Next hearing set for man seeking exoneration in attacks

The Virginia Court of Appeals has scheduled a March 30 hearing in the case of Thomas E. Haynesworth, a Virginia inmate seeking exoneration in two 1984 attacks on women.

The court set aside 40 minutes for arguments, although Virginia Attorney General Ken Cuccinelli and prosecutors in Richmond and Henrico County are backing, not opposing, Haynesworth's bid for freedom.

Christopher Mann, a spokesman for the attorney general's office, said the hearing is part of the court's deliberative process. "We don't know what kind of questions the court may have," he said.

Cuccinelli is supporting Haynesworth and has asked the court to consider Haynesworth's petition as quickly as possible. Peter Neufeld, a co-founder of the Innocence Project, said Tuesday that he will be appearing on behalf of Haynesworth at the hearing.

Haynesworth, 45, has been in custody since 1984, when five women identified him as their assailant in a string of attacks. One of the five cases was not prosecuted; he was convicted in three and acquitted in another.

DNA testing in recent years cleared him in two attacks — one that led to a conviction and the other in which he was acquitted — and implicated Leon W. Davis, 46, a former neighbor and serial rapist known as the "Black Ninja," now serving a life sentence. No biological evidence remains to be tested in his two remaining convictions, for which he has passed lie-detector tests.

DNA testing proves that at least two women mistook Haynesworth for Davis, and Haynesworth's lawyers contend that he was mistakenly charged and convicted for similar crimes that Davis, whom Haynesworth resembled, actually committed.

Michael N. Herring and Wade Kizer, the commonwealth's attorneys for Richmond and Henrico respectively, agree and support Haynesworth's petition for writs of actual innocence filed last month.

Although no one opposes Haynesworth's petition, it is not clear whether all of his new evidence is admissible.

In 2009, Haynesworth was the first inmate exonerated by the Virginia Supreme Court on a writ of actual innocence based on DNA for one of his three convictions. Writs of actual innocence based on non-biological evidence are considered by the appeals court.

Haynesworth's petition before the appeals court on his two remaining convictions hinges in part on the DNA evidence in the two other cases.

The court of appeals has granted only one writ of actual innocence, in 2008, though it has yet to free anyone from prison.

Among other things, Haynesworth must show, "no rational trier of fact could have found proof beyond a reasonable doubt based upon the newly discovered evidence."

His lawyers say that if the DNA evidence was available in 1984, no reasonable juror would have found him guilty.

Haynesworth's petition argues, "If, as the Virginia legislature plainly contemplated, there is ever to be a case for which a writ of actual innocence is granted based on non-biological evidence, this is it."

Kathleen Ortiz, a public defender for the city of Chesapeake who won the only writ of actual innocence granted by the appeals court, said the attorney general did not oppose the petition in that case, either, but that no hearing was held.

She said the court of appeals in that case said it was not bound to accept any concessions of error made by authorities and that the court would make its own determination whether relief should be granted.

She said the Haynesworth case appears to be the kind in which the court of appeals will be very cautious.

David B. Hargett, a lawyer representing another inmate seeking a writ, says of Haynesworth's upcoming hearing, "I would imagine that it's essentially to make sure that the court's comfortable with doing it even though the parties agree."

Even in plea agreements where both sides agree on the matter, a judge will still hold a hearing, Hargett said. "It gives the court an opportunity to ask some questions that might need asking to make sure they're comfortable with granting relief," he said.

fgreen@timesdispatch.com

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