KEENE: Justice delayed shouldn’t be justice denied

Exoneration of the innocent is a paramount act of conscience

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Last week, the mid-Atlantic Innocence Project (exonerate.org) hosted a lunch to honor two very different men. One is black. The other is white. One has served 27 years in Virginia prisons for crimes he didn’t commit. The other is Virginia’s chief law enforcement official.

Their story began one evening in 1984, when 18-year-old Thomas Haynesworth went to a Richmond store to buy sweet potatoes for his mother. He’d never been in trouble, but as he left the store, a rape victim spotted him, called the police and mistakenly identified him as her attacker. Mr. Haynesworth was quickly arrested, jailed, tried, convicted of raping three women, sentenced to 84 years, hustled off to a state penitentiary and promptly forgotten.

Cops and prosecutors alike rolled their eyes at his protestations of innocence. Mr. Haynesworth said that although few people can imagine what it’s like to serve time in prison, it is impossible to imagine what it’s like for someone like him who finds himself facing life behind bars for a crime he didn’t commit.

Years later, the staff of the Mid-Atlantic Innocence Project took a fresh look at his case and became convinced that he might be innocent. They sought DNA tests of evidence still in police files, and the tests proved another man already serving time for serial rape was the perpetrator in one of the cases in which Mr. Haynesworth had been convicted.

This led to the likelihood that his other two convictions resulted from mistaken identity as well. There was, however, no DNA evidence to test in the other two cases. Still, under 2004 Virginia law, Mr. Haynesworth had a chance to be cleared and win his freedom by seeking a “writ of actual innocence for non-biological evidence” and convincing a state appeals court that newly discovered non-DNA evidence would have made it impossible for a “rational trier” to have found him guilty beyond a reasonable doubt had it been available at his original trial.

Until last March, it seemed Mr. Haynesworth would remain in prison unless his lawyers could persuade an appeals court to grant such a writ, even though law enforcement officials and prosecutors familiar with his case already were persuaded that he was a victim rather than a criminal.

At that point, Virginia’s attorney general, a fire-breathing conservative best known for filing the first constitutional challenge to the individual mandate in President Obama’s health care law, got involved. As a state senator, Kenneth T. Cuccinelli had been a key supporter of the 2004 legislation that would give Mr. Haynesworth a chance at exoneration. After reviewing the evidence, he signed on as Mr. Haynesworth’s most important supporter.

When he discovered in March that in spite of all that had happened, Mr. Haynesworth had been denied parole, Mr. Cuccinelli persuaded Virginia Gov. Robert McDonnell to revisit an earlier parole denial so that on his 46th birthday, Thomas Haynesworth walked out of prison. He’s still a convicted felon and has to register as a sex offender, but he’s free, and Mr. Cuccinelli swears he will do everything in his power to clear Mr. Haynesworth’s name.

Some years ago, I testified before Congress on the need to allow post-conviction DNA testing in death-penalty cases when there was any possibility that such tests might prove that a prisoner facing execution might, in fact, be innocent. I just couldn’t understand how a prosecutor or anyone involved in such a case wouldn’t want to be sure before taking a human life, but members of the prosecutorial community almost unanimously opposed such tests.

They said they did so in the name of certainty, finality and respect for the juries that decide questions of guilt or innocence, but I couldn’t help thinking it had as much to do with ambition, ego and the prosecutorial batting average, combined with government’s knee-jerk unwillingness under virtually any circumstances to acknowledge a mistake.

Mr. Cuccinelli agrees. He told those gathered to recognize him for his efforts on Mr. Haynesworth’s behalf that his “somewhat idealistic view is that ‘justice’ is still a part of our criminal justice system.”

Fortunately for Mr. Haynesworth, Mr. Cuccinelli is one attorney general who believes that while our criminal justice system works pretty well most of the time, it isn’t perfect. “We have to remember” he told his audience last week, “it was designed by human beings and is staffed by human beings, who sometimes make mistakes.” This simple and obvious fact, he argues, means those working within the system have an obligation to keep in mind the possibility that mistakes might be made and do all they can to rectify them when they occur.

Mr. Cuccinelli was on that stage last week with the man he helped free because those interested in such issues know that too many in his position would, like those who put Mr. Haynesworth away almost three decades ago, simply have rolled their eyes, rejected the accused’s protestations of innocence and gone on to other things.

Because Mr. Cuccinelli didn’t look the other way, Thomas Haynesworth is free after 27 years in prison, looking forward to complete exoneration and reporting to work five days a week - in the office of Virginia’s attorney general.

It seems that idealism and justice are still compatible.

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