By Laurence Hammack

Archives Reprint

    The Virginia Supreme Court has turned down an appeal by a Roanoke County man who for the past four years has been saying he did not molest a young girl who says the same thing.

    Aleck J. Carpitcher's appeal had sought to challenge the state's 21-day rule, which has prevented him from seeking a new trial based on the recantation of the girl who said she lied in testimony that sent him to prison for 38 years.

    In a two-sentence order dated Monday, a three-judge panel of the Supreme Court ruled that a Roanoke County judge committed "no reversible error" when he cited the 21-day rule in denying Carpitcher's attorneys a chance to raise the recantation.

    "It's very disappointing," said Christopher Amolsch, one of several Innocence Project lawyers trying to free Carpitcher.

    One of Carpitcher's few remaining options could be to seek a new trial under a proposed law that would allow some convicted felons to bypass the 21-day rule, a Supreme Court policy that bars newly discovered evidence of innocence unless it comes to light within three weeks of sentencing.

    The bill was passed this year, but the General Assembly must first take up a change proposed by Gov. Mark Warner before the legislation would take effect July 1.

    Amolsch said he plans to file a petition under the legislation once it takes effect - raising the possibility that Carpitcher's case will be the first to test the latest reforms to the 21-day rule, which is the nation's most restrictive time limit on new evidence.

    Carpitcher's alleged victim, who was 11 at the time of his 1999 trial, has since said she made up her testimony because she was angry at Carpitcher, who at the time was dating her mother and living in the home.

    The girl, who told a social worker she made up the allegation to get Carpitcher out of the house without realizing it would send him to prison, was the prosecution's only witness in a case that took less than an hour to present.

    A Roanoke County Circuit Court jury heard no other evidence supporting the girl's story before recommending a 73-year sentence. A judge later reduced the sentence by almost half.

    Because the girl's recantation came nine months after Carpitcher was convicted, Virginia law severely limited his options.

    In January 2002, attorneys for the Innocence Project filed a habeas corpus petition. Factual questions that go to guilt or innocence are generally not allowed in such proceedings, which instead center on alleged violations of a defendant's constitutional rights. Those rights include having an adequate defense attorney and the right to obtain exculpatory evidence from prosecutors.

    Amolsch raised both of those issues. He argued that the 45 minutes Carpitcher's trial attorney spent reviewing a thick prosecution file before the trial amounted to ineffective assistance of counsel. He also accused prosecutors of not revealing inconsistencies in the girl's pretrial statements.

    Judge Robert "Pat" Doherty rejected those claims last summer after hearing arguments that defense attorney Scott Gardner made a strategic decision not to attack the witness over minor discrepancies, and that prosecutors provided him a file that revealed her prior inconsistent statements.

    On those issues, the Supreme Court ruled Monday, Carpitcher had not raised sufficient grounds for an appeal.

    A third claim - that Virginia's 21-day rule is unconstitutional under the Eighth Amendment's protection against cruel and unusual punishment - was also turned down by the high court. Legal experts had called that claim a long shot because it challenged long-standing habeas corpus precedent.

    Prosecutors have said they would not try Carpitcher, now 47, a second time if he ever got a new trial, considering the victim's obvious credibility problems raised by her recantation.

    But in contesting the habeas petition, the attorney general's office raised a medical examination never presented as evidence. State lawyers said the exam corroborated the girl's initial story that Carpitcher placed his finger in her vagina on three separate occasions over nearly six months.

    Carpitcher's attorneys say the exam was meaningless, because it was made more than three months after the alleged abuse. And all the test did was confirm possible penetration, they said, which could have been the result of something other than sexual abuse.

Let any elected or appointed official know what you think and how you feel by CLICKING HERE.