What’s Love Got to do with It?
Case Selection through the Eyes of Aristotle,
Neil DeGrasse Tyson and Tina Turner
Friday, April 1, 2016
Robert T. Hall
Hall & Sethi, PLC
11260 Roger Bacon Dr, #400
Reston, VA 20190
Phone: 703-925-9500
Email: [email protected]
www.hallandsethi.com
ROBERT “BOB” T. HALL graduated from Georgetown University with his JD in 1964 and served as
associate counsel to the U.S. Senate District of Columbia Committee from 1964 to 1966. On May 30,
1966, he entered the private practice of law and thus began his journey toward becoming one of the
most respected trial attorneys in the country. Mr. Hall limits his practice to cases involving catastrophic
injury and death. In almost five decades Mr. Hall has taken hundreds of cases to trial. In addition to the
Virginia Circuit Courts, Mr. Hall has appeared before the Virginia Supreme Court, the United States
District Courts for the Eastern and Western Districts of Virginia and the District of Columbia, and the
United States Courts of Appeals for the Fourth Circuit.
He believes in compassionate and dedicated representation. The results he has obtained have often led
to changes in the law that benefit everyone in the Commonwealth of Virginia. Nationally recognized for
his pro bono work on behalf of wrongfully incarcerated individuals, Mr. Hall has served as an expert
witness on legal matters in over a dozen cases. He has written extensively on the topics of grief and loss,
damages, trial evidence, and discovery, and gives regular lectures at meetings of the American
Association for Justice (AAJ), the Virginia Trial Lawyers Association (VTLA), as well as various colleges and
universities in the Metro DC area. An active member of his community, Mr. Hall recently lectured at a
drug intervention seminar for Fairfax County Public Schools and is an active supporter of the local arts in
Northern Virginia. In 2009, he was awarded the VTLA's Lifetime Achievement Award.
http://www.hallandsethi.com/robert-t-hall.html
Robert T. Hall1
Hall and Sethi, PLC
11260 Roger Bacon Drive
Suite 400
Reston, VA 20190
[email protected]
April 2, 2016
What’s Love Got To Do With It? Case Selection
Through the Eyes of Aristotle, Neil DeGrasse Tyson and Tina Turner
Good afternoon distinguished guests, members of the Virginia Judiciary, members of the
Virginia General Assembly and my colleagues in VTLA, of whom I am incredibly fond and proud. You
represent the finest example of my topic today.
Let me annotate the title of my topic just slightly. It is, as advertised, about case selection, but
not as we traditionally approach that subject. You will hear nothing about:
1. Identifying the really good cases which will fund your retirement plan.
2. Nor, about conducting the pre-retention interview to weed out from the client prospects the
ones who have expectations you can’t fulfill.
3. Nor, about marketing you and your firm, or how to negotiate fees with the clients you hope to
have retain you.
There are plenty of CLEs on those subjects and many of you already have the answers to those
questions.
“At his best, man is the noblest of all animals;
separated from law and justice he is the worst.” - Aristotle
Today I want to talk about the cases we should consider taking to nudge the “rule of law”
beyond aspiration and closer to reality for those who, for a variety of reasons, are least able to protect
themselves. When we took our oath as attorneys, we not only committed to support and defend the
constitutions and laws of the United States and Virginia, we swore to “execute the office of attorney at
law to the best of our ability” and therein lies our obligation to look beyond the boundaries of law as a
business and include the law as an instrument to do justice.
My approach will be familiar – referencing case examples in which colleagues undertook difficult
and perhaps novel cases for the principal purpose of righting a wrong. Being admitted to practice law
invests us with vast powers to seek remedies, to right wrongs, and, failing that, to expose wrongs for all
to see.
1
Who is solely responsible for the contents of this talk. The opinions expressed herein do not necessarily reflect
the positions of VTLA or its Officers, Directors, Staff or Members.
1
For years, our members have been jumping into the breech to help those in need of quality legal
services and have frequently done so when the only prospective compensation was going to be a
heartfelt and sincere “Thank you!”
Let’s get going.
George E. Allen, Sr.
Ten years after Brown v. Board of Education became the law of the land, tensions still ran high over
school integration in Prince Edward County.
Fred Wallace, a young black Harvard law student, was spending his vacation working for a black law
firm in Richmond. One day his assignment was to deliver a message to a county judge in Farmville. A
federal judge had just ruled that Prince Edward Schools could not provide tuition grants for white
students to attend white-only schools. When Wallace arrived at the courthouse the main door was
locked, but he found a side door open and entered. Police, observing a black stranger wandering the
halls of the courthouse, stopped him and would not allow him to proceed. Wallace insisted he was on a
lawful mission for his employer law firm, but was advised he would be put under arrest. He resisted.
After the dust settled, Wallace, now a defendant, faced seven charges of resisting arrest, curse and
abuse, disorderly conduct, assault on a police officer and kicking, hitting or wounding Deputy Sheriff
J.W. Overton – a felony.
Had Wallace been convicted of the felony, his law career would have come to an abrupt end.
The Dean of the University of Virginia Law School, having been contacted by a colleague at Harvard,
asked a prominent Virginia lawyer to take the case, and George E. Allen, Sr. entered an appearance
despite the threat that it might end his firm’s ability to attract civil clients in a broad geographic area.
Attorney Allen first asked members of the Prince Edward Bar to join him in Wallace’s defense. All turned
him down. His Motion for a Change of Venue was refused. Before the case came to trial attorney Allen
negotiated a plea bargain to three minor misdemeanors, and then paid the fine himself. Wallace
returned to school.
In a lengthy thank you letter, Wallace wrote “I, of course owe you my life and my future. Without
your help, I have little doubt that I would now be in jail and that all the years of my training would be
wasted…My only hope is that I can prove worthy of the faith and interest you have shown in me.”
Shortly thereafter George E. Allen, Sr. was awarded the first Award for Courageous Advocacy by the
American College of Trial Lawyers.
The apple did not fall far from the tree. In the mid-1960s his son, Wilbur Allen, handled a pro
bono case in which he sought to give prisoners in the Virginia penal system the freedom to practice their
religion.
William Howard had been removed from the general prison population and placed in the maximum
security unit in solitary confinement for a period of three years as a result of his efforts to practice his
Muslim faith and his refusal to identify to prison authorities other inmates who were Muslim and wished
to follow the tenets of their religion as well,
Plaintiff, represented by Wilbur Allen, filed a petition for a writ of habeas corpus, seeking release
from the maximum security unit and return to the general prison population, or discharge from the
Virginia prison system altogether. The Petition was denied by the U.S. District Court. An appeal was
2
noted, and the United States Court of Appeals for the Fourth Circuit reversed the judgment of the
District Court and remanded the case with directions to return petitioner to the general prison
population and to make reasonable accommodations so that he could exercise his religion, resulting in
the case Howard v Commonwealth of Va., 265 F. 2d 428, 430-31(1965):
“We hold only that where a prisoner, acting not surreptitiously but frankly and candidly through
proper channels, requests arrangements for religious services but refuses to divulge the names
of the other interested prisoners, and as a result is summarily confined in the maximum security
ward for a period of years, the only reasonable conclusion is that he is being arbitrarily
punished. A prisoner is not bereft of all his rights. Included among those retained is an
immunity from punishment for making a reasonable attempt to exercise his religion, even a
religion that to some of us may seem strangely confused and irrational. “
If one fast forwards to 2008, Rodney Smolla, then Dean of the Washington and Lee University School
of Law and George E. Allen’s grandson, W. Coleman Allen took on the New York Times for a story it
carried suggesting that Senator John McCain had carried on an illicit relationship in 1999 with their
client, a female lobbyist who had matters pending before McCain’s Senate Commerce Committee. Their
case, Iseman v. New York Times, marked the first occasion, the New York Times had ever printed a
retraction of a story as part of an agreed settlement of a defamation claim.
“The sanctity of marriage of two people deeply in love –
but then, what’s love got to do with it.” With thanks to Tina Turner
Phil Hirschkop and Bernie Cohen
The turbulent 1950s blended into the unsettled 1960s, and in the mid-1960s, two young members
of VTLA practicing together accepted the ACLU’s invitation to take over an extremely important case.
They had been out of law school for all of three years at that time.
In 1959, five years after Plessy was overruled, Richard Loving, a white man, and Mildred Loving, “a
colored woman,” were convicted of violating Virginia’s criminal laws against racially mixed marriages.
The trial judge in the case, Leon M. Bazile, echoing Johann Friedrich Blumenbach's 18th-century
interpretation of race, wrote:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on
separate continents. And but for the interference with his arrangement there would be no cause
for such marriages. The fact that he separated the races shows that he did not intend for the
races to mix.”
As the judge was writing his opinion, 150 miles to his north a 10-year-old piano prodigy, the product
of a wartime union between a black U.S. Army sergeant and a white Hungarian woman, was rehearsing
the piano part of Cesar Franck's Symphonic Variations for piano and orchestra, music he would perform
with the Philadelphia Orchestra in the coming weeks. His name was Andre Watts and his message to the
faithful must have been: “God works his wonders in mysterious ways”.
In 1966 the Virginia Supreme Court, in an opinion authored by Justice Carrico, upheld those
convictions, holding that the 14th Amendment Equal Protection Clause favored by the Supreme Court in
3
Brown did not apply to mixed marriage cases because the Court viewed "Marriage, as creating the most
important relation in life, as having more to do with the morals and civilization of a people than any
other institution, has always been subject to the control of the Legislature."
The U.S. Supreme Court overturned the Lovings' convictions in a unanimous decision (dated June 12,
1967), dismissing the Commonwealth of Virginia's argument that a law that forbade both white and
black persons from marrying persons of another race and providing identical penalties to white and
black violators could not be construed as racially discriminatory. The court ruled that Virginia's antimiscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the
Fourteenth Amendment.
Chief Justice Earl Warren's opinion for the unanimous Court held that:
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and
survival.... To deny this fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so directly subversive of the principle
of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens
of liberty without due process of law. The Fourteenth Amendment requires that the freedom of
choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the
freedom to marry, or not marry, a person of another race resides with the individual and cannot
be infringed by the State.”
The court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate
white supremacy.
The two very young VTLA members were Phil Hirschkop and Bernie Cohen, and their 1967 victory in
Loving v. Commonwealth had a long reach. Some 48 years later when the U.S. Supreme Court
overturned prohibitions on same sex marriage in Obergefell v. Hodges, the Court cited the Loving case
for the proposition that “the Court has long held the right to marry is protected by the Constitution.”
Loving v. Virginia, 388 U. S. 1, 12 (1967). Yes, Ms. Turner, “What’s Love Got To Do With It?”
It’s as though I can hear the late Justice Scalia in dissent: “Love forms no basis for this evisceration of
the Constitution. It is nothing but a second hand emotion”.
