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Let’s Twist Again, Like We Did Last Summer! One Published Decision Today from the Court of Ap

The Court of Appeals released one published decision today, but not in an appeal.  Rather, the Court under took to review a writ of actual innocence, which is an “OJ” proceeding.  OJ stands for Original Jurisdiction, which means that the petition is filed directly in the Court of Appeals, not in a circuit court.  Moreover, in the Court of Appeals the issue is one of factual innocence based on some evidence other than biological evidence.  DNA cases go to the Supreme Court.  If this sounds like a familiar entry to a blog post, it’s because we had a similar instance back in August of 2021 and then again in April of this year.  As in those prior instances, the Court issued a published order, not an opinion.  While technically there is no reason an appellate court couldn’t issue an “opinion” in an OJ case, the more usual course is to issue an order.

Unlike those to prior instances where the issues were fairly straightforward, I suggest you hang on tight, because today’s decision has more twists than the dance scene in Pulp Fiction.

The order in today’s case involves the petition of Terence Jerome Richardson, who was convicted upon a guilty plea of involuntary manslaughter in 2000.  Now, those who know a little about appellate law will say, “Wait, doesn’t a guilty plea waive the right of appeal,” and of course it does (except under very limited circumstances).  Remember, however, that while this case is being heard in the Court of Appeals, it’s not an “appeal.”  A guilty plea does not waive the right to all post-conviction relief, so writs of habeas corpus, actual innocence, mandamus and prohibition and and coram vobis and coram nobis remain available to defendants who have plead guilty.

Now considering the facts, I would suggest that a plea to involuntary manslaughter was a particularly good deal and I can see why Richardson followed advice of counsel to take the plea. The facts, or rather the particular fact, that makes me think this was a good, maybe even great, deal is that the victim was a 25-year-old police officer who had been shot with his own service revolver.  The incident took place in the town of Waverly, which is a small town in Sussex County on US 460.  I’ve been through it many times on my way to Virginia Beach and the Outer Banks and I can assure you that it’s the sort of place where folks know everybody and would look dimly on the killing of a police officer — and that Sussex County is pretty much the same — Waverly is the largest town in the county, which has a total population of just over 10,000.  Richardson was indicted for capital murder and almost certainly would have faced the death penalty — so involuntary manslaughter — the least significant homicide charge available — was a gift.

The evidence presented at the plea hearing showed that Richardson and two others had gone to an apartment complex to purchase drugs and had gone behind the apartments to a wooded area.  While it is unclear what drew the officer to that same area, when he struggled with Richardson and was shot with his own weapon.  Richardson later told an accomplice that the gun had gone off accidentally during the struggle.  Richardson answered all of the questions at the plea colloquy appropriately.  He was sentenced to 10 years imprisonment with 5 years suspended.

Now comes the interesting twist.  Richardson was then indicted in federal court for conspiracy to distribute controlled substances, use of a firearm in the court of drug trafficking, and murder of a law enforcement officer.  Knowledgeable readers (or at least those who remember their civics class for middle school) know that this last charge is not in violation of double jeopardy because the United States is a separate sovereign, and while it is unusual for federal prosecutors to pursue duplicative charges when a defendant has been convicted in a state court, it’s not unconstitutional to do so.  So the twist is not that Richardson was charged with murdering the officer, but that he was acquitted of that charge along with the firearms offense.

Wow, I can here your say, this guy must be the luckiest son-of-a-gun ever.  Well, not quite.  You see at the sentencing for the conspiracy charge, of which he was convicted, the US Attorney argued that even though acquitted of the murder charge in federal court, the state court conviction could still be used to enhance the penalty for the conspiracy charge — and that meant a life sentence.  The district court agreed.

Richardson appealed to the 4th Circuit, which affirmed and the Supreme Court denied cert.  Habeas proceedings on the federal charge likewise did not result in overturning the sentencing.  Richardson even sought clemency from President Obama, which was denied.

Which brings us to today’s decision in Richardson’s petition for a writ of actual innocence.  As you have probably surmised, Richardson is not so much concerned about the five year sentence or the five year comeback time, but on finding a way to get out from under the federal life sentence.  His case for actual innocence involves evidence that tended to show that a man with a similar appearance to Richardson, Leonard Newby, was the actual perpetrator.  The accomplice had originally told police (after first denying any knowledge of the crime) that it was Newby who had shot the officer.  He testified, however, that this was a lie and that he named Newby because of his similar appearance to Richardson.  Richardson produced an affidavit from a women who was nine-years-old at the time of the shooting and allegedly saw the perpetrator fleeing the scene and selected Newby’s picture from a photo array.  He also maintained that Newby had been identified as the perpetrator in an anonymous 911 call.  Richardson claims he became aware of this evidence in 2018 or later.  Richardson also asserted that his acquittal in the federal trial established that no reasonable trier of fact would have convicted him on the evidence presented at his plea hearing.

