Writs of actual innocence are tough...

I get a lot of calls from people who want us to go back into court to have a judge throw out their boyfriend's, or their son's, or their husband's, conviction on the grounds that he is really innocent. Usually it comes down to the fact that the jury believed the wrong person -- the snitch said that he confessed, but the defendant says he didn't do it, and the jury believed the snitch.  I have to tell these callers that appeals on that basis are virtually always losers.  I say to them, "You can pay me a bunch of money to try it, but I have to tell you that it is virtually guaranteed to fail."  The procedure would be to file a Petition for Writ of Habeas Corpus, but the United States Supreme Court and the Virginia Supreme Court have both said that there is no right to a Petition for Writ of Habeas Corpus based on a claim of innocence, unless the claim of innocence is accompanied by a constitutional error such as prosecutorial misconduct or ineffective assistance of counsel.  The U.S. Supreme Court has said quite clearly that it is not unconstitutional to convict someone who is actually innocent.

And don't get me started on how wrong-headed I think that is.

In response, the General Assembly in 2001 created a new proceeding called a Petition for Writ of Actual Innocence.  At first the Petition for Writ of Actual Evidence had to be based on biological evidence -- generally DNA evidence that wasn't available at the time of the original prosecution.  In 2004, the General Assembly added a separate category -- a Petition for Writ of Actual Innocence based on nonbiological evidence under  Va. Code section 19.2-327.10  The key to such a Petition is found in section 19.2-327.11(A):

... (vi) that the previously unknown or unavailable evidence is such as could not, by the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entry of the final order of conviction by the court; (vii) the previously unknown or unavailable evidence is material and when considered with all of the other evidence in the current record, will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt; and (viii) the previously unknown or unavailable evidence is not merely cumulative, corroborative or collateral.

The Virginia Supreme Court has always been very hard to convince on this question of whether "the previously unknown or unavailable evidence ... when considered with all of the other evidence in the current record, will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt." 

I get calls all the time from people in prison who say, "That guy who testified against me has now recanted his story.  Can I get my conviction reversed?"  And all I can say is, "Not very likely."  We got another dose of "not very likely" ten days ago in the Virginia Supreme Court, when the Court affirmed a conviction, denying a petition for writ of actual innocence, in Turner v. Commonwealth, one of the "Navy SEAL" cases. 

On September 16, 2011, the Virginia Supreme Court unanimously refused to exonerate Dustin Turner, a former Navy SEAL trainee who was convicted of the abduction and murder of a woman he met at a Virginia Beach nightclub in 1995.  Turner is serving an 82-year prison sentence for the abduction and killing of Jennifer Evans in 1995.  Another former SEAL trainee, Billy Joe Brown of Dayton, Ohio, was convicted in a separate trial and is serving 72 years.  Brown originally blamed Turner for the killing, and it was on the strength of that testimony that Turner was convicted.

But Brown changed his story in 2003.  He said that he had recently become a Christian and he wanted to set the record straight.  Brown made affidavits that said that he alone strangled Evans, and that all that Turner did was to help him dispose of her body at a Newport News park.

Turner filed for a petition for a "writ of actual innocence" in the Court of Appeals of Virginia.  That court sent the case back to the Virginia Beach Circuit Court, and the judge there held a two-day hearing on the Petition. After the two-day hearing, the judge said that he thought that Brown's new statement was credible, but that there was enough other evidence that a jury could have concluded that he was guilty anyway.  The case went back up to the Court of Appeals, which ruled that if the new statement was credible -- as the Circuit Court judge had found -- then Turner must be not guilty and he is exonerated.  The Commonwealth, through its Attorney General, then appealed.  The entire Court of Appeals, sitting en banc, reversed the grant of the writ.  Turner v. Commonwealth, 56 Va. App. 391, 694 S.E.2d 251 (2010).  The case was then appealed to the Virginia Supreme Court.

The Supreme Court justices agreed with the full appeals court that a jury could have concluded that Turner abducted Evans through deception with the intent of sexually assaulting her, which would make him as responsible as Brown for the subsequent murder.  Justice Don Lemons wrote: "the fact act that Brown now confesses that he acted alone in restraining and choking Evans does not absolve Turner of his guilt."  Justice Lemons also wrote:

In considering Brown's recantation testimony here, as we stated in Lewis v. Commonwealth, 193 Va. 612, 626, 70 S.E.2d 293, 302 (1952), "while we know from his lips that [he] spoke falsely on one occasion, this does not establish that his testimony at the trial was false and the statements in the subsequent affidavit were true."