Phil Hirschkop and John Lowe
In the mid-60s, members of the Virginia General Assembly and several state commissions had
encouraged the University of Virginia to consider full integration. African Americans had fought for
access to the University and, starting in the late 1950s, UVA had begun admitting small numbers of
African-American students.
In early 1969, the Board of Visitors voted to gradually provide greater access for women to all parts
of the University. During a transitional period of one year, they planned to admit the qualified wives and
daughters of staff members. The University proposed increasing the number of female students over 10
years and capping their number at 35 percent.
Mere months later, four women—Virginia Anne Scott, Nancy Jaffe, Nancy L. Anderson and Jo Anne
Kirstein—represented by VTLA and American Civil Liberties Union lawyers Phil Hirschkop and John Lowe
(Law ’67), brought a lawsuit against the University. The plaintiffs claimed that the University “severely
discriminates against women in their admissions policies” and petitioned for the college to admit
4
women. A three judge panel sitting in the United States District Court for the Western District of Virginia
ruled that it was illegal for the University of Virginia to exclude women from enrollment in its law school.
The court mandated full coeducation within three years. The court also granted the plaintiffs a
temporary injunction to study in the College of Arts & Sciences in the fall of 1969 rather than having to
wait an additional year. Virginia Anne Scott enrolled that semester.
John Lowe did not rest on his laurels.
In 1974, Jeff Bigelow was the editor of a small student underground newspaper at the University of
Virginia called the Virginia Weekly. It was not radical -- just independent. It ran an ad paid for by the
Women's Pavilion of New York City for abortions to be performed in New York City where they were
legal at that time.
The Commonwealth's Attorney charged Bigelow with violating Virginia's statute against promoting
or procuring an abortion, even though any abortions would have been performed in New York, where
they were legal. Lowe agreed to represent Jeff pro bono and fought the charges in every court. He was
convicted and the Supreme Court of Virginia upheld the conviction.
Lowe appealed to the Supreme Court of the United States and that Court granted certiorari. In
1986, he argued and won the case -- Bigelow v. Virginia, 421 U.S. 809 (1975). He never received any fee
for the case and paid his own way to Washington to argue the case. But who would argue about that if
it led to arguing a case in the Supreme Court?
John Lowe - again
In 1976, the National Association of Criminal Defense Lawyers asked for volunteers to represent
Native Americans being prosecuted in South Dakota in a series of cases where local lawyers were
unwilling to accept court appointment because of fear of loss of their client base due to adverse
reaction to their taking the defense. There was a national pool of lawyers who volunteered and Lowe
was one of them, as a member of the NACDL.
As luck would have it, he drew the assignment of defense counsel for one of two Native Americans
accused of murdering two FBI agents on the Pine Ridge Indian Reservation in South Dakota. The two
defendants were in custody and trial was set. In what may be one of the odd couple pairing of defense
counsel in history, the second defendant was being defended by Bill Kunstler.
The trial was moved to Cedar Rapids, Iowa, after a change of venue had been granted. He and
Kunstler had no illusions about the problems of prejudice against two Native Americans accused of
murdering two young FBI agents, even in Cedar Rapids, but they tried the cases using traditional criminal
defense techniques and all the advocacy they could muster. After a six week trial, the jury returned
verdicts of not guilty on all counts. As John noted, “The deaths of those FBI agents were so tragic. Yet,
these two Native Americans simply did not kill them. But the fact that they could obtain a fair trial
under those circumstances makes that case stand out for the integrity of the American jury system.”
Fast forwarding to more recent times:
Richard Armstrong and Deborah Wyatt
In the early morning hours of March 15, 1997, Frederick Gray was shot and killed by the police. The
only witnesses to the shooting were the officers themselves. VTLA members Richard Armstrong and
5
Deborah Wyatt had only the written statements given by the officers to prove gross negligence. Code
Section 8.01-404 severely restricts the use of ex parte statements of parties in a wrongful death case,
but Richard and Deborah got them admitted and the Supreme Court of Virginia affirmed (Gray v.
Rhoads, 268 Va. 81 (2004)) because they offered the statements as party admissions in their case-inchief, not to contradict the officers during their trial testimony. The verdict? $3.5 million compensatory
and $1 million punitive damages.
Lisa Bertini
Our stalwart, Lisa Bertini, won a federal court victory on behalf of a young female Virginia Beach
lifeguard, a victory obtained despite strong predictions the case would fail. While overall membership in
the Virginia Beach Lifeguard Service was roughly 50/50 by gender, of the top twenty-one leadership
positions, all but one was held by a male. Lisa’s client had been passed over at least twice for a
leadership position instead given to males despite her obvious qualifications. When she complained
about her treatment to the Equal Employment Opportunities Commission, she was laid off. Lisa
obtained a federal court victory before a conservative judge, and her jury verdict sent a strong message
to her client’s employer, and other employers similarly situated, that leadership positions in trade,
commerce and industry are not the exclusive province of the good ole boys’ clubs.
Billy Breit/Kevin Martingayle
Billy Briet, as client, with Kevin Martingayle as counsel, engaged in protracted litigation to establish
a fundamental right - that children have a constitutionally protected right to have a relationship with
their biological parent, a case cited all over the country in assisted conception cases.
Frank Dunham
Our late, beloved member, Frank Dunham, left a very successful private practice to take an
appointment as the Federal Public Defender for the Eastern District of Virginia, and in that capacity
obtained an important ruling from the U.S. Supreme Court, overruling a Fourth Circuit decision.
Although Congress authorized the detention of combatants in the narrow circumstances alleged in the
case, “due process demands that a citizen held in the United States as an enemy combatant be given a
meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.”
Justice Souter, joined by Justice Ginsburg, joined with the plurality to conclude that on remand, Hamdi
should have a meaningful opportunity to offer evidence that he was not an enemy combatant. Who
amongst us would have taken on that case?
Jeffrey Fogel
Jeffrey Fogel, a brand new member, took on the City of Charlottesville and won a ruling that a city
ordinance seeking to bar panhandlers from the mall in Charlottesville because they “created a traffic
hazard” was unconstitutional. Jeff, since we now know that money is speech under Citizens United, were
you able to argue that the panhandlers were engaged in constitutionally protected activities because
they were only soliciting speech? I commend to you Jeff’s fascinating article in the latest issue of the
VTLA Journal.
6
Vic Glasberg
VTLA member Vic Glasberg has a long history of taking cases that mean a great deal to the rule of
law and the rights of individuals, but don’t necessarily impress his bankers. He’s one of my heroes.
Vic spent four years trying to persuade the Virginia Supreme Court to promulgate Padilla warnings
for aliens at risk of deportation if they pled guilty to lesser offenses than charged.
Padilla v. Arizona holds that counsel are under a professional obligation to inform a criminal
defendant of the possible adverse immigration-related consequences (such as deportation) of a guilty
plea.
Prince William County prosecutors were dropping their demand for jail time, thus depriving
defendants of the right to counsel. Then, without counsel, they would be offered a deal too good to
refuse: plead guilty, pay a modest fine and walk out of court a free man (right into the arms of waiting
ICE agents). After Vic wrote to Chief Justice Lemons, new rules were promulgated. State judges now
give the requisite warnings before accepting any guilty plea, just as has been done in federal court since
2011. It took Vic 4 years at no fee to accomplish the obvious.
Vic - again
Vic also represented a transgender inmate in the Virginia Correctional system over a period of ten
years, getting two judicial reversals and establishing the proposition that the Department of Corrections
must treat Gender Identity Disorder as any other medical/psychological problem. After he secured the
second reversal, rather than face the prospect of providing the inmate a sex-change operation, the
Department of Corrections paroled the client.
And once more
During the presidency of George W. Bush, Vic joined national ACLU counsel in a case for money
damages for a victim of rendition by the United States government: El-Masri v. Tenet, #1:05-cv-1417,
not because he thought there was a snowball’s chance that he would win a damages suit against US
officials for procuring the torture of his client, but because it was necessary to say NO to the
government on this point.
If I had time, I’d tell you the story of Mohammed Acktiar, who was brought to U.S. authorities in
Afghanistan by a bounty hunter. The bounty hunter claimed that Acktiar had engaged in a firefight with
U.S. troops. The bounty hunter took his reward and disappeared into the background. Acktiar went to
Guantanamo where he was held for over eight years as an enemy combatant. My buddy Dicky Grigg
of Austin, Texas volunteered to represent him and after 8 months of intensive effort to find out the basis
on which Acktiar was being held and the evidence against him, Dicky received a call at his office that his
plans to come to Guantanamo for another visit with his client had been scrubbed. Acktiar had been sent
to live in Yemen – a rendition.
Over those 8 years, the government built a 25 million dollar bricks and mortar prison facility at
Guantanamo (Contractor: Brown, Kellogg, Root, a Haliburton subsidiary) in order to be able to “hold
more humanely” those prisoners for whom they had inadequate evidence to take them to trial and who
they might hold for the balance of their lives.
7
Ann Jones
Ann Jones continues her dedicated and often difficult work on behalf of birth-injured children,
obtaining for them the full compensation intended in the enactment of the Virginia Birth-Related
Neurological Injury Act. See Kavanaugh v. Va. Birth-Related Neurological Injury Comp. Program, 60 Va.
App. 440 (2012).
Ken Labowitz
Ken Labowitz started his notable work on behalf of clients who were HIV positive or suffering from
AIDS over twenty years ago. His first client was five years old and had contracted AIDS from her parents.
Despite the scientific evidence that she posed no danger to fellow students in her school because the
disease was not airborne or transmitted by close contact, she had been expelled. Thanks to Ken’s
devoted efforts, science prevailed over fear and she was readmitted.
Colleen Quinn
Collen Quinn has successfully entered the thicket of cases of first impression which arise from our
legal treatment of other-than-traditional methods of conception. In the Henrico County Circuit Court,
she persuaded the trial court to enter an Order of Parentage as to a single genetic dad who had used a
gestational carrier, together with an Order of Non-Parentage as to the non-genetic gestational carrier
(donor egg was used), removing the gestational carrier from the birth certificate and awarding the single
dad parentage without having to do a single parent adoption.
In the Richmond Circuit Court, she obtained an Order of Parentage recognizing the genetic mother
as having equal legal parents to the twins as the gestational mother. Donor sperm had been used with
the genetic mother’s eggs to form embryos implanted into gestational mother.
Finally, also in the Richmond Circuit Court, she obtained an order granting full faith and credit to a
domesticated Maryland Pre-Birth Order declaring same-sex fathers the legal parents of their child via a
gestational carrier prior to the child’s birth. This was before the legalization of same sex marriages in
Virginia. She obtained a similar result in domesticating a California Judgment declaring same-sex
mothers both the legal parents of their child where one mother gestated the child using her own eggs
and donor sperm.
