After the exoneration of more than 100 wrongfully convicted people using DNA evidence, no one can dispute that innocent people sometimes are imprisoned for other people's crimes. When that happens, most people would agree, the courts should correct the injustice. But freeing innocent people through the courts has not been possible in Virginia because of a rule that makes judgments final after 21 days and prohibits the consideration of new evidence. After that, not even conclusive proof of innocence is relevant in court.
That is beginning to change. In 2001 the General Assembly created an exception for the consideration of DNA evidence -- but only if it was discovered by scientific techniques developed after a person's trial. Now the state Supreme Court has proposed a change in the rules that would let a person request a new trial on the basis of other new evidence of innocence.
But there's a catch. As with the DNA exception, evidence missed through attorney error or evidence that only suggests innocence cannot be presented. While the court's proposed relaxing of the 21-day rule is a step in the right direction, it does not give innocent people the access to the courts necessary to present the truth.
A good example of an innocent person for whom the proposed rule would do nothing is Jeff Cox. Based on questionable eyewitness identification, Cox, a 22-year-old New Kent County air-conditioner repairman with no criminal record, was arrested and charged with the abduction and murder of an elderly woman in Richmond. Cox eagerly awaited his trial date. He was innocent, and he had faith that the truth would set him free. But on Feb. 13, 1991, this innocent man was convicted and sentenced to life plus 50 years.
Cox took and passed a polygraph immediately after his trial, but the 21-day period passed before his attorneys did anything else. At that point under Virginia law, Cox's innocence became irrelevant to the courts.
In 1997, when his last possible handwritten request for justice was about to be dismissed for technical reasons, his mother persuaded us to represent him. For the next four years, we fought the state to obtain the original police file and any information about what had gone wrong with the investigation. We were told repeatedly that Cox's innocence was irrelevant.
Finally, through the heroic intervention of an FBI agent and others, on Nov. 14, 2001, Jeff Cox was released from prison when the state attorney general conceded that his convictions should be vacated. What made the difference was the confession of another man.
Cox's exoneration would not have been possible under the current law that permits the consideration of new DNA evidence. The DNA evidence contained in the fingernail scrapings from the victim had been destroyed years ago. Nor could he have received a new trial under the proposed exception for newly discovered evidence. Our investigation uncovered evidence of Cox's innocence and reasons to doubt the eyewitness accounts. But even under the more relaxed rule being contemplated, none of this evidence would count. The proposed rule would prohibit the consideration of impeachment or cumulative evidence, such as proof that the witnesses lied or evidence that is merely more persuasive than what was offered at trial.
The proposed rule also would prohibit the use of any evidence that could have been discovered by an attorney before trial. All of the new evidence we found could have been discovered at the time -- had Cox's lawyers sought it aggressively. Much of it served to impeach the eyewitnesses; although devastating to their credibility, it was not evidence that the proposed rule would allow.
The problem in Cox's case was that there was no smoking gun -- until the guilty man confessed. Even that testimony, had it been in the form of a witness recantation, would be considered inadmissible under the proposed rule.
It took 11 years and several near miracles for Jeff Cox to gain his freedom. At a minimum, the purpose of any change in the rules should be to reduce the system's reliance on miracles to free the innocent. Yet Virginia still resists the changes necessary to restore truth to its proper place in the courtroom.
Virginians expect swift and certain punishment, but only for the person who commits the crime. The finality of Cox's conviction ensured not merely that he would be punished unjustly but that the real murderers would remain free. Virginia can ensure that the right people are held responsible for their crimes only when it provides the opportunity for the truth to be heard in court at any time. Innocence must always be the key to freedom.
-- Steven D. Benjamin
-- Betty Layne DesPortes
are criminal defense lawyers in Richmond.