say about the
Neils vs. Biggers Criteria for Judging Eyewitness Identification Accuracy? 68 J.
Applied Psychol. 347 (1983) (hereinafter "Wells & Murray").
22
Richard E. Nisbett & Timothy D. Wilson, Telling More Than We Can
Know: Verbal Reports on Mental Processes, 84 Psychol. Rev. 231 (1977).

INNOCENCE COMMISSION FOR VIRGINIA

123

See Identification Accuracy.
See Wells & Murray.
25
See Identification Accuracy.
26
Id.; see also Gary L. Wells, Verbal Descriptions of Faces From
Memory: Are They Diagnostic of Identification Accuracy?, 70 J. Applied
Psychol. 619 (1985)
27
See Identification Accuracy.
28
See Gary L. Wells & Amy L. Bradfield, Good, You Identified the
Suspect: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing
Experience, 83 J. Applied Psychol. 360 (1998) (hereinafter "Wells &
Bradfield"); see also Gary L. Wells & Amy L. Bradfield, Distortions in
Eyewitnesses' Recollections: Can the Postidentification-Feedback Effect Be
Moderated?, 10 Psychol. Sci. 138 (1999) (hereinafter "Distortions").
29
Id. at 363.
30
Id. at 366-367.
31
Id. at 367.
32
Identification Accuracy.
33
See, e.g., Wells & Bradfield at 366-367.
34
Identification Accuracy.
35
Wells & Bradfield at 363.
36
See Gary L. Wells, Mistaken Eyewitness Identification: Scientific
Findings and the Case For Improvements in How Lineups are Conducted,
Statement Before the Senate Judiciary Committee, at 3, available at http://
www.psychology.iastate.edu/faculty/gwells/Statement1.pdf (last visited
Feb. 6, 2004) (hereinafter "Statement"); Gary L. Wells, The Psychology of
Lineup Identifications, 14 J. Applied Psychol. 89 (1984).
37
See Statement at 3.
38
Nancy M. Steblay, et al., Eyewitness Accuracy Rates in Sequential
and Simultaneous Lineup Presentations: A Meta-Analytical Comparison, 25
L. and Hum. Behav. 459 (2001).
39
See Virginia State Crime Commission.
40
Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: Five
Days to Execution and Other Dispatches from the Wrongly Convicted,
(Doubleday 2000) (hereinafter "Scheck, Neufeld & Dwyer"); Samuel R.
Gross, et al., Exonerations in the United States 1989 through 2003, April
2004 (unpublished, on file with the author) (hereinafter "Gross").
41
Gross, at 7-8. (106 of 120 rape exonerations involved
misidentifications).
42
C.A. Meissner & J.C. Brigham, Thirty Years of Investigating OwnRace Bias in Memory for Faces: a Meta-Analysis, 7 Psychol., Pub. Policy
and L. 3 (2001).
24

124

A VISION FOR JUSTICE

Under Virginia law, "a witness other than the defendant, who has
been hypnotized prior to trial is, as a matter of law, incompetent to testify as
to those facts or circumstances which the witness recalled for the first time
during, or subsequent to, hypnosis." Hall v. Commonwealth, 12 Va. App.
198, 210 (Va. App. 1991).
44
National Institute of Justice, Eyewitness Evidence: A Guide for Law
Enforcement (1999). These guidelines were developed by a Technical
Working Group for Eyewitness Identification made up of representative law
enforcement, prosecutors, defense attorneys, and social scientists and were
published by the National Institute of Justice, an agency of the U.S.
Department of Justice.
45
In Illinois, some of the new procedures are part of a pilot project in
which three police departments are instituting the sequential, double-blind
procedures, and will report back to the Governor and Legislature, which
will study the effectiveness of the procedures and determine whether to
implement them state-wide.
46
This procedure is only required in Illinois in the police departments
participating in the pilot project.
47
Roy S. Malpass, & Patricia G. Devine, Eyewitness Identification:
Lineup Instructions and the Absence of the Offender, 66 J. of Applied
Psychol. 482-489 (1981); Nancy M. Steblay, Social Influence in Eyewitness
Recall: A Meta-Analytic Review of Lineup Instruction Effects, 21 L. and
Hum. Behav. 283 (1977).
48
Id.
49
See Wells & Bradfield.
50
See Crime Commission.
51
Id.
52
Expert testimony is admissible if the area of expertise to which the
expert will testify is not within the range of the common experience of the
jury. Coppola v. Commonwealth, 220 Va. 243, 252 (1979), cert. denied, 444
U.S. 1103 (1980).
53
These miscarriage of justice studies examined cases where people
were exonerated both before trial and after they were convicted.
54
Hugo Adams Bedau & Michael L. Radelet, Miscarriages of Justice
in Potentially Capital Cases, 40 Stan. L. Rev. (1987); Edward Connors, et
al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of
DNA Evidence to Establish Innocence After Trial, U.S. Dept. of Justice
Research Report (1996); Scheck, Neufeld & Dwyer, at 262 (2000);
Innocence Project, Case Profiles, at http://www.innocenceproject.org/case
(last visited Feb. 7, 2005).
55
Saul Kassin & Katherine Neumann, On the Power of Confession
Evidence: An Experimental Test of the Fundamental Difference Hypothesis,
21 L. & Hum. Behav. 469, 482 (1997).