Tom Shuttleworth and Bob Ruloff
In advance of the Obergefell v. Hodges same-sex marriage case, Tom Shuttleworth and Bob Ruloff
filed an action in the United States District Court for the Eastern District of Virginia, Norfolk Division on
behalf of Timothy Bostic and Tony London to get the Virginia law impediments to their marriage
declared unconstitutional. The opinion of the Fourth Circuit described their efforts this way: Bostic and
London “brought this lawsuit to challenge the constitutionality of Virginia Code sections 20–45.2 and
20–45.3, the Marshall/Newman Amendment, and any other Virginia law that bars same-sex marriage or
prohibits the State's recognition of otherwise-lawful same-sex marriages from other jurisdictions”
(collectively, the Virginia Marriage Laws). The Plaintiffs claim that the “inability to marry or have their
relationship recognized by the Commonwealth of Virginia with the dignity and respect accorded to
8
married opposite-sex couples has caused them significant hardship and severe humiliation, emotional
distress, pain, suffering, psychological harm, and stigma.”
The district court held that “the Virginia Marriage Laws were unconstitutional” on February 14,
2014. Bostic v. Rainey, 970 F.Supp.2d 456, 483 (E.D. Va. 2014). It therefore denied the Defendants’
motions for summary judgment and granted the Plaintiffs' motion. The district court also enjoined
Virginia's employees from enforcing the Virginia Marriage Laws. Id. at 484. The Court then stayed the
injunction pending resolution of the defendants’ appeal. On July 28, 2014, the Fourth Circuit affirmed
the trial court, and the Defendants’ appeal was stayed pending decision in the Obergefell case.
Nathan Veldhuis
Nathan Veldhuis decided to take up the cause of Cesar Chumil who had been a patient at Western
State Hospital, and for over 20 years he had been secluded from the general patient population. Born in
Guatemala in 1950, Spanish-speaking Mr. Chumil had been in and out of mental health institutions since
he was 28. At Western State, he was provided no treatment in his native language and knew little or no
English, so he became frustrated and agitated at his condition. Instead of providing him treatment in his
native language, they provided him no treatment and handled him by seclusion, in violation of federal
and state law.
At one time, he was transferred to Eastern State Hospital where he could receive therapy in his
native language, and when he did, his condition improved, but when his Spanish-speaking therapist was
reassigned, Mr. Chumil was returned to Western State where his condition again deteriorated. He was
then transferred to the Forensic Unit at Central State Hospital, where he was severely beaten by
members of the staff before being returned to Western State, where he was placed in a seclusion pod
until the issuance of a 1999 United States Department of Justice report, which referenced Mr. Chumil's
seclusion as an example of WSH's inappropriate, excessive, and unprofessional use of seclusion and
restraint. The report ordered an immediate end to the use of seclusion ordered for the convenience of
staff or as an alternative to treatment.
His ability to communicate was further diminished after his teeth were removed on
March 29, 2005, and he remained without dentures until his death in prison.
`
While WSH maintained that Mr. Chumil was too dangerous to interact with other patients or
staff, he was allowed to come out of his seclusion cell for visits to external health care providers and
visits with his family, including overnight visits and day visits involving excursions into public areas, such
as restaurants and retail stores. Except for these occasional furloughs, Mr. Chumil remained in the
seclusion in which he had spent the last 18 years of his life, with no regular contact with anyone who
spoke his language.
In 2004, an unidentified source informed the Legal Aid Justice Center in Charlottesville of Mr. Chumil
and his situation. The Mental Health Law Clinic at UVA Law School began to investigate.
Alex Gulotta and Nathan Veldhuis filed a Formal Human Rights Complaint against Western State
Hospital. Ultimately, a multi-day fact finding hearing was held in front of the Local Human Rights
Committee. WSH appealed to the State Human Rights Committee, where another series of hearings
took place. The State Human Rights Committee ultimately upheld the findings and recommendations of
the Local Human Rights Committee. WSH then appealed to the Commissioner of the then Department
of Mental Health, Mental Retardation and Substance Abuse Services. After meeting with the
9
Commissioner and others, it was decided to move him to Northern Virginia Mental Health Institute in an
effort to provide a less restrictive environment and to transition him into the patient population.
He was moved and died two weeks later of undiagnosed colon cancer. He was able to spend the
last two weeks of his life with his mother being able to see him every day—she died not long after.
“Laws are spider webs through which the big flies pass
and the little ones get caught.”
- Honoré de Balzac
I need to shift gears. The significant efforts by these civil trial counsel to litigate issues of
considerable importance to their clients and the community, while mirrored in the intensity of efforts in
criminal cases, is unfortunately not mirrored in results. While there were many, many able trial counsel
who spent endless hours trying to force the government to meet its commitments to the rule of law, the
criminal bar faces almost Sisyphusian obstacles to achieving full justice for their clients, and it likely
reflects the intersection between the legislative and judicial branches of our government.
Today’s Sermon
When I was a younger man I owned and operated a dive shop while I went to law school at night.
One of our dive trips during class breaks took us to Jamaican waters and after a day of scuba diving I
asked a local to show me how to snorkel for warm water lobster. Coral reefs situated in 10-30 feet of
water offered them home. They could be seen with their heads sticking out from coral outcroppings.
The warm water lobster does not have the claws we associate with the Maine lobster, so the trick was
to grab them with a bare hand before they scooted further back into their coral home.
Jonathan, my guide, had one important piece of advice. Each lobster has two long antennae. Only
grab the lobster when both antennae are in sight. If you see a lobster with only one antenna showing,
avoid him. The second antenna is occupied back in the hole, checking to see what the animal life behind
him is up to. It’s usually a moray eel.
I have never been involved in a death penalty case that I didn’t get the sense that the judge or
judges were looking at me with only one antenna while the other one was checking on what the
legislature might do to him or her if he granted the prayed for relief.
Virginia Circuit Court Judges are elected to the bench by the Virginia General Assembly for eight year
terms. Supreme Court Justices are similarly elected for 12 year terms, and judicial salaries are set by the
legislature. If one is a sitting judge, it’s important not to make enemies in the legislature.
Some political interference with judicial independence isn’t even thinly disguised.
Judge James L. Berry of the Circuit Court of Winchester, Virginia had refused to renew the concealed
carry (gun) permit of Ollie North, citing North’s involvement in the Iran Contra affair.
Jeff E. Schapiro, Staff Writer for the Richmond Times-Dispatch reported in his Saturday, February 22,
1997 article titled "Legislators fail to elect justice of Supreme Court," that Winchester Circuit Judge
James L. Berry was backed by the House, but the Senate tapped another lawyer, in part, as retaliation
for Berry's refusal to renew the concealed weapons permit he granted Oliver L. North, the GOP U.S.
10
Senate nominee in 1994. "That was my strategy all along," said Sen. H. Russell Potts Jr., R-Winchester,
who led the charge against Berry.
Judge Rosemarie Annunziata of the Virginia Court of Appeals attracted the attention of legislators in
a dissenting opinion she authored in a child custody case when she argued that the majority of the court
had disregarded a longstanding rule that in a child custody dispute the litigant’s gender identity be
considered only one factor amongst many, not a dominant or controlling factor.
Steven Ginsberg and Michael D. Shear, Washington Post Staff Writers, reported on January 16,
2003:
“RICHMOND—Republican delegates have delayed the confirmation of a state Court of
Appeals judge so they can question her further about some of her judicial opinions, including
one involving a lesbian mother, as the party pushes for closer scrutiny of judges’ decisions.
The House Courts of Justice Committee, which reviews judges up for confirmation by the
legislature, has asked Judge Rosemarie Annunziata to return for a second round of questioning
Monday. The former Fairfax County Circuit Court judge originally appeared before legislators in
November, when several questioned her about a case in which she ruled that a double standard
was applied to a mother who had a lesbian relationship.”
While Judge Annunziata was renewed for another term, legislators made it clear that decisions
which appeared to favor gays or lesbians did not sit well with them.
In the 1980s, I handled a post-conviction death penalty habeas corpus proceeding for James T. Clark,
who had been convicted of capital murder and sentenced to death. After extensive evidence was
offered over a four day hearing in mitigation of punishment, evidence which could have been discovered
by Clark’s trial counsel but wasn’t, Judge Richard Jamborsky granted Clark’s Petition for Habeas Corpus
as to his sentencing trial and commuted his sentence to life imprisonment without parole.
What followed was unprecedented and unexpected.
State Senator Warren Barry from Fairfax County, where the crime occurred, wrote Judge Jamborsky
that he, Barry, would see to it that Jamborsky would never get another term on the bench.
The Virginia Supreme Court granted the Commonwealth an expedited appeal, Judge Jamborsky was
reversed, and a new death date was set.
The Attorney General’s office filed a grievance against Judge Jamborsky with the Virginia Judicial
Inquiry and Review Commission, complaining that even though it had been counsel for the
Commonwealth throughout the Habeas Corpus proceeding, Judge Jamborsky owed a duty of notice to
the County’s Commonwealth’s Attorney before commuting the sentence. While the grievance was
summarily dismissed, the effort at intimidation did not go unnoticed.
We renewed Clark’s Habeas in the United States District Court for the Eastern District of Virginia.
Judge Albert V. Bryan, Jr. reviewed the hearing records from the state habeas and again granted the
petition and the Fourth Circuit affirmed. Clark lived out the balance of his life in prison.
Because the federal courts disposed of the Clark case via unpublished opinions, there was little to
reflect the commutation of his punishment. To this date the original Clark case, the one in which he had
been sentenced to death, is repeatedly cited by the Virginia Supreme Court as authority for the
proposition that the sentence of death imposed on other defendants was not disproportionate to the
11
sentence imposed on Clark, despite the fact that the ultimate sentence imposed on Clark was life, not
death.
The difficulty getting a meaningful review of a conviction and sentence in a criminal case seems
directly proportional to the crime committed and the sentence imposed. Facts which might result in
reversal of a misdemeanor conviction would have no traction in a death penalty case.
Let’s look at this matter retrospectively for a minute.
When we took our oath of office we swore to uphold the Constitutions and laws of the United
States and the Commonwealth of Virginia
Both the Constitution of the United States and the Virginia Constitution embody a Bill of Rights, each
of which contains provisions to protect individuals against abuses of government power.
Take the Fourteenth Amendment to the Constitution of the United States and its provision that no
state “shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Look at the word order. No state shall deprive any person of “life, liberty or property” without due
process of law. Aren’t life, liberty and property rights naturally hierarchical? Without life, liberty lacks
meaning. Without liberty, property may be owned, but its enjoyment denied. Therefore, doesn’t life
deserve the greatest degree of protection from unlawful governmental conduct? Next comes the
protection of liberty from unlawful governmental compromise, and lastly comes the protection of
property rights.
