Entire Court of Appeals to consider Haynesworth case

In an already unusual case, the entire Virginia Court of Appeals has decided to take up Thomas E. Haynesworth's bid for exoneration.

A three-judge panel of the court heard arguments in March on Haynesworth's petition for writs of actual innocence that would vacate a 1984 abduction conviction in Richmond and abduction and rape convictions in Henrico County, also in 1984.

Virginia Attorney General Ken Cuccinelli, along with the commonwealth's attorneys for Richmond and Henrico, Michael Herring and Wade Kizer, respectively, are backing Haynesworth's claim of innocence.

According to Cuccinelli's office, Haynesworth, Cuccinelli and the two prosecutors are expected to attend the Mid-Atlantic Innocence Project's annual luncheon in Washington today.

"Attorney General Cuccinelli will speak on his ongoing support of Mr. Haynesworth's case and his support of the writ of actual innocence while serving in the Virginia Senate," his office said in a statement.

In its two-page order last Thursday, the appeals court notified Haynesworth and Cuccinelli that the full court, on its own motion, has decided to hear the case "en banc."

The court also asked three questions of Haynesworth's lawyers and Cuccinelli's office, among them: "Is the Attorney General's stated position that Haynesworth did not commit these crimes a concession of fact or a confession of error?"

Reached by phone Tuesday, Haynesworth declined to comment. A spokeswoman for the attorney general said, "We are preparing for a hearing sometime this fall but have no further comment other than that."

Peter Neufeld, a founder of the Innocent Project, said, "We are very confident that in a case where both commonwealth's attorneys and the state attorney general support his writ of actual innocence — because they all believe that Thomas is innocent — we will prevail in the court of appeals."

"I look forward to being heard en banc," said Neufeld, who is co-counsel for Haynesworth along with the Mid-Atlantic Innocence Project.

Arrested when he was 18, Haynesworth spent 27 years behind bars for crimes that authorities, supported by DNA evidence, now believe were committed by his former neighbor, serial rapist Leon Davis Jr. who is serving life for other attacks.

Haynesworth was paroled in March on his 46th birthday at the request of Gov. Bob McDonnell and now works in Cuccinelli's office in the mail and supply rooms.

Biological evidence remained in only two of the four cases for which Haynesworth was prosecuted in 1984, and in recent years DNA testing proved that Davis, whom Haynesworth resembled at the time, committed both of those crimes.

No evidence remains for testing in the two other cases, prompting his bid for writs of actual innocence based on newly discovered, non-DNA evidence with the court of appeals under a law enacted in 2004.

Had the DNA evidence been known in 1984 — when DNA testing was not available — Haynesworth's supporters believe he would not have been convicted in the remaining cases. Prosecutors say Haynesworth would not even have been charged.

But in order to be cleared by the appeals court under the 2004 law, Haynesworth must show that "no rational trier of fact could have found proof beyond a reasonable doubt based upon the newly discovered evidence."

Although DNA proves that two of the four women were mistaken, writs of actual innocence involving biological/DNA evidence are handled by the Virginia Supreme Court (in 2009, Haynesworth was the first person to be granted such a writ by the justices).

Haynesworth passed polygraph examinations on his remaining convictions, but such evidence is not admissible in courts.

The court of appeals is faced with two convictions in which the juries believed the identifications made by the victims — even if it has now been proved that two other women mistook Haynesworth for Davis.

The judges' order last week asks what, if any, newly discovered nonbiological evidence conclusively establishes that the same person (Davis) who attacked the other women attacked the two whose cases are now before the appeals court.

The judges also asked, "as a matter of law, is this court bound by the attorney general's concession of fact or confession of error in the context of each of the petitions for writ of actual innocence before the court?"

Haynesworth's lawyers were given 21 days to respond with a brief and Cuccinelli's office 14 days after that to respond.

Kathleen Ortiz, a Chesapeake lawyer who won the only writ of actual innocence ever granted by the court of appeals, said the court held that it was not bound to accept concessions of error made by authorities and that the court would make its own determination whether relief should be granted.