INNOCENCE COMMISSION FOR VIRGINIA

125

Thomas P. Sullivan, Police Experiences with Recording Custodial
Interrogations, A Special Report Presented by Northwestern University
School of Law, Center on Wrongful Convictions, Summer 2004, available
at http://www.jenner.com/policestudy (last visited Feb. 7, 2005); a short
version of the report is also available in the December 2004 edition of The
Champion, the magazine of the National Association of Criminal Defense
Lawyers (hereinafter "Police Experiences").
57
Flanary v. Commonwealth, 113 Va. 775 (1912); Walton v. City of
Roanoke, 204 Va. 678 (1963).
58
Brown v. Mississippi, 297 U.S. 278 (1936).
59
Miranda v. Arizona, 384 U.S. 436 (1966)(police must also advise
suspects that anything they say may be used against them in court and that
they have a right to appointed counsel if they cannot afford to pay counsel);
see also Dickerson v. United States, 530 U.S. 428, 435 (2000)(affirming
constitutional basis of Miranda rule).
60
See the factors cited in Withrow v. Williams, 507 U.S. 680, 693-94
(1993).
61
Id.
62
See, e.g., Stephan v. State, 711 P.2d. 1156, 1159 n.6 (Alaska 1985)
(quoting Harris v. State, 678 P.2d 397, 414 (Alaska App. 1984)); and Davis
v. State, 438 P.2d 185, 194 (Wash. 1968); see also, Ashcraft v. Tennessee,
322 U.S. 143, 152-53 (1944).
63
Jackson v. Commonwealth, 266 Va. 423, 438 (2003).
64
Stephen A. Drizin & Richard A. Leo, The Problem of False
Confessions in the Post-DNA World, 82 N.C.L. Rev. 891, 907-909 (2004)
(hereinafter "Drizin & Leo").
65
See Cathy Young, Miranda Morass, Reason, at http://
reason.com/0004/fe.cy.miranda.shtml (last visited Feb. 7, 2005).
66
Drizin & Leo, at 917-918.
67
Drizin & Leo (citing Nathan Gordon & William Fleisher, Effective
Interviewing & Interrogation Techniques, 27-36 (C. Donald Weinberg ed.,
Academic Press 2002); Fred E. Inbau, et al., Criminal Interrogation and
Confession 209-347 (4th ed. Aspen Publishers 2001); Richard J. Ofshe &
Richard A. Leo, Decision to Confess Falsely: Rational Choice and
Irrational Action, 74 Den. L. Rev. 979, 1002-1006 (1997) (hereinafter
"Ofshe & Leo").
68
Ofshe & Leo, at 985-986 (footnote omitted).
69
See Gisli H. Gudjonsson, The Psychology of Interrogations and
Confessions: A Handbook 285 (John Wiley & Sons, Ltd. 2003) (hereinafter
"Gudjonsson"); See Paul Hourihan, Earl Washington's Confession: Mental
Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1491-94
(1995).