What is Virginia’s hierarchy of rights?
The Virginia General Assembly created the Court of Appeals effective January 1, 1985. Prior to its
enactment, a great deal of debate ensued over what the court should have jurisdiction and how one
would perfect an appeal. When the bill finally cleared both houses and was signed into law, “property”
matters such as alimony and child support payments ordered in the trial court would be reviewable in
the new court by an appeal of right, as would workers compensation awards. If one were incarcerated,
however, that appeal would be discretionary with the court. Property rights, it seemed, trumped liberty
interests in the new court.
And, life?
Just before the new Court was to be created, I appeared on a CLE panel with a sitting Supreme Court
of Virginia Justice and told our audience that it appeared that Habeas Corpus proceedings in death
penalty cases might now have a second set of appellate eyes, the Court of Appeals. I observed His Honor
taking notes, and I anticipated he would respond with a comment. He didn’t, but at the next session of
the legislature, the Court of Appeals was divested of its capital case habeas jurisdiction.
What has happened since the Clark case was decided? In my Clark case, the Circuit Court of Fairfax
had jurisdiction to hear our habeas petition and award an evidentiary hearing. While we didn’t keep
Clark’s Writ of Habeas Corpus in the state court system, it was again awarded in the federal court on the
record made in the state court evidentiary hearing. By 1995, the General Assembly had amended the
state habeas statutes to divest the circuit court of original jurisdiction in death penalty habeas cases.
Starting in 1995 original jurisdiction in death penalty habeas cases lay in the Supreme Court, not in
the trial court, and petitioners could not get an evidentiary hearing unless the Supreme Court of Virginia
12
ordered one and sent the case back to the trial court for that purpose. In the 17 years between 1995
and 2012, the Supreme Court of Virginia only granted evidentiary hearings five times, and of those five
occasions, only one Writ of Habeas Corpus was granted, and that on the sentencing phase, not the guiltinnocence phase. Eighty-two death row inmates were executed in that period.
Additionally, the 1995 enactments imposed strict time limits – 60 days from one of three events:
The U.S. Supreme Court’s denial of certiorari from a direct appeal, the expiration of the time for filing for
certiorari, or, if the U. S. Supreme Court has awarded certiorari, 60 days from its affirmance of the state
court’s decision. On the rare occasion that the Virginia Supreme Court awards an evidentiary hearing,
there are strict deadlines within which the hearing must be held and fixed times for the filing of the trial
court’s findings of fact and conclusions of law, which are not binding on the court.
In every non-capital felony case, the circuit courts have original jurisdiction over habeas corpus
proceedings and the power to award evidentiary hearings. The Court of Appeals also has jurisdiction to
issue writs of habeas corpus in any case over which the Court would have appellate jurisdiction,
including non-capital felonies. Under the Virginia scheme, life, which seems deserving of the highest
protection from abuses of government power, has the least protection.
As for property rights trumping liberty and life interests, let’s fast forward to late 2015. Starting
January 2014, the Special Committee on Criminal Discovery Rules met in six plenary sessions to consider
and recommend amendments to the criminal discovery rules. The Committee, chaired by retired Judge
Thomas D. Horne and made up of prosecutors, defense attorneys, police and sheriff’s department
representatives, members of the General Assembly, professors and court clerks, set as its principal goal
to provide “reciprocal discovery that would avoid ‘trial by ambush’ by providing both sides with more
complete information than the current rules require”.
On December 2, 2014, the Committee presented its Report to the Chief Justice and Justices of the
Supreme Court of Virginia. The Report included proposed language for amendments to statutes and
rules to carry out its recommendations. On March 3, 2015, the Supreme Court of Virginia released the
Report to the public and invited comment from the public on the recommendations, which comments
were to be received by June 30, 2015. On Friday, the 13th of November, the Supreme Court of Virginia
entered an Order which stated in its entirety:
“Having considered the Committee's report and the public comments submitted in response
thereto, the Court declines to adopt the Committee's recommendations.”
Subsequently, on January 29, 2016, with the legislature in session, the Criminal Law Subcommittee
of the House Courts of Justice Committee defeated a bill to codify the recommendations in the report.
Many of us thought that the Court’s sudden interest in criminal discovery rule reform reflected
concern over the mounting number of exonerations.
On February 28, 2011, Professor Brandon Garrett of the University of Virginia Law School published
his critically acclaimed book Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Reviewing
the first 250 exonerations made possible through DNA, Professor Garrett analyzed our vaunted system
of criminal justice which facially incorporated numerous constitutional protections against wrongful
convictions – and he did so on a case-by-case basis. The results were unexpected and troubling.
Wrongful convictions were the byproduct of evidence corrupted by suggestive eyewitness procedures,
coercive interrogations, unsound and unreliable forensics, shoddy investigative practices, cognitive bias,
and poor lawyering. The wrongfully convicted included a significant number who had confessed to the
crime or entered a guilty plea to it. Plea bargains didn’t necessarily reflect a balanced assessment of fact
13
and law by counsel on each side, but a choreography of risk assessment. “If I plead guilty to non-capital
murder and avoid the death penalty, I may spend the rest of my life in prison, but I’ll be alive to see my
family.”
On Wednesday, February 3, 2016, the National Registry of Exonerations based at the University of
Michigan Law School, reported an aggregate of 1,733 exonerations including 41 in Virginia of which only
17 were through DNA. The 1,733 exonerations included 221 who had “confessed” to the crime. The
total time lost to wrongful convictions and incarcerations for the first 1,700 men and women wrongfully
convicted aggregated nearly 15,288 years in prison– an average of 9 years each. 39% served 10 years or
more; 59% served at least 5 years.
The rejection of the proposed amendments to the rules of criminal discovery sends a clear message.
Virginia is more solicitous of property rights than it is of the right to life and liberty.
If you have a dispute with a property at risk, you have the right to extensive discovery so you can
forecast what the witnesses are expected to say, the exhibits that may be introduced, and assess your
risks. However, if you are charged with a capital crime or other crime, your right to know what’s coming
at you is entirely dependent on the discretion of the prosecutor, and showing their hand is not a natural
default position. The presumption of innocence doesn’t buy you the right to defend your life or liberty
as completely as the right to protect your fortune.
A 2002 Joint Legislative Audit and Review Commission’s “Review of Virginia’s System of Capital
Punishment” stated:
“In terms of judicial review, the study found that the Virginia Supreme Court rarely
overturns the decisions of the trial courts in capital murder cases. Moreover, the Court has ever
found the death sentence of a condemned inmate to be excessive. At later stages of the review
process, a substantial number of claims of inmates are not reviewed on the merits because of
the Virginia Supreme Court’s procedural rules and related federal law. While both the State and
federal courts have standards for determining whether defaulted claims can be reviewed on the
merits, these standards are not easily achieved. As a result, approximately one-third of the
claims that are raised by inmates during later stages of judicial review are never considered on
their merits. Whether this is acceptable public policy is a question for the General Assembly.”
A 2013 study by the ABA of Virginia’s Capital Punishment practices observed:
“Virginia permits an execution date to be scheduled once a state habeas petition has
been denied. This practice denies Virginia death row inmates the full year for research,
preparation, and filing of their federal petition that would otherwise be available. Because
Virginia cannot impose this restriction on inmates not sentenced to death , this effectively
provides less due process to those under a death sentence than that which is afforded to non capital inmates in Virginia.”
In a review of post-conviction relief awarded by the courts in death penalty cases, both Virginia and
the Fourth Circuit came in dead last for post-conviction relief awarded. For some in politics and in the
courts, this is quite acceptable.
Thomas Sowell, a noted conservative op-ed writer, wrote that one of the necessary and therefore
acceptable cost of convicting the guilty was the execution of the occasionally innocent person who
14
mistakenly got swept up in the process. “As Adam Smith said, two centuries ago, ‘Mercy to the guilty is
cruelty to the innocent.’"
Counsel who take post-conviction death penalty cases may encounter consequences outside the
law. When Tim Kaine ran for Governor of Virginia he had a history of taking the occasional postconviction death penalty case. One was that of Richard Lee Whitley, a death penalty habeas petition
that I had persuaded him into taking to Federal Court after I lost Whitley’s state habeas petition. Shortly
after Tim opened his campaign for Governor, his opponent, former Attorney General Jerry Kilgore,
launched a television commercial. Seated on a stool under a light was Stanley Rosenbluth, whose son
and daughter-in-law had been murdered 12 years earlier. As the spot opened, Rosenbluth said: “Tim
Kaine says that Adolf Hitler doesn’t qualify for the death penalty.” The fact that Kaine had said no such
thing was irrelevant. The ad ran for the first time the night before Yom Kippur.
Even jurists may react badly to our efforts. Chief Justice Warren Burger expressed his disdain for the
process and counsel who pursued such claims in a famous concurring opinion, denying a Habeas
Petition:
“The argument so often advanced by the dissenters that capital punishment is cruel and
unusual is dwarfed by the cruelty of 10 years on death row inflicted upon this guilty defendant
by lawyers seeking to turn the administration of justice into the sporting contest that Roscoe
Pound denounced three-quarters of a century ago.”
Burger, CJ, Concurring in Sullivan v. Wainwright, 464 U.S. 109, 112-113 (1983)
Earl Washington surely qualified as one of Chief Justice Burger’s obviously guilty defendants. After
all, he had confessed to a rape and murder of a 19 year old mother of three. Convicted and sentenced to
death in 1984 for the 1982 rape and murder of Rebecca Williams, he was pardoned in 2000 based upon
DNA evidence of his innocence. In short, found guilty on a confession he did not give, and sentenced to
death for a crime he did not commit, Washington had come within nine days of execution. He was one
of the “occasional innocents” Sowell was willing to see executed so that we could be certain we
executed all of the guilty.
Chief Justice Burger was not the only jurist to express distaste for post-conviction death penalty
cases.
Justice Scalia, with whom Justice Thomas joined, concurred in Herrera v. Collins, 506 U.S. 390
(1993):
“We granted certiorari on the question whether it violates due process or constitutes cruel
and unusual punishment for a State to execute a person who, having been convicted of murder
after a full and fair trial, later alleges that newly discovered evidence shows him to be ‘actually
innocent.’ I would have preferred to decide that question, particularly since, as the Court's
discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or
even in contemporary practice (if that were enough), for finding in the Constitution a right to
demand judicial consideration of newly discovered evidence of innocence brought forward after
conviction. In saying that such a right exists, the dissenters apply nothing but their personal
opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of
Criminal Procedure for which this Court itself is responsible. If the system that has been in place
for 200 years (and remains widely approved) ‘shocks’ the dissenters' consciences, post, at 1,
perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of
‘conscience shocking’ as a legal test.” (emphasis supplied).