Now there is an even more interesting twist in a case chock full of them, in initially responding to Richardson’s petition, the Attorney General conceded that there was a basis for overturning conviction, or at the very least sending to case to the circuit court for an evidentiary hearing.  Richardson’s luck, which had departed him in the federal appellate process had returned!

Or not.  You see that response was filed back in 2021.  Then there was a changing of the guard in the AG’s office, and the Commonwealth sought to withdraw its original response and submit a new one.  The Court permitted the Commonwealth to do so, and that response was . . . ahem . . . decidedly not in favor of the Court granting the petition and setting aside Richardson’s conviction.

Today, the Court in a panel consisting of Judges Beales, O’Brien, and Fulton, dismisses the petition, finding that Richardson had not met his burden to establish by a preponderance of the evidence presented that he was actually innocent of the crime to which he plead guilty.  Now one of the things that is required for the court to consider any evidence not presented in the circuit court is that it must be “new” evidence — that is, not evidence that could have been discovered by an application of due diligence by the accused or his counsel prior to the trial (or plea hearing).  Now, unfortunately for Richardson, the Commonwealth had actually subpoenaed the nine-year-old child to testify at the prospective trial, so both her existence and her alleged identification of Newby could have been discovered with fairly minimal effort.  Granted, if counsel had attempted to interview the child, her parent or guardian could have prohibited it.  But there is no allegation her that the child, or her potential evidence, was withheld from counsel.  In fact, the record established that the Commonwealth’s Attorney in Sussex had an “open file” policy and conducted a least one major discovery conference with defense counsel to review the Commonwealth’s expected evidence.

So why didn’t counsel follow up on this witness?  Well, it’s purely speculation, but I think it’s fair to say that Richardson’s claim that the child “identified” Newby is a somewhat charitable description of the evidence.  At best (from Richardson’s perspective) the child saw someone running away from the crime scene shortly after the shooting, but did not see the person’s face.  The “photo array” did not show anyone from the front (as the child was had not seen the face), but instead showed “silhouettes” of side views of persons with different hair styles, and the child identified one style of dreadlocks, which both Newby and Richardson wore according to the accomplice, though Richardson now maintains that he wore his hair in cornrows.  My guess is that counsel either decided that this evidence was not helpful, or was so intent on getting a reduced plea that he simply did not bother to follow up.  While that may be a questionable choice, that would be an issue for habeas, not actual innocence.

With respect to the 911 call, the court noted that the call was anonymous and therefore the reliability of the caller could not be determined.  Even assuming the call could have been presented at trial, it fall well below the standard for establishing the Richardson could not have been guilty.

Finally, the Court address the federal acquittal on the murder charge.  And here is the final twist in this ever twisting case.  Because being acquitted of murder does not equate to the impossibility of being guilt of involuntary manslaughter.  You see, murder is an intentional crime which requires malice aforethought.  There were also a lot of other factors required to be shown in the federal trial which would not have applied to a state involuntary manslaughter charge.  So it’s entirely possible that the jury or trial court (the order does not say how Richardson was tried in federal court) may very well have believed that Richardson accidentally shot the officer, but did not murder him.  Again, this does not meet the standard for actual innocence of the crime for which Richardson was convicted.

On final note.  The Court did not say or even imply that had Richardson plead guilt to a murder charge that the subsequent acquittal in federal court would have been sufficient to support a writ of actual innocence — even though that was the basis on which the former Attorney General was conceding the merit of the petition.  The Court was silent on this topic, but I will not be.  The former AG was absolutely, positively WRONG to take that position.  Why am I so certain?  Because it is the longstanding law of Virginia (and every other state and federal jurisdiction) that verdicts stand on their own merits — inconsistent verdicts between two trials — of accomplices in the same jurisdiction or the same defendant in different jurisdictions — are perfectly proper.  The trier of fact in one case may find the prosecution’s witnesses credible, which in the other case a different trier of fact decides the witnesses couldn’t lie straight in a narrow bed.  Perhaps the court in one case admitted some evidence that was excluded in the other.  Or perhaps the judge or jury just felt like being merciful on that particular day.  In any case, an inconsistent verdict is not, without more, proof of actual innocence in a prior case.

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