To right a wrong

In 1985, the commonwealth of Virginia came within nine days of executing one of its citizens for a crime he did not commit. Earl Washington Jr., a man with an intellectual disability and a tendency to defer to authority figures, was on death row after confessing to a 1982 slaying when a last-minute habeas corpus petition delayed his execution. Its central argument was wrongful conviction — that Washington was convicted as a result of being denied competent representation during trial and sentencing.

In 1993 and again in 2000, newly available DNA testing inched his case even closer to the actual truth: Not only was his trial rife with constitutional errors, he was not even the source of the biological evidence used to convict him. In other words, he was factually innocent. However, Virginia law at the time gave him no legal recourse for introducing this new evidence. Only after Gov. Jim Gilmore issued a full pardon in October 2000 was the path cleared for his 2001 release.

Shaken by the near-catastrophic outcome in Washington’s case, the Virginia General Assembly in 2004 opened the door to post-conviction claims of actual innocence with legislation that gave the Court of Appeals the power to issue writs of actual innocence, subject to review by the Virginia Supreme Court.

In that same year, Mary Tate — at the time an attorney in private practice with experience in post-conviction representation — found herself at Richmond Law listening to a talk by a man named Marvin Anderson, who told his story of being exonerated after 15 years in prison with the help of the Mid-Atlantic Innocence Project. In brief remarks after his talk, then-dean Rodney Smolla voiced his hope that Richmond Law might start an innocence project.

Tate called Smolla the next day. Her message: I’ll help you do it. Six months of pro bono groundwork later, she was presenting a plan to the faculty, which approved it, creating Richmond Law’s Institute for Actual Innocence with Tate as its founding director.

As the clinic marks its 15th anniversary in 2020, Tate remains at the helm, having blazed a trail that has led other universities to create similar clinics, secured exoneration and other post-conviction relief for wrongfully convicted clients, and expanded the opportunities available to Richmond Law students.

The institute’s mission is as much about legal education as it is about the public good. Each year, it takes on a cadre of law students, typically 2Ls, who devote hundreds of clinical hours to researching case law, writing briefs, and interviewing clients, all under Tate’s direction, in felony cases in which there is credible evidence of the convicted person’s innocence. The clinic also assists convicted individuals in the federal correctional system who pursue clemency relief. It focuses on Virginia.

The National Registry of Exonerations documented 2,372 cases from 1989 through the end of 2018 nationally involving people convicted of a crime and later officially declared innocent or otherwise relieved of the legal consequences of that crime. These systemic failures are much more than individual tragedies for the people wrongfully convicted and the victims whose perpetrators remain at large, says Tate.

“We cannot overstate the importance that wrongful convictions have in terms of an individual life. That is central and cannot be forgotten,” Tate says. “But wrongful convictions are also tremendously dangerous in terms of a systematic threat to the legitimacy of the criminal justice system. … They erode confidence in our justice system, and our justice system is the system that makes decisions about life or liberty.”

Outcome errors such as wrongful convictions and excessive sentencing also exacerbate another pernicious issue that vexes the justice system: pervasive inequality.

These errors “do not play out randomly,” Tate says. “They do not play out in a scattered fashion that we cannot predict. Wrongful convictions play out in a race-based, class-based way, meaning that if you are poor or if you are a member of a racial minority, you are much more likely to be a victim of a wrongful conviction.”

Advocating for the rights of people wrongly convicted of serious crimes is a hard slog. The legal hurdles are high, the timelines are long, and positive results are few and far between.

A significant victory for the clinic can be as seemingly small as the change of a single letter to one word in one sentence of one law.

In 2013, Tate and others successfully lobbied for a change to a section of Virginia law that said that someone claiming actual innocence needed to prove that “no rational trier of fact could have found proof beyond a reasonable doubt.” The word “could” was amended to read “would,” lowering the burden of proof from “the whole universe of possibilities” to “what would be foreseeable to occur,” Tate said.

Virginia’s Supreme Court agreed, writing in a subsequent ruling that this seemingly small modification “fundamentally changed the nature” of actual innocence inquiries.