15
In 1993, the year of the Herrera decision, PCR DNA testing had been online for 3-4 years, but was
not discriminating enough to identify the actual perpetrator. That would come later with a refinement
call “short tandem repeats” DNA. In 1993, DNA testing might reveal alleles which were not found in the
accused’s DNA, and exonerate the accused that way, but over the ensuing years advances in DNA testing
which could identify the actually guilty made Justice Scalia’s proclamation seem bizarre and patently
unfair – unless, of course, one adopts the view that the conviction of a few innocent people is an
acceptable cost to ensure the conviction of all of the guilty. To date, there have been 337 exonerations
by DNA alone, 15 of them in Virginia. http://www.innocenceproject.org/cases-false-imprisonment.
Ineffective Assistance of Counsel
It wasn’t too long ago that to prove ineffective assistance of counsel in capital cases one had to
show that defense counsel’s conduct reduced the case to a farce and a mockery.
“Initially, we must decide the level of competence required of attorneys in criminal cases. In the
past, we followed the ‘farce and mockery’ standard. See, e.g., Russell v. Peyton, 207 Va. 469, 150 S.E.2d
530 (1966); Peyton v. Ellyson, 207 Va. 423, 150 S.E.2d 104 (1966); Hoffler v. Peyton, 207 Va. 302, 149
S.E.2d 893 (1966). This standard required a prisoner to prove by a preponderance of the evidence that
his counsel's representation was so ineffective it reduced the trial to a farce and mockery.
More recently, the United States Supreme Court stated that the proper standard to be applied in
determining effective assistance of counsel is whether counsel's conduct was ‘within the range of
competence demanded of attorneys in criminal cases.’ McMann v. Richardson, 397 U.S. 759, 771, 90
S.Ct. 1441 1449, 25 L.Ed.2d 763 (1970). See also Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602
1607, 36 L.Ed.2d 235 (1973). Until McMann, both Federal and State Courts applied the ‘farce and
mockery’ standard, but many jurisdictions now have adopted a ‘reasonable competence’ standard.”
Stokes v. Warden, Powhatan Correctional Center, 226 Va. 111 (1983).
Under Texas law, it was not per se ineffective assistance of counsel for defense counsel to sleep
through parts of the trial. A number of habeas corpus petitions asserting ineffective assistance of
sleeping counsel depended on the petitioner’s inability to demonstrate that his lawyer slept through
important parts of the trial. It had not dawned on some of us that there might be unimportant parts of a
death penalty trial.
The Houston Chronicle described the trial of George McFarland in Houston as follows:
“Seated beside his client . . . defense attorney John Benn spent much of Thursday
afternoon’s trial in . . . deep sleep. His mouth kept falling open and his head lolled back on his
shoulders, and then he awakened just long enough to catch himself and sit up-right. Then it
happened again. And again. And again.
Every time he opened his eyes, a different prosecution witness was on the stand describing
another aspect of the Nov. 19, 1991, arrest of George McFarland in the robbery-killing of grocer
Kenneth Kwan.
Court observers said Benn seems to have slept his way through virtually the entire trial.”
George McFarland’s case is still pending in the courts. The presiding judge said that the Constitution
guarantees a defendant a lawyer, but it does not guarantee that the lawyer must be awake. The Texas
Court of Criminal Appeals upheld the conviction and sentence on direct appeal, McFarland v. State, 928
S.W.2d 482 (Tex. Cr. App. 1996), over a dissent by Judge Charles Baird, joined by Judge Morris
16
Overstreet, which argued “[a] sleeping counsel is unprepared to present evidence, to cross-examine
witnesses, and to present any coordinated effort to evaluate evidence and present a defense.” Id. at
527. The Court upheld the conviction and sentence again on post-conviction review. Ex parte
McFarland, 163 S.W.3d 743 (2005). Judges Baird and Overstreet were no longer on the Court and there
were no dissents.
The Fourth Circuit’s take on sleeping lawyers? Three weeks ago the Virginia Lawyer’s Weekly,
repeating an Associate Press story noted:
Sleeping lawyer voids conviction
By: The Associated Press March 11, 2016
RALEIGH, N.C. (AP) A federal appeals court says a sleeping defense lawyer is almost as bad as
none at all.
The 4th U.S. Circuit Court of Appeals in Richmond on Friday tossed out a North Carolina man’s
conspiracy and racketeering convictions because his lawyer slept through his trial.
The judges said attorney Nikita V. Mackey’s sleepiness meant Nicholas Ragin was deprived of his
constitutional right to a lawyer. Ragin was sentenced to 30 years in prison.
The ruling sets a precedent for federal cases in the Carolinas, Maryland, Virginia and West
Virginia. The decision says five of the 11 regional federal appeals courts now have ruled the
same way on slumbering defense attorneys.
Mackey did not return a telephone call to his law office and had no listed home number.”
I want you to note that last line:
“(F)ive of the 11 regional federal appeals courts now have ruled the same way on
slumbering defense attorneys.”
Do the math. Slumbering lawyers as per se ineffective is a “minority rule” in the federal courts. The
Virginia State Bar Foundation at one time was not terribly sympathetic to attorneys who did this kind of
work. One of the key issues for post-conviction habeas counsel to consider is whether trial counsel’s
performance met the then standards for effective assistance during the trial. The first VSBF grant for
assistance in death penalty cases had a restrictive clause. None of the money was to be spent to further
ineffective assistance of counsel claims.
Nor has the bar’s disciplinary system been of much help in those instances where the inmate’s
prosecutor failed to meet his or her so-called Brady obligations by disclosing information and evidence
which might be helpful to the defense, or cases in which the prosecutor lied to get an execution.
During clemency proceedings in the Earl Washington case in 1993, the prosecutor called the
Attorney General’s Office in an effort to persuade them not to pay much attention to the DNA evidence
of innocence because, “While I have never told anyone this, I attended the interrogation of Mr.
Washington and he volunteered information that only the killer could have known.” The Culpeper police
lieutenant who co-conducted the interrogation of Mr. Washington (with Virginia State Police Special
17
Agent Curtis Reese Wilmore) testified under oath that the prosecutor had not been present and would
have been sent away if he had been present because his presence would have made him a witness to
the confession and required his recusal. The Assistant Attorney General who took the prosecutor’s call
similarly testified under oath that the prosecutor insisted he had been present during the interrogation.
After Washington’s exoneration in 2000, he filed a grievance against the prosecutor for lying to the
Attorney General in order to have him executed for a crime he didn’t commit. The VSB disciplinary
committee dismissed the grievance because the evidence was clear that the prosecutor couldn’t have
been at the interrogation because he was in a theater in Culpeper at the time. What we considered
strong evidence of his fabrication the bar committee took as strong evidence of his ethical behavior.
Additionally, there is judicial hostility to what we do.
Steve Rosenfield
Steve Rosenfield handled a death penalty case before the 4th Circuit. When he submitted his time
for what should have been a routine award of attorneys’ fees, the Chief Judge reduced his fees by 80%
but refused to explain why. Steve wrote to the en banc Court in their administrative role seeking an
explanation. Four months later they denied his request for an explanation. Steve sued, and the case was
deemed moot when the Administrative offices established a prospective rule requiring an explanation
and a notice of right to appeal. Mootness was considered applicable to Steve’s fee claim and he never
did learn why his fee had been reduced.
Steve’s work will be our segue into the list of criminal law cases on which members of our bar have
distinguished themselves. Steve has been a burr under the government’s saddle more than once. He has
filed cases to overcome the inherent inertia in government programs administered by the Virginia
Department of Corrections.
“Rosie” - #2
For example, he represented a blind woman prisoner who was refused the braille lessons which would
help her get her GED. Sighted prisoners were provided an outside teacher, brought in to teach Braille so
that they could learn a skill. The blind prisoner wasn’t eligible – at least until Steve got on the case.
“Rosie” - #3
Steve also represented a deaf woman prisoner who was constantly written up for not standing for count
at 4:30 a.m. because she was unable to hear the bell.
“Rosie” - #4
Steve recently obtained a pardon for Robert Davis, a man who was innocent and spent 13 years in
prison from ages 18-31. The story just aired on Dateline NBC February 14, 2016, and the client is doing
exceedingly well. He became like a son to Steve over these many years. I want you to watch it:
https://www.youtube.com/watch?v=2hft_P6KPes&ebc=ANyPxKoi7Y2ruAFauNS65PRhB064OzhOKJFtwW
2ccKdxelgK2RsRGd6plST8n74b47ZUQR8pP89HyCn1_ihJSCa1RxwdbUnlMQ
The Clark Case
Not all death penalty habeas corpus petitions deal with guilt or innocence, but address whether the
death penalty had been constitutionally imposed.
18
In the mid-seventies there was a brief moratorium on executions as the state legislatures struggled
to adopt new death penalty statutes which would meet constitutional muster after the U.S. Supreme
Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972). While Furman addressed a number of
deficiencies in state capital case prosecutions, the case encouraged state legislatures to seek adoption
of death penalty statutes which reduced prosecutorial discretion on who lived and who died, and to
allow defendants to offer evidence in mitigation of punishment.
The adopted Virginia statute provided for two trials, a guilt-innocence trial, and if the defendant was
convicted of capital murder, a second trial to the same jury to determine if the defendant would be
sentenced to death or life in prison without parole.
The new Virginia statute had an anomaly. What would happen if, after a conviction of capital
murder and a sentence of death, the Supreme Court of Virginia determined that there was error in the
sentencing trial, but had not been error in the guilt innocence trial? In 1981, the Court answered that
question in Patterson v. Commonwealth, 222 Va. 653 (1981).
The statutory framework existing at the time inhibited a remand of the case for a new trial limited
to the penalty issue only. This was because Code § 19.2-264.3(C) provided at the time that if a
defendant was found guilty by a jury of a capital offense, the same jury must fix the punishment. We
said: "Manifestly, the same jury that convicted Patterson should not now be reconvened upon a
remand." Patterson’s sentence was therefore commuted to life in prison without the benefit of parole.
Clark’s conviction and sentence of death was based on a murder for hire to which he had confessed.
Our Petition for a Writ of Habeas Corpus was based solely on the ineffective assistance of his counsel
during the sentencing stage of the trial. Clark’s sentence was ultimately commuted to life imprisonment
under Patterson and he lived out the balance of his days in our state penitentiary system. However, his
federal habeas relief was granted in unpublished opinions, and the Fourth Circuit opinion consisted of a
single word, “Affirmed”. You, the reader would not know that we prevailed in Clark’s case. The
annotations to the Virginia Code end with the Virginia Supreme Court’s reversal of the state habeas
award and re-imposition of the death penalty.
The commutation of Clark’s sentence of death in unpublished opinions had two downstream
consequences.
