- The Washington Times - Saturday, July 19, 2008

RICHMOND | The attorney general’s office is supporting an inmate’s bid to become the first person exonerated under a 2004 state law allowing prisoners to present new, non-DNA evidence of their innocence.

Darrell Andrew Copeland was convicted last year of felony firearm possession. Copeland, who previously had been convicted of robbery, was sentenced to five years in prison.

However, tests conducted by the Virginia Department of Forensic Science later determined the weapon he had was a “gas gun” that does not fit the definition of a firearm under state law. A gas gun uses compressed gas to fire a round, whereas state law defines a firearm as an instrument “intended to expel a projectile by means of an explosion.”

State police seized the gun after a car Copeland was riding in crashed during a chase in Chesapeake. A trooper testified at Copeland’s trial that the weapon was a black semiautomatic pistol, but the state did not introduce the gun as evidence.

Copeland’s attorney said the evidence was insufficient because the state failed to exhibit the gun. But the judge agreed with prosecutors, who claimed the trooper’s expertise in identifying firearms was sufficient. The Virginia Court of Appeals agreed and affirmed Copeland’s conviction in March.

Two months later, the state lab issued its analysis of the weapon.

“The commonwealth admits that petitioner is incarcerated on an offense he legally could not commit,” Senior Assistant Attorney General Leah A. Darron wrote in the state’s response to Copeland’s petition in the Virginia Court of Appeals.

This marks the first time the state has backed an inmate’s petition for a “writ of actual innocence” since the law took effect four years ago. According to the appeals court, 126 petitions have been rejected and none granted. Copeland’s is one of three pending.

The law applies to anyone who is convicted in circuit court after pleading not guilty.

Virginia law once required inmates to present any newly discovered evidence of innocence within three weeks after sentencing. The “21-day rule” was widely regarded as the strictest in the nation.

The General Assembly carved out an exception for DNA evidence in 2002. Two years later, legislators also eliminated the deadline for newly discovered nonbiological evidence but established a tough standard: Petitioners must demonstrate that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

The lab report in Copeland’s case meets that standard, Ms. Darron wrote, adding that the inmate’s petition should be “expeditiously granted.” The appeals court may need another hearing, or it may simply issue the writ, lawyers in the case said.

“We’re hoping it’s going to be very quick,” said Kathleen Ortiz, the public defender in Chesapeake. “My hope is they will grant it without requiring any more hearings.”

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