As the institute marks its milestone, Tate is proud of its accomplishments. She notes that the size of its staff — the legal work is done solely by her and her students — puts it at the smaller end of the spectrum among the several dozen domestic projects that do innocence and other post-conviction work. “This fact has not stopped it from securing significant wins, effecting change, and raising awareness,” she says.

As the first in-house residential Innocence Project run by a faculty member in the state of Virginia, it was a trendsetter, and others followed — William & Mary in 2006 and University of Virginia in 2008, for example. The more the better, in Tate’s opinion. More clinics mean more resources available to meet the need for competent representation and more opportunities for future attorneys to develop a deeper understanding of some of the hardest work a lawyer can take on.

“Our law students are at the very heart of our cases,” she said. “We function as a law firm, in effect.”
Students who become involved with the institute take a Wrongful Convictions course that is oriented toward legal theory and addresses the many causes of wrongful conviction. They then enroll in a clinic where they work in teams to perform legal work that spans the full spectrum of legal skills from research, writing, and analysis to negotiation, strategy, and litigation. They might also visit prisoners, interview witnesses, collaborate with forensic experts, or investigate crime scenes, depending on the needs of the case.

“You feel lucky to work on [an actual innocence case] because it feels pretty black and white,” says Alta Viscomi, L’20, who was part of the clinic during her 2L year. “Most people are going to immediately agree with you that it’s wrong that someone [who] didn’t commit a crime is in jail for that crime.”

Her experience with the clinic underscored for Viscomi the enormous difficulty of arguing for someone’s actual innocence after a conviction.

“What makes it hard is that the system is set up to distrust everyone who says they were wrongfully convicted,” she said. “At every turn, there’s this concern for backlogging the system with all these superfluous petitions, people who just can’t admit to themselves that they really did something and they just want to not be held accountable for their actions.”

If one side of the coin assumes bad faith on the part of petitioners, its flip side is an equally strong reflex to assume good faith on the part of investigators and prosecutors, Viscomi said. “It can be hard to overcome a presumption that the agency that was investigating your client was in the right and seeking justice, and your client was concealing what they did,” she said.

Viscomi came away from the clinic experience with a deep appreciation for the persistence required as cases drag out over years. As she worked on cases for current clients, she found herself reading letters that Tate had drafted years earlier on their behalf. A video chat with a client petitioning for a writ of actual innocence from a prison in western Virginia further underscored the stakes of this advocacy.

“The client was 16 when he was sent to jail, and he is 45 or 47 now,” Viscomi said. “I think considering something like that, it’s just beyond what I can comprehend someone’s life being.

“He had interests. He had hobbies. … I think it makes sense for a lot of people to assume that when you go to prison, especially when you’re a kid, you don’t really have an opportunity to grow past that. But I think our client, and a lot of people who get this far in the process, they’ve grown despite all of the oppression and the lack of stimulation and the violence that they face in their day-to-day lives.”

As she approaches graduation, Viscomi pictures herself at the front end of the process, working in criminal court as either a prosecutor or defense attorney. She spent a summer working in each realm, first in a public defender’s office and then in a prosecutor’s office. The structural critique of the criminal justice system inherent in the work of the clinic will shape how she approaches work in either type of office, she said.

Post-conviction relief work, she ultimately concluded, was not for her. “I didn’t expect the timeline to feel so hard,” she said. “It taught me that it takes a really specific kind of personality.”

Lindsey Vann, L’12, has that personality. She was active in a death penalty clinic as an undergraduate at Cornell University and came to Richmond Law in part because of the Institute for Actual Innocence. Today, she is executive director of Justice 360, which represents clients on death row in South Carolina and serves as a death penalty resource center for the state. The clinic reinforced her tenacity and resilience in a field where successes are few and far between.

“Unfortunately, as criminal defense attorneys, you kind of learn that you have to take your victories where you can get them, and you have to be creative and flexible and willing to be in it for the long haul,” she said. “In my work, death penalty cases take decades, and I’m still working on cases that I had when I first got here with no real end in sight. Just kind of sticking with it, being willing to change course and seek relief in different avenues and trying to be creative in the ways that you get a better outcome for your client are definitely some things that I learned in that clinic and have put into practice here.”