The most frequent citations to the Jimmy Clark case today are to the 1979 opinion affirming his
conviction and sentence on direct appeal (220 Va. 201, 257 S.E. 2d 784), and stand for the proposition
that because he was sentenced to death for his role in a murder for hire, a sentence of death for those
defendants similarly situated is not excessive because it is not disproportionate to Clark’s punishment.
One of the last acts the Supreme Court of Virginia is to perform when reviewing a sentence of death
is to determine “(w)hether the sentence of death…is disproportionate to the penalty imposed in similar
cases considering both the crime and the defendant.” Va. Code Section 17.1-313(C).
Clark and one Danny Stewart had been convicted of the murder for hire of James Harold
Scarborough. They had been hired by Betty Holler, a close friend of Jamie Scarborough’s, the victim’s
wife, who had asked Holler to find a killer or killers for her husband. In a murder for hire scheme, all
participants are considered principles in the first degree.
Clark and Stewart were tried first, both were found guilty and both were sentenced to death. To
make the case against Jamie Scarborough, the Commonwealth cut a deal with Betty Holler. In return for
her testimony, they’d reduce her charge to murder one. To beef up the causal link, the Commonwealth
19
then offered to commute Danny Stewart’s death sentence to life for his testimony against Jamie
Scarborough. Stewart testified. Notwithstanding all of the deals, Jamie Scarborough was acquitted by
her jury.
Court appointed me to represent Clark on his direct appeal and I felt very optimistic that Clark’s
sentence of death had to be commuted to life under a proportionality analysis. Of the four principles in
the first degree, only one was selected to die. However, the Court’s procedure for making the
proportionality analysis was of no comfort. It had no procedure, so Clark was left on death row.
Why? According to the Court, one couldn’t compare Clark’s sentence to Jamie Scarborough’s
sentence for proportionality purposes because she was acquitted.
Nor, said the Court, could one compare his sentence to Holler’s, since she was only convicted of
murder one.
While one might think one could compare Clark’s sentence to Danny Stewart’s sentence because he
had been sentenced to die, according to the Court, the Commonwealth had good reason to commute
Stewart’s sentence to life since he helped the Commonwealth, and once commuted, it couldn’t be used
for comparison to Clark’s sentence because Stewart was no longer sentenced to death.
Using this logic, the Supreme Court of Virginia reached its most bizarre proportionality analysis in
the Teresa Lewis case (267 Va. 302 (2004)). Lewis’ case, like Clark’s, was a murder for hire. However,
Clark had been the trigger man. Lewis had not. Teresa Lewis was Jimmy Clark’s Jamie Scarborough. She
was the spouse who hired hit men to kill her husband. The hired hit men in the Lewis case, like Clark and
Stewart, actually murdered the victim. Unlike Jamie Scarborough, Teresa Lewis was convicted.
Here’s where the court went off the rail. Both of the hitmen in the Lewis case entered into plea
bargains. In return for their testimony against Teresa Lewis, both of their sentences would be set at life
imprisonment, not death. Teresa Lewis was then tried and convicted of capital murder and sentenced to
death, and the Supreme Court of Virginia did not find her sentence disproportionate.
Her sentence, on its face, was patently disproportionate to the sentence imposed on the actual
killers, the triggermen, but the Virginia Supreme Court had adopted a judge-made rule that “rejected
efforts by defendants to compare their sentences with those received by codefendants.” Lewis v.
Commonwealth, 267 Va. 302 (2004) and cases therein cited. The Court adopted that policy
notwithstanding the fact that Code Section 17.1-313(C)(2) made no such distinction. The code called on
the Court to consider and determine “(w)hether the sentence of death is excessive or disproportionate
to the penalty imposed in similar cases.” As we had argued in Clark, if everyone involved in a murder for
hire is a principal in the first degree, you can’t get more similar than the same case.
The citation of the Clark case for the proposition that Teresa Lewis’ sentence of death was not
disproportionate was further confounding because Clark, while initially sentenced to death, had his
sentence commuted. Putting the Clark case and the Lewis case side-by-side, we have two murder for
hire cases in which three triggermen get life, one non-triggerman wife gets death, the other wife is
acquitted, and the one wife’s death sentence is deemed proportional, but proportional to what?
The ABA study of the Virginia Death Penalty posted this protocol:
“Protocol #1
20
In order to (1) ensure that the death penalty is being administered in a rational, nonarbitrary manner, (2) provide a check on broad prosecutorial discretion, and (3) prevent
discrimination from playing a role in the capital decision making process, direct appeal courts
should engage in meaningful proportionality review that includes cases in which a death
sentence was imposed, cases in which the death penalty was sought but not imposed, and cases
in which the death penalty could have been but was not sought.”
The ABA study further observed that “a review that relies chiefly on cases in which the death
penalty was imposed will inevitably increase the likelihood that a death sentence will be upheld,
while potentially ignoring several factually similar cases that did not warrant a death sentence and
providing little safeguard against arbitrariness in capital sentencing…While the Supreme Court of
Virginia has reviewed the death sentences imposed in over one hundred cases since 1974
per this statutorily-mandated proportionality review, it never has vacated a death sentence on this
ground.”
Teresa Lewis was put to death by lethal injection on September 23, 2010.
The second anomaly about the Clark case is the frequency with which its’s cited on the
proportionality issue – and always for the proposition that his execution provides authority for the
execution of others under the proportionality analysis the court is required to conduct.
Almost all of the relief granted Virginia death row inmates has come from the federal bench, not
the state bench.
The Supreme Court of the United States has narrowed the use of the death penalty in recent years
by excluding from its reach:
1. those who were so intellectually challenged that to execute them would constitute “cruel and
unusual punishments” prohibited by the Eighth Amendment, Adkins v. Commonwealth of
Virginia, 536 U.S. 304 (2002), and
2. those who were under age 18 at the time of the offense. Roper v. Simmons, 543 U. S. 551
(2005).
Lloyd Snook
VTLA stalwart Lloyd Snook has handled numerous post-conviction death penalty appeals, as has
John Lowe. One of Lloyd’s cases in particular stands out, the case of Morris Mason, a seriously
challenged individual. Here’s Lloyd’s story:
“Morris Mason was executed in June, 1985. He had committed some absolutely hideous rapes and
murders on the Eastern Shore, pled guilty, and was sentenced to death. He had never had a
psychological evaluation after having been charged, though he had been discharged from the Army with
diagnoses of paranoid schizophrenia and mental retardation (IQ was variously tested at 64 and 66). We
tried to get him a new trial, or at least a new sentencing, based on this information that had never been
presented to the sentencing judge. While the case was pending in the US Supreme Court, the Court
decided Ake v. Oklahoma, deciding for the first time that there was a constitutional right based in Due
Process to the assistance of expert witnesses, including mental health witnesses. Despite the fact that
there was no question that had Morris been evaluated there would have been important mitigating
information to present, the Supreme Court denied cert., and no court would grant a new trial.
21
A week or two before the execution date, Morris was moved to the basement at the State
Penitentiary on Spring Street in Richmond (now torn down). Marie Deans went to meet with him daily.
A few days before his execution, Morris asked Marie what he should wear to his funeral, the implication
being that someone needed to bring him some clothes so that he could put them on. Marie had to
explain to him that the funeral meant that he was going to be dead – in the casket – and that the prison
was going to release his body to his family in the same clothes that he was wearing when he went to the
electric chair. Morris had a general sense about funerals and dying that included the fact that someone
was going to be in a casket, but he had never really thought about the fact that it would be him. He was
confused by this, and he was having a hard time trying to understand what it was going to be like when
he was dead. Marie finally got him to face it all with a positive attitude when she explained to him that
it meant that he was going to be able to see his grandmother again. He kept that thought in mind. I was
with him until about 30 minutes before his death. He asked for a special meal for his last meal – two
Big Macs with fries. He didn’t need dessert, because his grandmother made the best pies.”
Of what deterrent effect can the death penalty possibly be for a man like Morris Mason whose
intellectual impairment is so severe that he doesn’t understand what it means to die?
Jonathan Shapiro
Jonathan Shapiro, partner of Peter Greenspun of Fairfax and professor of law at Washington and Lee
University, handled a case which to this day sticks in my memory banks like an abscess.
Remember that under Patterson v. Commonwealth, supra, if there was a defect in the inmate’s
sentencing trial, the sole remedy was a commutation of the inmate’s death sentence to life in prison
without the benefit of parole.
There was such a defect in the death penalty trial of Wibert Evans, similarly convicted of capital
murder and sentenced to death. His conviction and sentence were upheld on direct appeal, just like
Clark’s. In a subsequent habeas corpus proceeding, Evans contended that evidence introduced at his
sentencing trial, purported convictions of various crimes in North Carolina, had not been convictions,
but acquittals while other convictions offered in evidence had been un-counselled convictions under
circumstances where the defendant had a right to counsel, but had not been provided counsel.
After Evans’ trial, conviction and sentence, he filed his petition for habeas corpus, as had Clark.
In Evans’ case, the Commonwealth stalled the habeas proceedings using sundry maneuvers. During
the period it was stalling the habeas petition, it was secretly lobbying members of the General Assembly
to introduce emergency legislation to amend Code Section 19.2-264.3(C) to permit a resentencing trial
by new jury, not the automatic commutation of sentence called for in Patterson. The General Assembly
obliged and passed, and the Governor signed, an emergency bill to permit a resentencing trial by a new
jury.
Within days of the signing of the law, the Commonwealth confessed error in Evans’ habeas
proceeding and the habeas court remanded the case to the trial judge for a new sentencing trial under
the new statute. Evans, tried under the amendment, was again sentenced to death and has since been
22
executed. Evans’ appeal of that sentence on the grounds that the amendment to 19.2-264.3(C) was ex
post facto as to him fell on deaf ears. The law in effect at the time of Evans’ crime and trial mandated
commutation of his sentence to life. It was only because of subsequently enacted legislation that he was
sentenced to death. I will leave the wisdom and the reasoning of that decision to your curiosity. See
Evans v. Commonwealth, 228 Va. 468 (1984).
Tom Bondurant
Tom Bondurant and his wife Bert got Davey Reedy pardoned after 27 years in prison for a crime he
didn’t commit. Davey Reedy was convicted in the 1987 arson death of his two children in his home. The
so-called arson experts called by the prosecution testified that the fire was caused by flammable liquids
on the kitchen floor and petroleum distillate residue was found on Reedy’s cloths. He was convicted on
both counts and sentenced to two life terms. In 2002, Tom and his wife started to unravel this sad
mystery and for the next 12 years they challenged the validity of the forensic testing of the items seized,
resulting in an award of an absolute pardon for Mr. Reedy. I’ve attached the pardon document to this
outline.
