And Justice Undone in Va.

Sunday, September 4, 2005

Some people believe that if Virginia had better-paid criminal defense lawyers with more administrative and investigative resources, it would have a better criminal justice system. That's just not the case.

We are convicting innocent people in Virginia because of false eyewitness testimony, false confessions, overeager snitches, faulty forensics and bad defense lawyers. These problems, unfortunately, are common in many states, but in Virginia they are compounded by poor prosecutorial and police behavior.

Prosecutors and police in Virginia, abetted by state laws, often hide information, mischaracterize information as insignificant, and surrender information reluctantly and only if the defense counsel asks the "right" question and the court can be persuaded to rule that the information must be surrendered.

Further, once the state secures its convictions, it destroys the evidence on an arbitrary timetable, undercutting the accused's opportunity for a retrial or appeal. The state takes this action even though the post-conviction process can be lengthy, particularly in capital cases.

We know that innocent people have been convicted in Virginia because of cases in which they later were exonerated by DNA evidence that was preserved, contrary to the state practice of destroying the evidence after conviction. In 1981, Arthur Lee Whitfield was convicted of raping two women in Norfolk within a single hour. Both women positively identified him. Whitfield pleaded guilty to one charge to get a lesser sentence. Some years into Whitfield's incarceration, a fellow inmate suggested that he inquire whether DNA evidence existed that might exonerate him. The technology was not available at the time of his trial.

The commonwealth had ordered the DNA evidence in Whitfield's case destroyed, but Mary Jane Burton, a serologist in the state crime lab, had ignored lab protocol and saved a sample. Because of her action, Whitfield was exonerated by the DNA evidence.

Whitfield was freed after having served 22 years of a 63-year sentence. Other DNA samples that Burton saved led to two other innocent people being freed from prison. Yet Virginia initially resisted allowing the DNA evidence in the case to be reviewed.

Former independent counsel Ken Starr is fighting to save the life of Robin Lovitt, who is charged with killing an Arlington pool hall manager with a pair of scissors in 1998. DNA analysis of the scissors failed to link Lovitt to the murder. His fingerprints were not found on the murder weapon, nor was any blood from the victim -- who had been stabbed repeatedly -- found on Lovitt's clothes or skin. The principal witness against Lovitt was an inmate who had testified against other inmates. Yet Lovitt was convicted on circumstantial evidence.

The Lovitt case awaits the decision of the Supreme Court when it reconvenes next month. The principal ground for appeal is the denial of due process because of the state's destruction of critical evidence despite its knowledge that habeas petitions in death cases always follow appeals in the state courts. Starr also has challenged the government's withholding of information that would prove or tend to prove the innocence of the accused or the unreliability of the witnesses.

If a party is sued in a Virginia civil court over a $200 bad debt, that party is entitled to disclosure about the most minute details relating to the dispute -- disclosure that is customarily withheld in criminal cases in the commonwealth. In a criminal case, the complaining officer swears out an affidavit that states the probable cause of a crime. The details are minimal, but they indicate the foundation of the commonwealth's case. But the charging officers and the prosecutors don't offer this disclosure to the defense. It has to be requested. The disclosure of such information should be routine.

When I was sworn in as a federal prosecutor, I was instructed, in the words of former Supreme Court Justice George Sutherland, that the prosecuting attorney "may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Sadly, Virginia is not unique in disregarding those sage words. But the remedy is clear. Virginia should put an end to ambush prosecutions and to the prosecutorial practice of withholding evidence, especially evidence exclusively within the government's control. Defendants deserve to know about witnesses who have deals with the government and anything else that sheds light on their guilt or innocence. Defendants should also have a right to depose witnesses before trial, to avoid surprise at trial. Finally, evidence of a crime should never be destroyed while the person is awaiting execution or is incarcerated. These are matters of simple justice -- but it is justice that so far has been elusive in Virginia.

-- John P. Flannery

now in private practice in Virginia, is a former federal prosecutor, a former director of the National Association of Criminal Defense Lawyers, and a former special counsel to the U.S. Senate Judiciary Committee and the U.S. House Judiciary Committee.

© 2005 The Washington Post Company