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One Published Decision — Can you be actually innocent of a crime you weren’t convicted of?

by | Aug 23, 2022 | Firm News, The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

Editorial Comment: Today we have a classic example of how the American Criminal Justice System can ensnare people — both the guilty and innocent — in a web of contrived evidence, pressure to convict, and grossly ineffective assistance of counsel — and then fails to provide any kind of real relief to those whose lives were destroyed in the process — or closure for the victim’s family and friends. I urge you to read the entire post, because it’s important that everyone, not just attorneys, understand that the system, while often just, is not perfect.

The Court of Appeals issues a single published decision today, an order dismissing a petition for a writ of actual innocence.  The issue addressed by the Court is not whether Stephen James Hood was actually innocent of being an accessory after the fact to abduction and first-degree murder of Ilouise Cooper, and elderly black woman, as a principal in the second degree, but whether the Court can consider his petition where Hood was technically not convicted of these offenses.

The murder occurred August 31, 1990. Initially, police believed that Cooper had been murdered by Billy Madison as revenge against a relative or friend of Cooper who had beaten and robbed Madison during a drug deal gone wrong.  Hood, an acquaintance of Madison, was thought to have aided in the crime. Eventually, police brought in witnesses to identify Madison and Hood from a photo line-up.  Also in the line-up was Jeffrey Cox, also an acquaintance of Hood and Madison.  The witnesses gave very tentative identifications of Cox as the person who abducted Cooper.

Believing that Cox was the principal actor — but also that Hood was an accomplice — prosecutors offered Hood immunity in exchange for his testimony.  Hood was presented with “statements” that he and Cox had abducted and murdered Cooper, and at the urging of his attorney, he adopted these statements as his own.  The theory of the crime was somewhat vague, with the Commonwealth seemingly unsure whether the abduction was with the intent to rob Cooper or sexually assault her, or both.  This theory was complicated by the fact that there was neither evidence or robbery — her jewelry was not taken — nor of sexual assault — although her close were “in disarray,” there was no evidence of trauma suggestive of a physical violation.

Cox was convicted of abduction and murder, and his appeal to the Court of Appeals was refused.  Cox’s attorney failed to seek an appeal of that decision to the Supreme Court of Virginia.  This was back in the day when a delayed appeal could only be granted by filing a habeas corpus which had to include all other bases for overturning the conviction or they would be deemed waived.  Cox, perhaps wisely as it turned out, elected not to seek a delayed appeal at that time.  He then spent the next decade in an effort, both pro se and with the assistance of counsel, seeking to challenge his convictions. I will not go into the details of these efforts that led to Cox’s eventual exoneration, which you can read about in the National Registry of Exonerations. Let it suffice to say that the evidence against Cox was shown to be a tissue of lies and that Cox had an airtight alibi for the time of the abduction and murder.  After his release from prison, the General Assembly passed a compensation bill awarding him $750,000.

And that should have ended this sorry affair.  Except, the Commonwealth still had Hood’s “confession.”  Theorizing that Hood had agreed to the immunity deal to cover up his guilt as the actual murderer, the prosecution indicted Hood and successfully convinced the circuit court to throw out the immunity deal on the basis that Hood’s “statements” implicating Cox were perjured. The Commonwealth also persuaded the court to prohibit Hood from presenting any evidence with respect to Cox’s conviction and exoneration to a jury.  As a result, Hood opted for a bench trial,

Now the case gets even murkier, as the Commonwealth’s theory was that Hood was the principal actor, but the evidence actually implicated Madison, with hood as an accomplice, because the Commonwealth had reverted to “revenge for a drug deal gone wrong” theory, and Madison was the victim of the robbery and beating.  The circuit court rejected Hood’s claim that his initial “confession” implicating Hood had been coerced, but struck the more serious charges and convicted him as a second degree principal in the murder and an accessory after the fact to the abduction. Hood filed an appeal to the Court of Appeals, which upheld his conviction in a 2-1 decision with Judge James Benton dissenting. The Supreme Court of Virginia affirmed the decision of the Court of Appeals.

We pause now in our main story, the bring in some relevant facts.  Anyone who was living in Richmond in the mid-90s probably remembers the investigation into the Golden Years Murders.  For the better part of a decade, elderly black women were abducted, sexually assaulted and murdered, the work of an apparent serial killer.  A special task force was formed to investigate the crimes.  Eventually, Leslie Leon Burchart, a mentally ill homeless man, was convicted of several of those murders.  Why is this relevant?  Because it was subsequently alleged, with very credible support, that Burchart was probably guilty of additional murders — including Coopers.  While this was far from certain (and there was much stronger evidence in another case that a person had been wrongfully convicted of a murder likely committed by Burchart), it was clear that Richmond Police had not pursued leads in these cases that would have linked Burchart to the murders.