Quoting this case, and given the rest of the analysis, it all amounts to a conclusion that recantation testimony is almost never going to be enough to get a new trial. 

In my view, Dustin Turner's only hope is to request clemency from the Governor.  And you have to remember that Governor Robert McDonnell was Attorney General during much of the time that Turner's case was reaching the appellate courts.  If Attorney General McDonnell ever had any doubts about the strength of this case, he didn't let on.  I suspect that Governor McDonnell doesn't either.

Criminalizing civil collections

Tomorrow I will be arguing to the Virginia Supreme Court a case that, in the greater scheme of things, seems pretty trivial.  The case is McDowell v. Commonwealth, on appeal from the Circuit Court of Charlottesville. The Virginia Court of Appeals had affirmed his conviction in 2010.  57 Va.App. 308, 701 S.E.2d 820 (2010).

My client had entered into a "rent-to-own" contract with a local company.  He got a fancy large-screen television for $99 a month.  Well, it was really $123.27 a month, when you add in the processing fees, insurance waiver, etc.  He had committed to pay them what amounted to $4,500 to buy a $1,500 television.  If this had been a transaction subject to federal consumer protection statutes, we would have figured his APR to have been 91.74%.  In the lease, he said that he was living at 1800 Jefferson Park Avenue, Charlottesville.  Anyone familiar with 1800 Jefferson Park Avenue knows that it is a very large apartment complex, with probably hundreds of apartments in it.

My client made his payments for about 5 months, and then -- under circumstances that are not quite clear -- he and his girlfriend moved out, and the television disappeared.  Soon after that, my client got arrested on other charges; by that time he definitely didn't have the television.

When he hadn't paid in a month, the rent-to-own company sent its manager by his residence, and they noted that the apartment -- 1800 Jefferson Park Avenue, Apartment B37 -- seemed to be empty.  So they sent him a letter, certified, to 1800 Jefferson Park Avenue, Apartment B37 -- the address where they knew he no longer lived.  Not surprisingly, it was never picked up.  The rent-to-own company then got a warrant for his arrest for grand larceny under Virginia Code section 18.2-118.  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-118   That section provides that if someone is sent such a letter to the address in the lease, and doesn't respond, it is presumed that they intended to defraud the owner of the property, and therefore that they would be guilty of larceny.  Now here is the really subtle point -- the address that they sent the letter to was not EXACTLY the same address as the address on the lease.  It was pretty close, but it wasn't exact. We have argued that for the rent-to-own people to rely on the presumption of fraud coming out of the sending of this letter, they have to do EXACTLY what the statute says.  If they think that the person would actually get the letter if it was sent to Apartment B37, they can spend another 44 cents on a second letter if they want to, but if they want to get the benefit of this provision, they have to do EXACTLY what it says.  "Close" counts for horseshoes and hand grenades, but not rent-to-own televisions.

So -- where the government has no other proof of what happened to the television, can they rely on this statutory presumption of fraud arising from his failure to respond to a letter that everyone agrees he didn't get and couldn't possibly have gotten?

And why do we care?

There are three basic problems here.

1.  The rent-to-own company really should have been proceeding under a different statute that fits the situation more clearly -- Virginia Code 18.2-115, which makes it a crime to move a leased piece of property from the place where the lease says the property is supposed to remain.  In other words, if the lease says, "This television shall stay at 123 Main Street," and it is moved from 123 Main Street without notifying the lessor, that is a crime.  The rent-to-own company didn't bring charges under that section, because that section doesn't have this "if you don't respond promptly to our letter, you're guilty" language.  They proceeded under a statute that doesn't fit the situation as well, because it was easier to do.  The trial lawyer (not our firm) who had this case at trial did not make an objection based on this, so we can't use this as a basis for reversal, but the Virginia courts have never cared much about this problem -- if you do something illegal, and it violates three different statutes, the Commonwealth can pick which one they want to prosecute under. 

2.  Every one agrees that he wouldn't have gotten the letter if they had sent it to the address on the lease, and everyone agrees that he didn't get the letter that was actually sent.  So we are engaged in what is sometimes called a "legal fiction."  Sending a letter that we know is never received is treated the same way as sending a letter that we know was received, but was ignored.  There are various Constitutional objections that might have been made to the application of this. For example, in Tot v. United States, 319 U.S. 463 (1943) -- http://supreme.justia.com/us/319/463/case.html -- the U.S. Supreme Court held unconstitutional a presumption that wasn't logical.  In that case, the Court was considering an early version of the federal statute that banned felons from possessing firearms.  Because Congress was concerned about trying to establish an effect on interstate commerce, the statute contained a presumption that the Court held made no logical sense-- if someone who had been convicted of a crime of violence later possessed a firearm or ammunition, it was to be presumed that the article was received by him in interstate or foreign commerce, and that he received it after July 30, 1938, the effective date of the statute.  The Supreme Court held:

Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience.