126

A VISION FOR JUSTICE

Gudjonsson, at 57-74.
See http://www.innocenceproject.org/causes.
72
Samuel Gross, et al., Exonerations in the United States, 1989
Through 2003, at http://www.law.umich.edu/newsandinfo/exonerations-inus.pdf (last visited April 2004).
73
The police claimed that Washington admitted leaving a shirt behind
at the crime scene, and the police found a shirt in the victim's home.
However, the jury never learned that police showed Washington the shirt
during the interrogation and held it up while he "described" the shirt that he
left at the scene.
74
The police apparently attempted to videotape one of these
interrogations, but the equipment malfunctioned and no audio was recorded
of the questioning.
75
"Interrogation still takes place in privacy. Privacy results in secrecy
and this in turn results in a gap in our knowledge as to what in fact goes on
in the interrogation room." Miranda v. Arizona, 384 U.S. 436, 448 (1966).
76
See note 62.
77
See Mallot v. State, 608 P.2d 737 (Alaska 1980) and State v. Scales,
518 N.W.2d 587 (Minn. 1994).
78
705 I.L.C.S. § 405/5-401.5.
79
725 I.L.C.S. § 5/103-2.1.
80
See D.C. City Council, “Electronic Recording Procedures and
Penalties Temporary Act of 2005.”
81
See Police Experiences.
82
See April Witt, Prince George's Police to Install Video Cameras:
Interrogation Tapings to Begin by Mar. 31, The Washington Post, Feb. 1,
2002, at B4.
83
See Wanda DeMarzo & Daniel de Vise, Ft. Lauderdale to Tape All
Homicide Interrogations, Miami Herald, at A1, available at 2003 WL
2573774; Paula McMahon & Ardy Friedberg, Sheriff to Tape Felony
Inquiries, Sun-Sentinel (Ft. Lauderdale, Fl), Feb. 11, 2003, at A1, available
at 2003 WL 11555119; and Wanda DeMarzo & Daniel de Vise, Miami
Police Plan to Videotape Interrogations, Miami Herald, Feb. 13, 2002, at
B1 available at 2003 WL 13342381.
84
Amy Klobuchar, Eye on Interrogations: How Videotaping Serves
the Cause of Justice, The Washington Post, June 10, 2002.
85
State v. Conger, 652 N.W.2d 704, 707 (Minn. 2002).
86
Id. at 708. See also, Commonwealth v. DiGiambattista, 442 Mass.
423, 440-449 (2004) and State v. Cook, 179 N.J. 533 (2004).
87
Police Experiences.
88
Id at 6.
71

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127

Policy and Procedures Manual of Broward County Sheriff's
Department, Interrogation of Suspects with Developmental Disabilities,
General Order 01-33, para. 13.2.15 et seq.
90
Videotaping refers to either analog or digital video technologies.
91
Va. Code Ann. § 19.2-62.
92
Wanda J. DeMarzo & Daniel de Vise, Experts Tape Police
Interrogations, The Miami Herald (Dec. 24, 2002).
93
For those law enforcement agencies that do not presently have
videotape capabilities, identical sanctions should apply when police fail to
audiotape custodial interrogations.
94
See, e.g. Stephan v. State, at 1162; State v. Schroeder, 560 N.W.2d
739, 740-41 (Minn. Ct. App. 1997); State v. Miller, 573 N.W.2d 661, 67475 (Minn. 1998); George v. State, 836 P.2d 960, 962 (Alaska Ct. App.
1992); Bodnar v. Anchorage, No. A-7763, 2001 WL 1477922, at *2
(Alaska Ct. App. Nov. 21, 2001).
95
See Spencer v. Commonwealth, 385 S.E.2d 850 (Va. 1989), cert.
denied, 493 U.S. 1093 (1990).
96
Rule 3A:11(b), Rules of the Virginia Supreme Court.
97
Stover v. Commonwealth, 211 Va. 789, 795 (1971)(citing Brady v.
Maryland, 373 U.S. 83 (1963)); Harrison v. Commonwealth, 405 S.E.2d
854, 857 (Va. App. 1991).
98
Watkins v. Commonwealth, 331 S.E.2d 422 (Va. 1985), cert.
denied, 475 U.S. 1099 (1986), Lowe v. Commonwealth, 239 S.E.2d 112
(Va. 1977), cert. denied, 435 U.S. 930 (1978). However, the Virginia rules
require prosecutors to file witness subpoenas in the court file, but do not
provide sanctions for failure to do so. Va. Code Ann. § 19.2-267.
99
Currie v. Commonwealth, 391 S.E.2d 79 (1990); See also Spencer
v. Commonwealth, No. 2207-0102, 2002 Va. App. LEXIS 604 (Va. App.
Oct. 8, 2002) (accused not entitled to reports, interview documentation and
internal documents of Child Protective Services in case where defendant
was alleged to have sexually abused a minor).
100
See, e.g., Commonwealth v. Sellers, 11 Va. Cir. 113, 1987 Va. Cir.
LEXIS 171, *1 (Oct. 20, 1987).
101
See Bellfield v. Commonwealth, 208 S.E.2d 771, 774 (Va. 1974).
102
See Spangenberg Report.
103
Id. at 70-71.
104
For example, over half of the first seventy DNA exonerations
analyzed by the Innocence Project involved police or prosecutorial
misconduct. In over one-third of those cases, the government failed to
disclose exculpatory evidence to the defense. Innocence Project, Causes and
Remedies, at http://www.innocenceproject.org/case/index.php (hereinafter
"Causes and Remedies") (last visited Feb. 7, 2005).

