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.
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