Tuesday, August 31, 2004
Virginia 'justice' gives truth too low a priority
From the RoundTable blog
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Payden-Travers is director of Virginians
for Alternatives to the Death Penalty,
in Charlottesville.
On Aug. 23, Virginia's latest exonoree walked out of a Department of Corrections prison. Arthur Lee Whitfield tasted freedom for the first time in 22 years. Twice convicted of rape in 1982, Whitfield was freed after DNA evidence forced the commonwealth to admit it had punished the wrong man for more than two decades.
Whitfield's case has a lot to teach Virginia about its criminal "justice" system. Most important is the fact that if this man had been convicted of capital murder here, he would have been executed 15 years before his evidence of innocence was discovered. The average length of stay on Virginia's death row before execution is the shortest in the nation at 7.1 years.
It is especially fortunate for Whitfield, his family and all Virginia residents that a now-deceased lab technician, Mary Jane Burton, "violated" lab procedure and cut pieces of evidence from lab samples and taped them into the pages of her lab book. Julius Earl Ruffin also was freed last year by evidence obtained from that same notebook.
Truth is the foundation of our criminal justice system. Just as DNA evidence provided truth in the exonerations of Whitfield and Ruffin, why won't Gov. Mark Warner order the testing of the existing DNA of Roger Keith Coleman and settle, once and for all, whether he killed Wanda Faye McCoy on March 10, 1981?
In 2001, Virginia passed a law allowing inmates to petition the courts for DNA analysis of evidence. Why not also allow for finality in murder cases for executed men like Joseph O'Dell and Roger Coleman? Why not release the evidence contained in that lab book so that others might benefit from its contents? Why not allow truth to flourish and to breathe?
Another interesting finding from this recent exoneration is the fact that Whitfield was convicted of two separate rapes. In each case, the victim identified him as the rapist. Although he has maintained his innocence for the rape that resulted in a conviction in January 1982 by a jury, he actually pleaded guilty in June 1982 for the second rape.
Could it be that having already been convicted and sentenced to 45 years in prison for a rape he knew he didn't commit, he found it "in his interest" to enter a guilty plea in June 1982 to the second charge in return for a lesser sentence? If the DNA evidence is to be believed, Whitfield pleaded guilty to a rape he didn't commit.
But Virginia's new 2004 law (Issuance of Writ of Actual Innocence for Nonbiological Evidence), which supposedly reformed the 21-day rule, allows only prisoners who pleaded "not guilty" to seek relief from the courts. Luckily for Whitfield, there was "biological" evidence in that lab notebook. Otherwise, he would join the 95-plus percent of convicted felons to whom Virginia still denies the opportunity to present nonbiological evidence of actual innocence beyond 21 days of their original conviction.
Those are the men and women who, often on the advice of attorneys, plead guilty, plead nolo contendere, enter an Alford plea or accept a plea bargain. All in hopes of a lighter sentence....
Under our Constitution, one is to be presumed innocent until proved guilty. That premise is severely undermined when innocent people like Whitfield are forced to enter guilty pleas because they know the system is stacked against them. The Virginia General Assembly needs to re-examine its supposed" reforms of the 21-day rule and grant relief to any convicted inmate who has actual evidence of innocence. How many more wrongfully convicted are in Virginia's prisons?
Interestingly, in each of Whitfield's rape convictions, the victim identified him as the rapist. What does this tell us about eyewitness identification by a person who has undergone great trauma? Eyewitness identification is especially worrisome in contested capital cases where the life and death of a possibly innocent person hangs in the balance.
Fortunately, Whitfield didn't depend on court-appointed counsel to file his petition for DNA analysis of evidence. He initiated it himself and later was appointed a lawyer by the court.
James Reid, who is scheduled to die Sept. 9, relied on his court-appointed attorneys when he was tried for capital murder in 1998. On the advice of counsel, he pleaded guilty and waived his right to a jury trial. Montgomery County Circuit Court Judge Ray Grubbs sentenced Reid to death.
There is no doubt that Reid is guilty of the death of Annie Lester. The question is whether he is guilty of capital murder.
Reid suffers from brain damage due to an injury received in an auto accident as a young man. He is also an alcoholic and was so drunk the night of Lester's murder that he doesn't remember anything about the killing for which he was charged.
His lead attorney was disciplined by the Virginia State Bar for lying about his trial experience in capital cases so he could represent Reid and can no longer practice law in Virginia. Both of Reid's original trial court-appointed counsel have been treated for drug dependency.
In June 2003, the U.S. Supreme Court ruled in Wiggins v. Smith that the ineffective performance of counsel violates a defendant's Sixth Amendment right to effective assistance of counsel if the lawyers did not adequately prepare for the sentencing phase. It is time for Virginia to examine its denial of a defendant's right to effective counsel through the inept court-appointed system that now exists.
Whitfield is the exception to the rule. Reid is not so lucky. Except for the possibility of clemency on the part of Gov. Mark Warner, another Virginia prisoner will die as a result of ineffective trial counsel.
Reid's case is also of interest because the federal courts have ruled he has a right to pursue a civil rights claim centering on the lethal injection protocols of Virginia's Department of Corrections. Those protocols are now banned by the Virginia state veterinarian for use on cats and dogs as cruel and inhumane.
However, at the request of the Virginia attorney general, Judge Grubbs has set Sept. 9 as the date of execution. How ironic that an individual who has been granted a legal right to seek relief in federal court from the lethal-injection protocols used by the state may well be executed by those same protocols before he can seek such relief.
Does this sound like a Catch-22? At the very least, Gov. Warner should intervene to grant a stay of execution.
Virginia needs a governor who will take a leadership role in fixing a broken system of justice. When politics mixes with issues of justice in Virginia, justice is relegated to a back seat, so that petty legislators can look tough on crime and criminals to constituents.
Leaders should help enlighten and educate the public by reforming a system of justice that must truly aspire to find truth.