128

A VISION FOR JUSTICE

105

See Hall v. Commonwealth, 12 Va. App. at 210.
Criminal Justice Standards, Criminal Justice Section of the
American Bar Association (1968).
107
Id.
108
The Second Edition of the Standards can be found at http://
www.abanet.org/crimjust/standards (last visited Feb. 7, 2005).
109
Id.
110
Alaska; Arizona; Connecticut; Hawaii; Idaho; Illinois; Maryland;
Michigan; Minnesota; Missouri; New Hampshire; New Jersey; New
Mexico; Ohio; Oklahoma; Oregon; Oklahoma; Pennsylvania; Rhode Island;
Vermont; and Washington. See the ICVA Discovery Practices Chart online at http://www.icva.us.
111
In addition to the states listed in previous footnote, see also
California; Florida; Maine; Montana; North Dakota; and Wisconsin.
112
Kansas, Kentucky, and Texas.
113
See ICVA Discovery Practices Chart on-line at http://www.icva.us.
114
Social scientists refer to this concept as "confirmatory bias," which
is the tendency of researchers to seek out or selectively pay attention to
information which confirms what they already know or believe to be the
case, while ignoring or dismissing information that contradicts the
researchers' theory." See Randy Borum et. al., Improving Clinical Judgment
and Decision Making in Forensic Evaluation, 21 J. Psychiatry & L. 3, 4748 (1993).
115
Wrong Man Behind Bars, Wilder told, Richmond Times-Dispatch,
April 11, 1990, at A-6 (quoting Commonwealth's Attorney Learned Barry).
116
Frank Stokes, the F.B.I. agent who helped exonerate Jeffrey Cox, is
an advisory board member of the Innocence Commission for Virginia.
117
See, The Inquiry Regarding Thomas Sophonow, prepared by the
Province of Manitoba, Canada, available at http://www.gov.mb.ca/justice/
sophonow (last visited Feb. 7, 2005); See Hon. Fred Kaufman, The
Commission on Proceedings Involving Guy Paul Morin (Ontario Ministry
of the Attorney General, 1998), available at http://
www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin (last visited
Feb. 8, 2005); Governor’s Commission on Capital Punishment, Report of
the Governor’s Commission on Capital Punishment (April 15, 2002),
available at http://www.idoc.state.il.us/ccp (last visited Feb. 8, 2005).
118
Kent Roach, Wrongful Convictions and Criminal Procedure, 42
Brandeis L. J. (Winter 2003-04).
119
See data at http://www.innocenceproject.org/causes/index.php.
120
James S. Liebman & Jeffrey Fagan, A Broken System: Error Rates
in Capital Cases, 1973-1995, Columbia Law School, June 12, 2000,
available at http://www2.law.columbia.edu/instructionalservices/liebman
(last visited Feb. 7, 2005).
106