Lawrence “Woody” Woodward
On the morning of May 19, 1990, a housekeeper at the Econo Lodge motel in Newport News,
Virginia discovered the body of 35-year-old Timothy Askew in room 204. He had been stabbed multiple
times.
At the time, Askew had been sharing room 235, an efficiency suite, with 19-year-old David Boyce,
whom police located at 2 p.m. at a Sizzler’s restaurant where Boyce worked. Boyce was taken to the
police department where he said that on the afternoon of the previous day, he had seen Askew and
Askew’s ex-wife at the motel. Boyce claimed that Askew gave him some money he owed him. Boyce said
he next saw Askew around 2 or 2:30 a.m. when Askew came into their room and said he had some hash
and was going to party with friends.
Boyce was fingerprinted by Officer Patti Montgomery, a detective took a Polaroid photograph of
him, and he was released. He was interviewed again on May 22 and repeated his account. On May 24,
Boyce’s 20th birthday, he was called back a third time and charged with capital murder and robbery. At
that time, photographs were taken of his hands that showed some cuts and bruises.
The prosecution sought the death penalty when Boyce went on trial in Newport News Circuit Court
in March 1991. A motel clerk testified that he checked Askew into room 204 around 2 a.m. The clerk
made a security walkthrough of the property at 3 a.m. and as he passed room 204, which was silent and
dark, he saw a man walking behind him who furtively ducked into a crossway and then headed toward
some woods located behind the motel. The clerk testified that the man looked similar to Boyce, though
the man he saw had a darker complexion and “at least shoulder length hair, possibly longer.”
Patti Montgomery, the police officer who fingerprinted Boyce, testified that Boyce had “almost
shoulder length hair” when she took his fingerprints. She told the jury that when she saw him after his
arrest, which was five days after she fingerprinted him, “he had cut his hair again, even shorter.”
Herman Elkins testified that he was in jail on an illegal gun possession charge when Boyce confessed
to the murder through jail cell bars. Elkins said that Boyce was on the way back to his cell from taking a
23
shower when he confessed. According to Elkins, Boyce said that he and Askew had been gay lovers and
that he killed Askew during a quarrel.
A police evidence technician testified that a scent-tracking dog traced the scent from bloody towels
in room 204, where the body was found, to room 235, where Boyce and Askew had both been living.
The jury was shown the photographs of cuts and bruises on Boyce’s hands, taken five days after the
crime.
After a two-day trial, the jury convicted Boyce of capital murder and robbery, and sentenced him to
two terms of life in prison.
In the late 1990s, Boyce was going through transcripts and he happened to remember that his
photograph had been taken on the day he was first questioned by police. He wrote a letter to the
Newport News Police requesting a copy of the photo. There was no response.
In 2001, after his conviction was upheld on appeal, Boyce was granted DNA testing of evidence in
the case and he mentioned to his lawyers his memory of detectives taking a Polaroid of him. But when
the police investigative file was turned over to the lawyers, the photograph was not in the file.
In May 2004, Boyce filed a petition for a writ of actual innocence in the Supreme Court of Virginia
based on DNA testing of biological evidence in room 204. The DNA evidence showed the presence of
DNA of an unidentified person and none of Boyce’s DNA. In August 2004, Elkins, the jailhouse snitch,
telephoned Boyce’s attorney and said he had lied at Boyce’s trial in return for dismissal of the gun
possession charge. However, Boyce’s petition was denied.
When the petition was denied, Boyce’s appellate attorney referred the case to the Mid-Atlantic
Innocence Project before discontinuing his representation. Lacking the resources to properly litigate
Boyce’s claims at that time, the Mid-Atlantic Innocence Project referred the case to an outside law firm
which agreed to represent Boyce pro bono.
In 2005, Boyce’s attorneys simultaneously filed state and federal petitions for writs of habeas
corpus. In the course of the state proceedings, the prosecution revealed exculpatory evidence that had
not been disclosed to Boyce before or at his trial. The evidence included a prosecution report of a
telephone call from a member of Askew’s family saying that a man named Robert Rodriguez had told
acquaintances that he had “cut up” Askew. The newly disclosed evidence also included the Polaroid
photograph of Boyce that was taken by a detective on the day of the murder when he was first
questioned. That photograph showed Boyce from the waist up, wearing his Sizzler’s uniform and
nametag. His hair was short.
In 2010, a hearing on the state petition was held. Elkins recanted his recantation and asserted that
he had testified truthfully at Boyce’s trial. Boyce’s attorneys presented evidence of Elkins’ history of
mental illness and evidence that Elkins had originally recanted to prosecutors in 2004, prior to calling
Boyce’s attorneys. According to the defense, prosecutors had not only failed to disclose the recantation,
but had discouraged Elkins from contacting Boyce’s attorneys. The court ruled that the failure to
disclose the photograph had violated Boyce’s constitutional right to a fair trial, but denied the petition.
The judge found it was filed too late—the statute of limitations for filing his petition had expired—
because Boyce knew about the existence of the photograph but failed to raise it at trial.
In 2011, Boyce turned to the federal habeas petition, which had been put on hold pending the
conclusion of the state proceedings. In March 2013, U.S. District Court Judge James R. Spencer granted
Boyce’s petition, vacated his conviction and ordered a new trial. Boyce was released in April 2013.
24
On September 18, 2013, the prosecution dismissed the charges at a hearing presided over by
Norfolk Circuit Court Judge Mary Jane Hall who said she was “familiar with the record in this case,” and
that her review of the evidence and the case record led her to conclude that “the wrong person was
prosecuted.”
“I can't give you back the last 23 years, but I can give you back the next 23 years,” Judge Hall told
Boyce. “I can sign the order, and I'm doing so at this time.”
In May 2014, Boyce filed a lawsuit against the city of Newport News and the lead detectives in his
case seeking $25 million in damages for his wrongful incarceration. The lawsuit was settled in January
2016 for $2 million.
Henry Marsh, III
In July 1990, Curtis Kearney was shot and killed on a street in Richmond, Virginia. Janice Talley, the
woman with Kearney at the time, described the shooter to police and said she heard someone call the
man “Squeaky.”
A month after the murder, and again a month after that, she identified Troy Hopkins as the shooter
from two separate photo arrays. Hopkins was arrested in November 1990 after he told police his
nickname was “Squeaky.”
Talley identified Hopkins again at his trial. Hopkins’ longtime friend testified that he had witnessed
Kearney’s murder and that a 15-year-old named “Scooby” was the shooter. According to the friend,
Hopkins was not present that morning. Nonetheless, in December 1990, a jury found Hopkins guilty of
first-degree murder, armed robbery, and a weapons charge. Hopkins was sentenced to 28 years in
prison.
In February 1992, Adrian Epps, nicknamed “Scooby,” went to police and signed an affidavit
confessing to Kearney’s murder after his cousin met Hopkins in jail and told him Epps was responsible
for Kearney’s death.
Hopkins filed a motion for a new trial based on Epps’ confession, but it was denied because the trial
court found that Hopkins had not proven that the evidence was not discoverable before his trial.
Subsequent motions were also denied, despite additional witnesses who came forward and identified
Epps as the shooter, and agreement from the prosecutor that Hopkins should receive a new trial.
Hopkins briefly prevailed when, in September 1994, a three judge panel of the Virginia Court of
Appeals overturned his conviction and granted a new trial. The prosecution appealed, however, and in
April 1995, the full panel of ten judges of the Virginia Court of Appeals reinstated his conviction.
Hopkins remained in prison until he was paroled in March 2001.
In 2003, the Richmond Commonwealth’s Attorney filed an affidavit stating that Hopkins’ conviction
should be invalidated, and in August 2005, Virginia Governor Mark Warner issued Hopkins a full pardon.
Hopkins was awarded approximately $230,000 in compensation plus tuition credits by the Virginia
Legislature in April 2006.
25
John Lichtenstein and the late Murray Janus
On April 2, 1990, a 24-year-old woman reported to the police that a man had broken into her home
in the East End, located in eastern Henrico County near Richmond, Virginia and sexually assaulted her.
The woman described her attacker as a Hispanic man who had a gold tooth and spoke with an
accent. However, after being shown a photographic lineup, the woman picked 23-year-old Dell Talley, a
black man who spoke without an accent and had no gold tooth. Talley had prior convictions for breaking
and entering as well as grand larceny.
Talley was arrested on April 6, 1990 and charged with forcible sodomy and breaking and entering.
He went on trial in January 1991 in Henrico County Circuit Court. The victim identified him as her
attacker. It was only then that the prosecution gave the defense a copy of the police report of the
victim’s initial account of the assault. The report, however, was coded. Unless the codes were
deciphered, a reader could not tell that the woman originally reported that her attacker was Hispanic,
spoke with an accent and had a gold tooth—none of which fit Talley.
Talley’s defense lawyer not only failed to request the report prior to trial, but also never attempted
to decode the report once he received it. The jury convicted Talley on January 9, 1991 of forcible
sodomy and breaking and entering.
Prior to sentencing, Talley retained new lawyers who deciphered the police report, learned about
the victim’s initial and contradictory description of her assailant, and filed a motion to vacate Talley’s
conviction. The defense contended that the prosecution’s disclosure of the report “in the middle of the
trial in the heat of battle without the code is like giving it to (the defense attorney) in Sanskrit.”
The prosecution opposed the motion, noting that the victim had identified Talley in the courtroom,
and contended that the police report was wrong. The prosecution also argued that Talley could have
had a fake gold sleeve that he slipped over one of his teeth and then removed after the assault.
On May 1, 1991, a Henrico County Circuit judge granted the defense motion and vacated Talley’s
conviction. “What we are talking about is an incident report which is written in a code,” the judge said.
“I must find that this is a situation in which this report as cited was in fact of substantial value to the
defendant.” Talley was released on bond that day.
On May 30, 1991, the prosecution dismissed the charges after the victim said she no longer wished
to testify.
Talley filed a federal civil rights lawsuit against Henrico County and in December 1992, he settled the
lawsuit for an undisclosed amount.
Steve Benjamin and Betty DesPortes
On the night of December 13, 2012, 20-year-old Chelsea Steiniger told her boyfriend that she had
been abducted and drugged by a man driving a white van who took her to a vacant house in Albemarle
County, Virginia. Steiniger said she woke up and managed to escape.
Earlier in the evening, Steiniger’s boyfriend, Michael Mills, kicked her out of his home. She later said
she was walking home and was approached in the parking lot of a convenience store by 52-year-old
Mark Weiner who offered her a ride to her mother’s home. However, she said that Weiner put a
26
chemical-soaked cloth over her face causing her to pass out. When she awoke, Steiniger said she was in
a vacant home she had never seen before. She heard Weiner using her mobile phone to send text
messages. She said she managed to get away by jumping from a second floor balcony and went into
nearby woods.
After Mills received several text messages on his mobile phone ostensibly sent by Steiniger’s
kidnapper, he called police.