After Burchat was convicted, Hood was sought a writ of habeas corpus from the Circuit Court of the City of Richmond.  It took the court nearly five years to resolve the petition, eventually concluding that Hood’s trial had been a clusterf**k of errors by his counsel and likely misdeeds by the prosecution.  Predictably, the Commonwealth sought to appeal this decision.  However, the appeal was subsequently withdraw when Hood agreed to enter an Alford plea to attempted abduction with a sentence of time-served.  It is easy to understand why Hood would do this.  Even if the Commonwealth’s appeal of the habeas had been unsuccessful, Hood was likely facing a retrial in which, given his past experience, his confidence of an acquittal was understandable low.

Which brings us to his petition for a writ of actual innocence.  Hood was asking the Court of Appeals to find that he as actually innocent of the convictions that were vacated by the habeas order. While this would not have resulted in the vacating of his conviction under the Alford plea, it would have gone a long way to acknowledging that he was likely the victim of an overzealous prosecution.

The problem is, as Judges Humphrey and Causey and Senior Judge Clements see it, is that the Court does not have jurisdiction to consider a writ of actual innocence under these circumstances.  Recognizing that this is unique situation, the Court analyzes its statutory jurisdiction and concludes that writs of actual innocence are available only to set aside a conviction of a felony offense — the accessory after the fact offense was, at that time, a misdemeanor and so wouldn’t be reviewable in any case, as pointed out in a footnote — but the convictions have been vacated, rendering them a legal nullity.  As the convictions do not legally exist, the Court concludes that it has no jurisdiction to determine is Hood was actually innocent of the crimes.

I have not fault with the reasoning of the Court — the statute permitting writs of actual innocence just didn’t anticipate this type of case, not is it likely the General Assembly would have given such authority to the Court of Appeals had it been anticipated. My issue with the case is more fundamental.  Too often I have seen criminal cases, a prime example being the repeated attempts to impose the death penalty on Darryl Renard Atkins, where the Commonwealth pursued a defendant relentlessly despite increasing evidence of his likely innocence.

In the Atkins case, it was ultimately revealed that Atkins, while an accomplice to the robbery of a young sailor and present at his subsequent murder, had been railroaded by an unscrupulous prosecutor who determined that because Atkins was developmentally disabled a jury would be more likey to impose a death sentence on him than on his accomplice.  The prosecutor then coached the accomplice to change his statements to implicate Atkins.

I will not recount the long and tortured process that followed, but will say this: I was responsible for reviewing the evidence from Atkins’ first trial — before the prosecutorial misconduct was revealed.  After studying the physical evidence and the testimony of the accomplice, I was convinced beyond any doubt that the accomplice had been the shooter and, in all likelihood, Atkins had tried to prevent the murder. Unfortunately, by this time, Atkins “guilt” had been established and the only issue was whether the Commonwealth could put to death a developmentally disabled person without giving the jury an opportunity to weight this as a mitigating factor.  The case went all the way the the United States Supreme Court, which reversed the death sentence.  The Commonwealth was able to obtain a death sentence from a second jury, but that sentence was also set aside, this time by the Supreme Court of Virginia.  It was while Atkins was awaiting his third penalty proceeding that his accomplice dies in prison, and the accomplice’s attorney, freed from the attorney-client privilege, revealed that his client had admitted his role as the shooter and that the Commonwealth, aware of this claim, had nonetheless proceeded to use his testimony against Atkins.

With this revelation, the trial judge ruled that no reasonable jury would have convicted Atkins as a principal in the first degree, which is required to impose the death sentence, and entered a judgement sentencing Atkins to life in prison.  The Commonwealth then did something that I find to be inexcusable — it sought a writ of mandamus to the trial court directing it to vacate the sentence and to permit the Commonwealth to seek a third death sentence from a jury.  The Supreme Court of Virginia refused the petition.

The present case is perhaps not as grave as the Atkins case, it is still incomprehensible to me that that Commonwealth would continue to seek a conviction against Hood, who spent nearly a decade in prison, given the absolute certainty that obtaining a conviction against him was a dicey prospect at best.  Unlike in Atkins, I have not had the opportunity to review the evidence first hand and in detail, and I suppose it is possible that there was some credible evidence that linked Hood to the abduction and murder of Cooper.  But I do not see the conviction of Hood by an Alford plea to “attempted abduction,” a crime that he most certainly did not commit, as Cooper was actually abducted, as in any way constituting “justice.”