INNOCENCE COMMISSION FOR VIRGINIA

129

121

Rule 1.7. Conflict of Interest, Virginia Rules of Professional
Conduct, Sup. Ct. R. pt. 6, sec. II, 1.7 (2004).
122
Id. at Note 7.
123
Dowell v. Commonwealth, 3 Va. App. 555, 560 (1987)(decided
under Former Disciplinary Rule 5-105).
124
466 U.S. 668 (1984)
125
Id.; see also, Lovitt v. Warden, 266 Va. 216 (2003)
126
See, e.g., Lovitt, at 249 (2003)(citing Strickland, 466 U.S. at 689).
127
See, e.g., Causes and Remedies.
128
Rule 1.7 states: "A lawyer shall not represent a client if the
representation of that client may be materially limited by the lawyer's
responsibilities to another client or to a third person . . . unless . . . the client
consents after consultation . . . ."
129
A habeas petition must contain all allegations of fact known to the
inmate at the time of filing and no writ shall be granted based on any
allegation of fact that the inmate had knowledge of at the time of filing any
previous petition. Va. Code Ann. § 8.01-654(B)(2); see also, Dorsey v.
Angelone, 261 Va. 601 (2001). For further information about the common
problem of inmates using up their opportunity for habeas corpus relief
when their attorneys miss appellate deadlines and then file limited habeas
corpus petitions that only seek the right to file a belated appeal, see
Inexcusable Delay, The Washington Post, at A-16 (July 5, 2004).
130
Frank Green, Hair Analysis Use Faulted: Critics Say It's a Bad
Way to Make Identifications, Richmond Times-Dispatch, Oct. 19, 2002.
131
The lawyer implied during cross-examination that it was improper
for the victim to allow her thirteen-year-old nephew to baby-sit her infant
child while the victim worked as a cocktail waitress. He described the
waitress outfit worn by the victim, including a short mini skirt, as weird and
said it might appeal to somebody's sexual interest, implying that the victim
was somehow at fault for being attacked. Finally, he belittled the victim in
his closing argument because she had a tenth grade education and had
dropped out of high school, and several times conceded that his arguments
might be considered "obnoxious" and "insulting" by the jury.
132
See, e.g., Ten Principles of a Public Defense Delivery System,
American Bar Association Standing Committee on Legal Aid and Indigent
Defendants (Feb. 2002); Mandatory Justice: Eighteen Reforms to the Death
Penalty, The Constitution Project (2001).
133
See the Spangenberg Report; see also ACLU of Virginia, et al.,
Broken Justice: The Death Penalty in Virginia, 31-36 (Nov. 2003)(focusing
on quality of counsel issues in capital cases).

130

A VISION FOR JUSTICE

134

See, e.g., Summary of Reports, Studies, Legislative Action and
Other Actions Regarding Indigent Defense in Virginia, Appendix A to the
Spangenberg Report.
135
E. Tazewell Ellett, Justice Denied: Innocence Ignored; Innocents
Imprisoned, 30 VBA News Journal, (August 2004).
136
See West Virginia Indigent Defense Task Force Report (2000)
available at http://www.wvpds.org (last visited Oct. 29, 2004); FY02 North
Carolina Office of the Appellate Defender and Private Counsel CostBenefit Analysis (2003) available at http://www.aoc.state.nc.us/www/ids
(last visited Oct. 29, 2004); and see http://www.georgiacourts.org/aoc/press/
idc/idc.html (last visited Nov. 3, 2004).
137
See, e.g., Edward Connors et. al., Convicted by Juries, Exonerated
by Science: Case Studies in the Use of DNA Evidence to Establish
Innocence After Trial, Research Report of the U.S. Department of Justice,
Office of Justice Programs, National Institute of Justice (June 1996)
(hereinafter "Connors"); see also, http://www.innocenceproject.org/causes/
index.php.
138
Id. at 25.
139
Id. at 15, 18.
140
Id. at 15.
141
ABA Standards for Criminal Justice, Providing Defense Services
(3rd ed. 1992).
142
See, e.g., United States v. Wade, 388 U.S. 218, 227-28 (1967);
Barefoot v. Estelle, 463 U.S. 880, 898-99 (1983).
143
The Spangenberg Report at 62 (non-mental health defense experts
were authorized by the courts in less than one percent of the felony cases in
fiscal year 2002)(no data exists on the use of defense experts in privately
retained cases in Virginia).
144
Id. at 64.
145
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye
standard, while originally governing on evidence in federal courts, became
the controlling rule in 45 states. Note, 40 Ohio St. L. J. 757, 769 (1979).
146
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
147
O'Dell v. Commonwealth, 234 Va. 672, 695-97 (1988)(declining to
adopt Frye standard); John v. Im, 263 Va. 315 (2002)(leaving question of
whether to apply Daubert analysis to future consideration).
148
Spencer v. Commonwealth, 240 Va. 78 (1990).
149
Id. at 97.
150
Va. Code § 19.2-270.4:1.
151
Tim McGlone, Destroyed Evidence Still Crucial Years Later;
Missing Lab Samples Slow Felons' Appeals, The Virginian-Pilot (Norfolk,
VA), Jan. 2, 2003, at B1 (Norfolk and Virginia Beach Circuit Court Clerks
have adopted this policy).

