Surge in filings fails to appear

[MoMo]

Surge in filings fails to appear
Only 6 to 10 claims of inmate innocence have been recorded
BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
Thursday, September 9, 2004

Contrary to fears that a new state law would generate an overwhelming number of frivolous inmate petitions, few new claims of innocence have been filed so far.

Before the law was passed this year, critics warned that it would lead to so many claims that the Virginia Court of Appeals and the attorney general's office would require additional staff.

But Judge Robert J. Humphreys of the appeals court said only six to 10 claims have been filed since the law took effect July 1.

"We're not being deluged by these like maybe some people thought," he said. That may change, the judge said, but he did not think it was likely.

Too early to gauge?

"I'm actually a little surprised the numbers are as low as they are. . . . I would have expected to see some serious numbers rather quickly," Humphreys said.

Nevertheless, Tim Murtaugh, spokesman for Attorney General Jerry W. Kilgore, said it is still too early in the process to know the full impact of the law.

One petitioner is inmate Lynard Barron, 28, convicted in 1997 of armed robbery and burglary in Henrico County and serving a 25-year sentence.

He said he has documents to prove he was in a hospital recovering from a gunshot wound at the time the crimes occurred.

In very limited circumstances, the new law allows evidence of innocence to be used in a Virginia court even if discovered more than 21 days after a case became final.

Virginia's so-called "21-day rule," the most stringent in the nation, was loosened a bit in 2001 when DNA evidence was removed from that limit. This year, the General Assembly opened the door a bit further to other kinds of evidence.

Law restricts filings

Only inmates who did not plead guilty - less than 20 percent of Virginia prisoners - can avail themselves of the new law, said Steven D. Benjamin, a Richmond criminal defense attorney and special counsel to the Virginia State Crime Commission.

Those who plead guilty must still deal with the 21-day rule. All inmates still have a pardon from the governor available if their proof of innocence is convincing enough.

Arthur Lee Whitfield - cleared of two Aug. 14, 1981, rapes by recent DNA testing - had pleaded guilty to one of the assaults to avoid the stiff sentence he received after being tried for the other rape.

Only because he had DNA evidence was he able to file an ac- tual innocence petition under the new law.

The new law requires that the new evidence be so convincing that no rational adjudicator could find guilt beyond a reasonable doubt.

Humphreys explained that the claims under the new law are filed with his court. He said forms asking for requisite information were sent to about 100 inmates who requested them, but only six to 10 have been returned properly filled out.

The cases go to three-judge panels that can dismiss them or ask the Virginia attorney general's office to respond - in which case the inmate is assigned a court-appointed lawyer.

Barron is hopeful. Interviewed by phone from the Greensville Correctional Center, he said he has sent the court proof he was in the former Richmond Memorial Hospital on Aug. 3, 1995, when the robbery for which he was convicted occurred.

He said he had been shot in the back of his left leg on Aug. 2 when he was robbed, possibly by the same men who committed the robbery for which he was convicted. Though both robberies occurred in 1995, he was indicted in 1996 and not convicted until 1997.

He said he did not know that he was in the hospital the night of the robbery when he was tried. A friend was able to obtain the hospital records showing he could not have committed the robbery.

Barron said, "I filed it a few weeks ago, and I'm still waiting for a response."

Barron said that in 1997, he told his trial lawyer he may have been in the hospital when the robbery occurred, but he said his lawyer did not follow through and obtain the records. "We never asked about them again," he said.

That, Benjamin said, could be a serious problem for Barron.

Under the new law, Benjamin said, inmates must be able to show the new evidence was not known or available to either the inmate or the trial lawyer at the time the conviction became final.

Benjamin said even if it was unknown but it could be demonstrated that it was available, "you're out of luck."

"In my mind, that's the greatest deficiency with this statute - it punishes innocent persons for attorneys' mistakes," Benjamin said. He said Barron may have "no relief whatsoever except for a pardon, and he will not get a pardon on that set of facts."

Murtaugh said the attorney general's office numbers differ from those of the appeals court. He said his office has received 41 petitions for writs of actual innocence, based on either the 2001 law for DNA or the new law.

He did not know how many of the 41 were filed under the new law or how many, if any, his office has filed a response to.

"It's a definitely noticeable increase but as far as what the actual work load will be and hours spent, it's premature to speculate," Murtaugh said.