For Vann, like Viscomi, one of the institute’s most important lessons is “how hard it is in the criminal justice system to right a wrong,” she said. “That’s something that I’ve learned even more after law school, that once there’s a conviction in place, it is really challenging sometimes to get in and get courts to hear issues or be able to prove things that you believe are true.”

For former institute client Garry Diamond, it took four decades. In 1976, Diamond’s bad conduct in one case was compounded by bad timing in another. He had been arrested and accused of sexually assaulting a woman at a highway rest stop when he was falsely identified as the perpetrator in a similar case that was eventually charged as a triple kidnapping of the victim and her two children. He now acknowledges his responsibility in the first case but was convicted and sentenced after fighting against both cases in 1977.

In 2005, the Virginia Department of Forensic Science began testing evidence in old cases after the discovery of biological material in the files of a former state forensics lab worker who saved samples from her tests. When a small sample test of 31 cases resulted in three exonerations, the state ordered the reexamination of all of the materials, eventually getting to evidence collected in Diamond’s second case. By the time he got a letter from the state of Virginia offering to retest materials from his case, he was decades removed from the end of his prison term and had built a new life in another state.

“I sat on [the letter] for a couple of weeks. I didn’t do anything,” he said. “My first reaction was, ‘Why? What are we doing this for?’ Then I talked to my dad about it actually, and my dad told me, ‘If you’re innocent, go for it.’”

When Diamond replied, the state put him in touch with the Mid-Atlantic Innocence Project, and his case eventually made its way to Tate and Richmond Law’s clinic, which helped him secure a writ of actual innocence in 2013.

“This was an opportunity to prove that, even if it was just on the second case, I was telling the truth,” Diamond said. “I didn’t do it. I would not have pursued this avenue with the first case, whether I could have or not, because I had come to a point where I accepted on the first case that I was wrong, so I would not have done that. But on the second case, I always held in my mind a sense of anger about being convicted of that, I guess you could say. So when I had an opportunity to prove that I was telling the truth, I wanted to do it.”

This reasoning, for Tate, is precisely the point of righting wrongs in the criminal justice system, even if the corrections come decades later for clients no longer behind bars.

“There is a particular psychic injury that comes from [wrongful conviction],” said Tate, who regularly teaches a first-year seminar on wrongful conviction to undergraduate students. “I’ve been going to Virginia prisons for almost 30 years. The carceral state, it’s a brutal physical space. Being sent to prison is [a form of] exile. You are cut off, and then when you have an individual who has not done that thing for which they have been isolated, it’s a double isolation because it causes an incredible psychological break from the group, in that the individual no longer has any basis to trust that group.”

Over its 15 years, the clinic has expanded its work from actual innocence cases to other types of advocacy related to wrongful conviction, such as cases in which defendants are excessively charged or sentenced, relative to others who are similarly situated. In November 2019, Jens Soering, a German national convicted for murder in 1985, was paroled and deported after years of advocacy. His lawyers asked Tate to consult and then advocate on his behalf after forensic analysis unavailable at the time of his conviction excluded him as the source of blood found at the scene of the crime. Tate and the institute also consulted on the high-profile Norfolk Four case, in which four Navy veterans were exonerated through absolute pardons in 2017 of a 1999 rape and murder in Norfolk, Virginia.

Another case is that of Dujuan Farrow, who received a presidential commutation in 2017, giving him relief from a long prison sentence for a low-level offense.

Tate believed the evidence showed that Farrow may have suffered from drug addiction, but he wasn’t a drug dealer. When he was arrested, he was a passenger in a car driven by a childhood friend who had secured the drugs that police found. The more culpable friend took a plea deal and got a sentence of 10 to 15 years, but Farrow paid a price for fighting the charges when a jury sentenced him to life in prison without parole in 2015, a sentence grossly disproportionate to today’s sentencing standards. When the Obama administration issued the commutation, Tate got to deliver what she later called “one of the most joyous phone calls I ever got to make.”

“What struck me about the case is, I felt it was a humanitarian problem,” Tate said in 2017, shortly after the commutation. “There was such a gap between the conduct that he was charged with versus the punishment.”
Students worked on Farrow’s case for two years, she said.

“They did all of the research, the writing, under my supervision,” she said. “My students got to experience the joy and the confidence that comes with knowing that two years of hard work led to changing this human being’s life.”