The following day, police went to the convenience store and employees there described Weiner as a
regular customer who drove a white van. When police questioned Weiner, he freely admitted he had
picked up Steiniger, but said he drove her to her mother’s house and then went home. Weiner, manager
of a Food Lion grocery store who was married with a nine-year-old son and had no criminal record, was
arrested and charged with abduction with intent to defile.
Weiner went to trial in Albemarle County Circuit Court in May 2013. Steiniger testified that she
accepted Weiner’s offer to drive her to her mother’s home. But he passed up her mother’s home, she
said. Then, after touching her leg and engaging in small talk, Weiner put a chemical-soaked cloth over
her face causing her to pass out, Steiniger told the jury.
She said she awoke in a vacant house and heard him sending text messages with her mobile
telephone. Steiniger said she managed to run to the balcony, jump down and escape into nearby woods.
Meanwhile, Mills had called police after receiving the text messages. One said, “She’s so sexy when
she’s passed out” and another said, “She’s in my house now, Imma warm her up.”
Weiner testified that he was a family man, was active in his synagogue, and supported his son’s Boy
Scout troop while working as Food Lion manager during the day and taking night classes at Piedmont
Virginia Community College.
Weiner told the jury that he saw Steiniger, whom he did not know, walking alone on a cold night and
offered her a ride. He said that he obtained her phone number, which he wrote on a book of matches,
to pass along as a possible hire at the Food Lion. He told the jury he drove her directly to her mother’s
apartment.
No physical or forensic evidence linked Weiner to the abandoned home where Steiniger said she
had awakened or to Steiniger’s mobile phone. Weiner’s defense attorney contended Steiniger’s mobile
phone was too small for Weiner, who weighed 300 pounds and had size 16 fingers, to operate.
On May 24, 2013, the jury convicted Weiner of abduction with intent to defile. Prior to sentencing,
Weiner obtained new attorneys, Steven Benjamin and Betty Layne DesPortes, who began reinvestigating the case and ultimately filed a motion seeking a new trial in April 2014.
The motion cited Steiniger’s mobile phone records from the night of the alleged abduction, the
location of area mobile phone towers, and a six-page report by an expert on digital forensics that said
Steiniger’s mobile phone was being used near her mother’s address at the time and not at the
abandoned house which was 1.5 miles away. The prosecution had obtained the records, but had not
disclosed the records to Weiner’s lawyer, who had not sought them independently.
A mobile phone tower 405 yards from the vacant house was not accessed by her cellphone,
according to the report. At the same time, mobile phone records for Weiner’s phone showed him 17
miles away from the vacant house at the time of the alleged crime.
27
The motion said the phone records showed Steiniger falsely testified that her phone was dead for a
while after she fled the house, that her boyfriend did not call her, and that she did not talk on the phone
while she was in the woods walking to her boyfriend’s home.
The defense asserted that Commonwealth's Attorney Denise Lunsford "sought the advice of two
respected detectives in the city and the county" to check the cellphone tower records to pinpoint from
where the text messages came, and both detectives separately concluded the texts originated from an
area close to where Steininger's mother lived, not the abandoned house.
A Charlottesville detective initially analyzed the records and informed Lunsford there was a problem
with the case, the defense said. Moreover, during the trial, Lunsford conferred with another detective
who concluded the same thing.
The jury heard neither detective's testimony.
The motion also contained affidavits from two anesthesiologists who said that Steiniger’s
description of how she was rendered unconscious was impossible. Dr. John R. Janes Jr. said, “I know of
no volatile anesthetic which will render an adult female completely unconscious in 10-15 seconds.”
In addition, the motion said that Weiner’s trial lawyer had discovered a matchbook in Weiner’s van
with Steiniger’s mobile phone number on it, corroborating Weiner’s testimony, but he failed to
introduce the matchbook into evidence at trial. The defense lawyer had failed to do so even though the
prosecution suggested during cross-examination of Weiner that he had lied about taking down
Steiniger’s phone number.
Judge Cheryl Higgins held a hearing on the motion and refused to vacate the conviction. Weiner was
sentenced to eight years in prison.
The defense continued to re-investigate and located three witnesses who said that they had partied
with Steiniger in the vacant house on three occasions prior to the night she said she was abducted and
taken to the house for the first time.
In addition, Steiniger’s boyfriend, Michael Mills, signed a sworn affidavit saying that Steiniger had
admitted to him that she concocted the story against Weiner because Mills had ordered her out of his
home and she thought he would take her back if she said she was the victim of a crime. By that time,
Mills had been arrested on a charge of domestic violence after Steiniger told police Mills attacked her.
The defense also located a witness who said that Steiniger had admitted to the witness that she had
lied about being attacked by Mills.
Despite the accumulation of evidence of innocence, Weiner’s conviction remained intact until July
2015 when the prosecution informed the defense that in February 2015, Steiniger had been involved in
a $100 drug sale with a confidential informant. The Commonwealth’s Attorney, Denise Lunsford, said
the discovery of the allegation against Steiniger was “the straw that broke the camel’s back.”
On July 14, 2015, Lunsford joined in a motion with Weiner’s attorneys to vacate the conviction. The
motion was granted. Lunsford then dismissed the charge and Weiner was released.
28
Rob Stoney
Got involved 10 years after Herbert Bassett’s conviction and months before he was scheduled to be
electrocuted.
Bassett was tried for the murder of Albert Lee Burwell, Jr. in June 1980. The woman who had heard
another suspect confess to the crime did not appear to testify about it. Bassett's defense team was
forced to go on with the trial without her. A mistrial was declared when the jurors couldn't agree
whether Bassett was guilty of the charges against him.
The Commonwealth elected to try Bassett a second time. At his second trial in August 1980, the
woman who had heard the confession of the other suspect now testified that she hadn't believed that
other suspect when he told her of his part in the crime. However, she was earlier on record as saying
that she believed his confession entirely.
Despite a lack of any credible testimony and independent evidence, the absence of a motive, and his
cries of innocence, Bassett was convicted of capital murder. During the sentencing phase of Bassett's
trial, he was sentenced to death after the judge told the jury that they could sentence him to death if,
after consideration of his past conviction (the 1966 shooting in which another man admitted to being
the gunman), they found that there was a probability that he would commit future acts of violence. The
jury found Bassett guilty "after careful consideration of his past criminal record" and sentenced him to
death.
Rob, after reading the transcripts of both trials, tracked down and interviewed the female witness
to the confession of the other suspect and when he did it became clear to him that Bassett was
innocent of the crime. In the subsequent Habeas Corpus proceeding , Judge Mehrige, his hands tied by
the Virginia twenty-one day finality of convictions rule, denied Rob’s Habeas petition with tears in his
eyes. There is no DNA evidence.
Rob knows who killed Burwell and has confronted the killer, who did not deny killing him. Rob’s two
track strategy became fighting electrocution as cruel and unusual and seeking relief from the Governor.
When the 8th Amendment attack started getting traction and threatened to overshadow the claims of
innocence, Rob abandoned that part of the case and 10 hours before Bassett’s scheduled execution,
Governor Wilder offered him a choice: abandon all future claims and the sentence will be commuted to
life without parole. He took the deal and remains in jail.
Conclusion
Rob Stoney’s experience with Governor Wilder was very similar to my own.
Before considering a pardon or clemency for Earl Washington in 1993, Governor Wilder wanted to
conduct DNA testing of the forensic evidence, which had only been tested using electrophoresis; DNA
was not yet online in the mid-80s when Washington was being tried.
The DNA testing available to Governor Wilder was the PCR type which would look at the genetic
alleles in what was called the DQ Alpha sector of the genetic helix. These alleles come in pairs in each of
us and might help exclude an accused as a perpetrator, but could not be used to definitively identify the
perpetrator. Each allele was identified by a number.
29
Because the blanket on the bed where the rape-murder took place was covered with many blood
stains and five discrete semen stains, it was apparent that the fluid stains to be analyzed might contain
the alleles of two persons, the victim and the perpetrator, and perhaps others, intermixed. To analyze
the fluid stains on the blankets, the examiners first needed to determine from a discrete sample
attributable only to a single person the numbers of the paired alleles of the various potential
contributors.
From the victim’s pre-transfusion hospital blood it was determined she was a “4,4”. Because the
semen on the blanket could have been her husband’s, he was tested and was also a “4,4”.
Earl Washington’s blood was tested and he was a “4,1.2”
The semen samples on the blanket were tested, revealing one of the paired alleles as a 1.1, but
because of the potential admixture of fluids it was initially unclear with what other allele the 1.1 was
paired. Was the depositor of the semen a “1.1,1.2”, or a “1.1,4”?
In either event, Earl Washington was cleared. Neither he, nor the victim or her husband possessed a
1.1 allele.
The presence of the stray allele, 1.1, could only mean Washington’s involvement if the victim had
been attacked by two men. However, the victim had lived long enough to tell three people,
independently, that she had been attacked by one black man acting alone. Ergo, we thought,
Washington was exonerated.
On the very last day of Governor Wilder’s term, January 14, 1994, we received a call from Governor
Wilder’s counsel and were told this: “The Governor will commute Mr. Washington’s sentence to life in
prison with the possibility of parole if Mr. Washington will accept that and drop his request for a pardon.
If he will not accept that, he will have to take his pardon and clemency up with the next Governor, and
he will remain under sentence of death in the meantime and a death date will be set.” Then came the
kicker, “You have two hours to accept this offer or it will be withdrawn!”
Ultimately, Earl Washington decided that to live for sure was better than to perhaps be executed if
the next Governor saw his case that way, and accepted the offer.
Many years later, it was brought to our attention that in additional testing ordered by Governor
Wilder, but not shared with us as Washington’s counsel, the state forensic lab examiner had concluded,
based on a comparison of dot intensity in the DNA samples, that the 1.1 allele was paired with a 1.2
allele, and Washington was absolutely excluded as the perpetrator. That information formed the basis
for our request for additional DNA testing under new test protocols, resulting in an absolute pardon for
Mr. Washington – 18 years after he had first been arrested.
Why had Governor Wilder not pardoned him once the additional test results were provided him? All
signs pointed to the Governor’s then interest in running for the U.S. Senate seat held by Senator John
Warner and he did not want to risk the possibility that Washington, if pardoned by him, might commit
some other crime after his release and become Governor Wilder’s “Willy Horton.”
Governor Wilder did issue one absolute pardon during his term – to Alan Iverson who went on to
fame in the NBA.
Justice for those on death row has many, many political ramifications.
30
Before we turn this over to the next speaker would you do me an enormous favor? Please rise and
give the lawyers I have mentioned, who have given so much of their professional time – and personal
time and family time to the cause of strangers they adopted as clients – a huge round of thanks.
Thank you.
31