RICHMOND — Thomas Haynesworth is out of prison, but he isn’t free.
Haynesworth, released on parole last week after spending 27 years behind bars for a series of rapes and attacks prosecutors now believe he did not commit, must wear an electronic monitoring bracelet on his ankle.
He can leave his house only between 9 a.m. and 6 p.m. He must check in with a parole officer and take drug tests. And he is listed on Virginia’s sex offender registry as a violent offender.
Hoping to clear him completely, attorneys for the Virginia man on Wednesday asked the state’s Court of Appeals to clear his name.
Virginia Attorney General Ken Cuccinelli II (R) offered Haynesworth, 46, a personal apology, saying the criminal justice system failed him. And the state has taken the extraordinary step of backing his effort to have his named cleared.
Haynesworth has been exonerated by DNA in two rapes. But he also was convicted of two other attacks in which there is no genetic evidence to test, and Haynesworth will remain a convicted sex offender unless the Virginia Court of Appeals grants a “Writ of Actual Innocence.”
“I’m innocent,” Haynesworth said after the hearing. “I’ve got to keep fighting. I didn’t put myself in this situation.”
The court has only once before exonerated a convict in a case that didn’t have the certainty of DNA evidence; it has denied 183 claims. To clear him, the court must be convinced that no jury would convict Haynesworth if it heard all the facts known today.
Peter Neufeld, co-director of the New York-based Innocence Project, told the three-judge panel that DNA proves two women attacked in the Richmond area in 1984 mistakenly identified Haynesworth as their assailant. The genetic evidence implicates a convicted sex offender named Leon Davis, who is serving several life sentences for similar attacks.
Haynesworth’s legal team argues that the other victims also mistakenly identified Haynesworth and that Davis committed all the attacks. Davis, who has not been charged with the crimes for which Haynesworth was convicted, has declined requests to be interviewed.
Haynesworth and Davis lived in the same neighborhood, looked similar and were sometimes mistaken for each other. The attacks had commonalities, occurring early in the morning or in the evening. The assailant often tried to make small talk.
“Just look at the photographs of these two men,” Neufeld said. “Look at where they lived. It’s a matter of logic. It’s a matter of common sense.”
Assistant Attorney General Alice Armstrong told the court that the state backs Haynesworth’s request. “Our position is that he is factually innocent,” she said.
During the hearing in a packed courtroom, Judge James W. Haley Jr. asked why a juror might not support a guilty verdict based on the testimony of the women who identified Haynesworth as their attacker.
Neufeld said that given the benefit of today’s technology, that juror would know that DNA proved two women had wrongly identified Haynesworth. If prosecutors had that scientific evidence in 1984, he argued, Haynesworth wouldn’t have been charged.
The judges asked questions about Haynesworth’s trials and the similarities among the attacks.
Attorneys said the court’s ruling likely will take weeks. In the only other “Writ of Actual Innocence” granted based on non-DNA evidence, the court cleared a man of a weapons possession charge after finding that the weapon he had was not an actual firearm.
Virginia had long barred the introduction of new evidence more than three weeks after sentencing. In 2001, the General Assembly began changing the law after some high-profile exonerations.
A 2001 law gave inmates the right to ask for DNA tests at any time. The following year, Virginia voters approved a constitutional amendment that allows felons to present that scientific evidence to a court. A 2004 law expanded the rule to allow the consideration of new non-DNA evidence, such as fingerprints, ballistics or recanted testimony.