Haynesworth attends appeals hearing on his innocence bid

Released from prison last week and wearing a new suit, Thomas E. Haynesworth had a front-row seat this morning as lawyers argued for his exoneration.

Three judges of the Virginia Court of Appeals asked some tough questions of his lawyers and the Virginia Attorney General’s Office.

But both sides reasserted their strong belief that Haynesworth is innocent of rape and other convictions in two 1984 attacks against women in Richmond’s East End and eastern Henrico County.

“Our position is he is actually innocent,” said Assistant Attorney Genearl Alice T. Armstrong. “This case is unique and it is different from other actual innocence cases this court has addressed.”

Following the hearing, Haynesworth said he was pleased with the proceeding, although, “I was kind of anxious – back in a courtroom.”

“I’m a little bit edgy. I’m going to wait it out and be patient,” Haynesworth, whose mother was seated next to him in court.

During the hearing, Judge James W. Haley Jr. asked if a juror couldn’t -- even in light of new DNA and other evidence supporting Haynesworth’s claims of innocence -- still have sided with the victim’s identification of him and voted to convict.

He also said he could not imagine prosecutors who, also knowing about the DNA evidence supporting Haynesworth’s innocence claims in other attacks, would tell a victim they did not believe her.

Peter Neufeld, a cofounder of the Innocence Project and one of Haynesworth’s lawyers, said if a juror did vote for conviction, “I don’t believe they’d be rational.”

Neufeld said prosecutors could tell victims they were mistaken, rather than that they were not believable. The Innocence Project has documented dozens of rape cases where DNA has proven wrong rape victims who were certain about their assailant’s identification.

Richmond Commonwealth’s Attorney Michael Herring, who attended the hearing, said afterwards he found it interesting that one of the judges was surprised that a prosecutor might not go forward with a case in light of new evidence.

“I don’t know of a prosecutor who would,” said Herring. He said he would explain to the victim that in light of the evidence, it would not be ethical to go forward. Herring and his Henrico County counterpart, Wade Kizer, both believe Haynesworth is innocent.

Haynesworth, 46, was convicted of various crimes in a series of rapes and other attacks on five women that occurred in early 1984 in Richmond's East End and eastern Henrico County.

His has been exonerated by DNA in one case and was paroled last week at the request of Gov. Bob McDonnell as he fights to clear his name. Haynesworth; his mother, Delores Haynesworth, 67; two sisters and a niece attended the hearing in the small, packed courtroom.

Haynesworth was arrested in February 1984, near his family’s apartment in Richmond’s East End, not far from where he lives now with his mother and near the scene of the Richmond and eastern Henrico County attacks.

Five women identified Haynesworth as their assailant. In the end he was convicted in three attacks; one case was not prosecuted and he was acquitted in another.

Haynesworth contends the assaults were committed by Leon W. Davis Jr., 47, a former East End neighbor and a serial rapist now serving life. DNA testing in 2009 and again last year proved at least two of the five women victims mistook Haynesworth for Davis.

In 2009, Haynesworth became the first person exonerated by the Virginia Supreme Court in a writ of actual innocence based on new DNA evidence for his convictions in a Jan. 3, 1984 rape in the East End.

The other DNA testing implicating Davis was in the case in which Haynesworth was acquitted. Extensive searches by his lawyers and authorities failed to find any evidence for DNA testing in his remaining cases, one in Richmond and the other in Henrico.

That led to this morning’s hearing before the Virginia Court of Appeals which considers petitions for writs of actual innocence based on non-DNA evidence. The Virginia Supreme Court considers writs based on DNA evidence.

Haynesworth's lawyers, supported by Henrico and Richmond prosecutors and Virginia Attorney General Ken Cuccinelli, argue that evidence shows the five attacks were committed by the same person and were strikingly similar to the crimes committed by Davis after Haynesworth was arrested.

Haynesworth’s last conviction was in October 1984, well before Davis was finally arrested in December of that year.

Had the DNA and other new evidence been known when Haynesworth was being tried in 1984, Haynesworth's advocates contend, “no rational trier of fact could have found proof beyond a reasonable doubt based upon the newly discovered evidence.”

The court of appeals has granted only one writ of actual innocence, in 2008. It is not known when the court of appeals panel might rule. Shawn Armbrust of the Mid Atlantic Innocence Project said there could be a decision in six to eight weeks.

(This has been a breaking news update. Read more in tomorrow's Richmond Times-Dispatch.)