319 U.S. at 467-68.   Such a statutory presumption violates the Due Process Clause.  The fact that the presumption is "more convenient" for the government is irrelevant.  The fact that the defendant would know the missing answer better than anyone is also irrelevant. 

Here, it would have been nice if someone at trial had made an objection like this so that we could ask the Virginia Supreme Court to rule in our favor on this basis, but no objection was made, so we are left with this extremely picky issue under the statutes.

3.  Which gets us to our third problem -- the extent to which the legislature is passing laws that turn ordinary civil disputes into crimes.  What actually happens in these cases is that when the defendant gets sent a letter threatening criminal prosecution, many of them will hurry in and pay up.  If they don't, they may get served with a criminal warrant.  Then many more of them will hurry in and pay up, and the case will likely be dismissed, or else plea-bargained away so that the person gets no jail time.  The only people who get charged and convicted are the people who don't pay this civil debt.

In almost any other setting, if I write a letter to someone and say, "Either you pay me $1,500 or I'll get a criminal warrant against you charging you with a felony," I'd be guilty of the serious crime of extortion.  But not so here.  The rent-to-own center is permitted to enter into this contract with rates of interest up to 91.74% a year -- which would itself be illegal in most settings.  Then they are allowed to collect on the debt by threatening criminal prosecution -- which would itself be illegal in most settings.  And they are allowed to do so by relying on the mailing of a letter that everyone knows the other person will never get -- which may not be illegal but is certainly stupid.

The larceny statutes of Virginia have other provisions that have the effect of turning civil disputes over money into criminal charges.  For example, we represented a woman who was being charged with the crime of moving a vehicle that was subject to a security interest (see section 18.2-115, referred to earlier).  She had bought a car from a car dealer who was pretty shady.  Then in the first 30 days, the car -- which the dealer had warranted for 30 days -- had broken down, and it had no value. The dealer then died, his heirs argued that the warranty didn't mean what my client thought it meant, and the estate tried to collect on the debt.   Not surprisingly, she refused to pay, and the Estate tried to repossess her car.  In the meantime she had moved (not anything fraudulent -- just from one part of the County to another), and the Estate didn't know where the car was, so they charged her with a violation of  section 18.2-115 -- a felony.  Before we got into the case, the Commonwealth's Attorney had seen all of the paperwork, and had authorized prosecution.  When we got into the case, we could show the Commonwealth's Attorney the many ways in which the dealer had violated the consumer protection laws, and they agreed to dismiss the criminal charges and to leave the dealer's Estate to its civil remedies. 

Every defense lawyer who represents people of limited means, and every Legal Aid lawyer, knows that the laws of Virginia have been written to help creditors collect debts.  My point when I argue my case to the Virginia Supreme Court tomorrow will be that the court system should not be trying to make it easier to do so.

Expungements and Pardons

We get a lot of phone calls from people who have been convicted of crimes, wanting to have their convictions expunged. Unfortunately, there is nothing we can do -- Virginia law is very clear that you can only have a charge expunged if you are found not guilty or the charge is dropped. Virginia is one of the harshest, least forgiving states in the nation in this regard.

We have sometimes been successful in asking the Governor for a "simple pardon" of the offense. A "simple pardon", according to the Governor's office, is "a statement of official forgiveness." A simple pardon does not expunge (remove the conviction from) the record, but it might be a help to someone whose criminal record seems to be holding them back.

When we have helped someone get a simple pardon, we file a fairly detailed report on the person. We try to show that the person has been a good citizen, and we bring in letters of support from the Sheriff, the Commonwealth's Attorney, and other people who know the person.

One time when a simple pardon can be particularly appropriate is when the person has been convicted of a domestic assault and battery, and can't have a firearm because of that conviction.

We recently obtained a simple pardon for someone who had been convicted of assault on his wife more than 35 years ago; now he wanted to be able to take his grandchildren hunting. We filed about 20 pages of documents in support of this Petition, and it was granted. Our client is very happy that he will be able to take his grandchildren hunting with him when deer season opens this fall.

Virginia Criminal Law

This blog -- maintained by attorneys at the Charlottesville law firm of Snook & Haughey, P.C., discusses current trends in Virginia criminal law.  We discuss recent court cases, recent changes in the statutes, recent experiences in court and what these trends mean for our clients.