'Do the fair thing'

State Senate allows defendants to challenge convictions based on junk science

By Peter Vieth
BridgeTower Media Newswires
RICHMOND, VA — After an impassioned plea from a man who spent 33 years in a Virginia prison for a killing he did not commit, a state Senate committee on Jan. 23 gave the go-ahead for a procedure to let defendants challenge convictions based on junk science.

Keith Harward, 62, told legislators it was now-discredited bite mark evidence that helped put him behind bars in 1983.

With a Netflix video crew recording the proceedings, Harward urged passage of Senate Bill 1066, a measure that would allow those claiming innocence to petition the state Court of Appeals, arguing that developments in science now clear them of what they were convicted.

“You have the opportunity today to show the citizens that you want to do the fair thing. That’s all it is – just being fair,” Harward said.


Actual innocence procedure

When a senator questioned whether the procedure for writs of actual innocence doesn’t already address the problem, Senate Courts Committee counsel Steven Benjamin said the actual innocence system does not apply for recent convictions. He spoke in support of the legislation offered by Sen. Bill Stanley, R-Moneta.

“The writ of actual innocence was effective for those who were convicted in the ’70s and the ’80s before forensic DNA was being used in the courtroom... It worked for the old cases, it doesn’t work for anything since about 1990,” Benjamin said.

Harward was cleared by DNA evidence in 2016.

The underlying problem is not a scientific one, Benjamin said.

“The problem is a legal problem, because the law in Virginia values precedent over advances in knowledge,” Benjamin said. “For example, the scientific community long knew that bite mark evidence was invalid, that microscopic hair comparison evidence was invalid. But the courts long ago held that these techniques were admissible. And so, valuing precedent, this evidence continues to be admitted, even today.

“This bill is necessary to address instances in which discredited, invalid, inaccurate science has been admitted and used to convict an innocent person,” Benjamin continued. “This bill is necessary,” he told the senators.


Judges object

But a committee of judges has concerns about procedure, according to a representative of the Supreme Court’s administrative office. She said the junk science bill would disrupt the current scheme whereby innocence claims based on non-biological evidence are heard at the Court of Appeals and biological writs are heard at the Supreme Court.

The judges also had double jeopardy concerns, since the junk science bill would allow retrial at the commonwealth’s discretion. The court representative said her office would be willing to work with drafters of the legislation to deal with concerns.


No limit to petitions

Prosecutors raised issues as well.

Because science is always changing, the bill could allow an unending succession of petitions as new developments come to light, said Michael R. Doucette, executive director of the Virginia Association of Commonwealth’s Attorneys.
“It doesn’t say it has to be a significant or monumental change in science. It could be a minor change in science,” Doucette said. “And so there is literally no limit to the number of petitions that could be filed.”

The committee reported the bill, sending it to the Senate Finance Committee for evaluation of its fiscal impact and with direction for the drafters to work with the Supreme Court on procedure. The only “no” votes came from Sens. Mark D. Obenshain, R-Harrisonburg, and Thomas K. Norment Jr., R-Williamsburg.

A similar bill cleared the Senate but died in the House last year.

Under the bill, a petition to vacate a conviction must contain “specific facts indicating that relevant forensic scientific evidence was not available at the time of the petitioner’s conviction ... through the exercise of reasonable due diligence by the petitioner or that discredited forensic scientific evidence was presented at the petitioner’s conviction...”

The bill would apply only for defendants convicted on pleas of not guilty or an Alford plea. It has a sunset date of July 1, 2024. It would expire on that date unless re-enacted.

The Netflix video crew was recording the proceedings for a documentary series on wrongful convictions, according to a leader with the crew.


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