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131

152

See, e.g., L.S. Miller, Procedural Bias in Forensic Science
Examinations of Human Hair, 11 L. & Hum. Behav. 157, 157-58 (1987); E.
Imwinkelried, Forensic Hair Analysis: The Case Against the
Underemployment of Scientific Evidence, 39 Wash. & Lee L. Rev. 41, 4144 (1982).
153
J. Peterson et al., Crime Laboratory Proficiency Testing Research
Program (L.E.A.A. Oct. 1978); see also, E. Imwinkelried, at 44 (incorrect
results involved those where the wrong result was reached and those where
technicians provided incorrect analysis or explanations).
154
Miller, at 160-61.
155
See Connors at 15.
156
Id.
157
Andre A. Moenssens, Symposium on Scientific Evidence:
Foreword: Novel Scientific Evidence in Criminal Cases: Some Words of
Caution, 84 J. Crim. L. & Criminology 1, 13-14 (1993) (footnote omitted.)
158
Maurice Possley, Steve Mills, and Flynn McRoberts, Scandal
Touches Even Elite Labs, Chicago Tribune, October 21, 2004, at A1.
159
Id.
160
John C. Tucker, May God Have Mercy: A True Story of Crime and
Punishment, 345 (Dell Publishing 1997).
161
A secretor is someone whose blood type can be identified from
other bodily fluids, for example semen or vaginal fluid. A non-secretor is
someone whose blood type cannot be determined from other bodily fluids.
162
Maria Glod and Michael D. Shear, Testing Ordered on Old Va.
Cases: DNA Work Affects Dozens of Inmates, The Washington Post, Oct. 1,
2004, at B1.
163
Id.
164
ABA, Report of the Post Conviction and Systematic Issues
Subcommittee of the ABA Criminal Justice Section’s Committee on
Innocence and the Integrity of the Criminal Justice Process, 1, 2 (draft
2003).
165
Kuhlmann v. Wilson, 477 U.S. 436, 452 (1986).
166
Id. at 452-53 (footnotes and citations omitted).
167
Va. Code Ann. § 8.01-654.
168
Lovitt v. Warden, 585 S.E.2d 801, 827 (Va. 2003)
169
Moreover, a petition for a writ of habeas corpus must be filed with
the Virginia courts within one year of the date the conviction became final.
Va. Stat. § 8.01-543(A)(2). Often, through no fault of the prisoner,
evidence of innocence does not become available for more than a year. In
most of the cases that the ICVA reviewed, biological evidence of innocence
became available more than a decade after the original conviction became
final. In David Vasquez’s case, several years elapsed between the date of

132

A VISION FOR JUSTICE

his conviction and the date the actual perpetrator committed a similar crime
that investigators were able to link to the crime for which Mr. Vasquez was
imprisoned. In the four cases the ICVA investigated that did not contain
biological evidence of innocence – Craig Bell, Jeffrey Cox, Russell Gray,
and David Vasquez – only in Bell's case was evidence of his innocence
discovered within one year after his conviction became final.
170
In Craig Bell’s case, the trial court vacated the conviction
notwithstanding the fact that it arguably had no jurisdiction to do so under
Va. Sup. Ct. Rule 1:1. In Department of Corrections, 222 Va. 454 (1981),
the court held that a trial court had no jurisdiction to vacate a sentence more
than 21 days after the date of the original order, and that the
Commonwealth’s acquiescence could not re-confer jurisdiction.
171
See Va. Code Ann. § 19.2-327.3
172
Va. Code Ann. § 19.2-327.10
173
For a more detailed discussion of clemency procedures in Virginia,
see the March 14, 2005 Memorandum from R. Derek Trunkey to Donald
Salzman, provided on-line at http://www.icva.us.
174
See Va. Const. Art. V § 12.
175
See Va. Code Ann. § 53.1-229.
176
Cherrix v. Braxton, 131 F. Supp. 2d 756, 768 (E.D. Va. 2001).
177
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 275 (1998).
178
Id. at 285.
179
Royal v. Taylor, 188 F.3d 239, 243 (4th Cir. 1999); Cherrix v.
Braxton, 131 F. Supp. 2d 756, 767 (E.D. Va. 2001); Michie's Jurisprudence
of Virginia and West Virginia, Pardon, Probation, and Parole, § 2.
180
In some circumstances, the writ of innocence also is unavailable to
prisoners who entered a plea of guilty and who rely upon biological
evidence. See Va. Code § 19.2-327.1.
181
See Washington Post series False Confessions, http://
www.washingtonpost.com/wp-dyn/metro/md/princegeorges/government/
police/confess (last visited Feb. 7, 2005).
182
Wanda J. DeMarzo and Daniel de Vise, Spotlight on False
Confessions, Miami Herald (Dec. 22, 2002).
183
Va. Code Ann. § 19.2-327.2 makes the Writ of Innocence available
to “a person incarcerated who was convicted of a felony upon a plea of not
guilty, or for any person, regardless of the plea, sentenced to death, or
convicted of (i) a Class 1 felony, (ii) a Class 2 felony or (iii) any felony for
which the maximum penalty is imprisonment for life.” (Emphasis added).
184
Gross et al.
185
See the ICVA’s website at http://www.icva.us.
186
See Va. Code Ann. § 19.2-327.3
187
Va. Code Ann. § 19.2-327.10

INNOCENCE COMMISSION FOR VIRGINIA

133

188

Va. Code Ann. § 19.2-327.10.
See the ICVA’s website at http://www.icva.us.
190
Scheck, Neufeld & Dwyer, at 260.
191
Barry C. Scheck and Peter J. Neufeld, Toward the Formation of
‘Innocence Commissions,’ 86 Judicature 98 (2002) (hereinafter "Scheck &
Neufeld").
192
Report, Post-Conviction and Systemic Issues Subcommittee of the
ABA Ad Hoc Committee on Innocence and Ensuring the Integrity of the
Criminal Justice System (2003).
193
Strengthening Justice System Processes to Help Prevent the
Conviction of Innocent Persons, Project Overview (2004).
194
The Maryland legislature also appointed a commission to consider
its system of capital punishment.
195
Illinois General Assembly, SB 472, which was vetoed by Governor
Blagojevich, but his veto was overridden by the General Assembly and
finally was codified in November 2003. Additionally, SB 15, which
required videotaping of interrogations, passed both chambers and was
signed by the Governor in July 2003.
196
Id.
197
Mission of the North Carolina Actual Innocence Commission,
available at http://www.innocenceproject.org/docs/
NC_Innocence_Commission_Mission.html (last visited Feb. 7, 2005).
198
Id.
199
North Carolina Actual Innocence Commission, Recommendations
for Eyewitness Identification, (October 2003).
200
Scheck & Neufeld, at 100; Watson Sellar, A Century of
Commissions of Inquiry, 25 Canadian Bar Rev. 1 (1947).
201
Scheck & Neufeld, at 100.
202
Criminal Cases Review Commission, at http://www.ccrc.gov.uk
(last visited Feb. 7, 2005).
203
Interestingly, smaller officers were more likely to respond than
were larger offices. Despite these patterns, the data discussed in this section
are statistically significant.
189

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A VISION FOR JUSTICE