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Virginia Sheriffs’ Association
The Voice of Virginia’s Sheriffs & Deputies

Sheriff gauges support for innocence panel

By Frank Green
Richmond Times-Dispatch
Posted: Saturday, March 29, 2014 12:00 am

Albemarle County Sheriff J.E. “Chip” Harding is canvassing law enforcement leaders across the state to gauge support for a government-backed commission to help prevent wrongful convictions.

Improving the quality and accuracy of investigations would not only decrease the possibility of convicting the innocent, but also strengthen cases against the guilty and improve public safety, he said.

Harding, who helped clear Michael Hash, wrongfully convicted of a 1996 capital murder in Culpeper, has written to 123 sheriffs and 247 police chiefs about creating a justice commission to review research and recommend changes.

“I have spent most of my 40-year criminal justice career investigating serious crime,” Harding wrote. “I took hundreds of felony cases to state and federal courts. I never lost a single one. I thought I was a ‘cutting-edge’ investigator, always doing it the right way.”

“I now know I was wrong.”

Harding said that in recent years he has been enlightened by research into the causes of wrongful convictions, sometimes the result of easily corrected errors such as focusing on one suspect to the exclusion of others or error-prone lineup procedures.

Harding said he has followed up many of the letters with telephone calls.

“Almost across the board they are saying we hope we can find a process to improve our procedures and policies and get them implemented without having it legislated,” he said.

Chris Perkins, the chief of police in Roanoke, said, “I’m pleased that Sheriff Harding has brought forth this idea. If you’re going to have a profession like law enforcement, you’ve got to consistently look at the things we do and how we do them.”

“Doctors — they call it practicing medicine for a reason, and they are constantly striving to improve,” Perkins said. “It’s the same thing in law enforcement. … We’ve got to constantly look at how we do things.”

Like others contacted Friday, Richmond Chief of Police Ray Tarasovic favors the aims of such a commission but wants to hear more.

“Our overriding focus is that justice is served in every case, and that those we charge with crimes are, in fact, responsible,” Tarasovic said. With advances in technology and procedures, it is important to have the most up-to-date policies, he added.

He said he did not have enough information to comment further. He said he looked forward to learning more about the goals, purpose and selection of members of the proposed commission.

Brian Roberts, the Brunswick County sheriff, said he has read the material and spoken with Harding at length.

“I told Chip I would be 100 percent more than happy to sit on the commission and help study the process to come up with ways to improve it,” Roberts said.

“But what I don’t want to see is an overreaction.” He said he is concerned about the possibility of state mandates, especially unfunded ones that might be impossible for some agencies to meet.

Tim Longo, the chief of police in Charlottesville and current president of the Virginia Association of Chiefs of Police, agreed that such a commission could help develop best practices.

“My concern, and perhaps that of others, is what a Virginia model would look like in relation to others that exist nationally,” he said.

*** A spokesman said Virginia Attorney General Mark R. Herring wants to ensure correct outcomes in the legal system and that Herring and Harding had a private conversation about the proposed commission during Herring’s public safety tour last week.

“He told the sheriff he would give due consideration to the issues he raised and proposed solutions,” Herring spokesman Michael Kelly said.

Harding envisions the justice commission studying potential improvements in practices and procedures, and providing a forum for consideration of best practices by prosecutors, investigators, defense lawyers, scientists and academics.

He said procedures and policies that might be studied could include the way suspect photo and in-person lineups are presented to victims and witnesses.

Of the 314 convictions in the U.S. proved wrongful by DNA — 16 of them in Virginia — the Innocence Project found a frequent cause was the misidentification of suspects by victims and witnesses in poorly conducted photo and in-person lineups.

Studies have shown that witnesses should be shown mug shots one at a time, instead of in a photo spread, and the photos should be shown by officers who do not know the suspect so no inadvertent signals can be transmitted to witnesses.

“There are agencies in Virginia not using best practices, and this has proven to contribute to wrongful convictions while allowing the predators to continue victimizing,” Harding wrote in his letter.

“I think the sheriff’s proposal is a very important one,” said Brandon Garrett, a professor at the University of Virginia School of Law and author of “Convicting the Innocent: Where Criminal Prosecutions Go Wrong.”

Garrett said the commission could be convened as a working group by participating organizations, or by Herring or the Virginia Supreme Court, or by legislation, as in a number of other states.

Similar entities, sometimes called innocence commissions, have been created in California, Connecticut, Florida, Illinois, Louisiana, Oklahoma, New York, North Carolina, Pennsylvania, Texas and Wisconsin.

“More important than the mechanism (creating it) is the substance — making sure that dedicated, experienced, respected stakeholders from law enforcement, commonwealth’s attorney’s offices, the judiciary, researchers and the bar participate,” Garrett said.

Virginia has lacked a way to communicate ideas, which has impeded the implementation of existing best practices, he said. “A justice commission like this could really make a difference.”

*** In August, a survey by the U.Va. School of Law found that only a handful of police departments statewide had adopted a then 2-year-old Virginia Department of Criminal Justice Services model policy for photo and in-person lineups.

Identification errors helped put all but three of the 16 wrongly convicted men — all for rapes, murders or both — behind bars in Virginia.

Virginia lawmakers have been reluctant to order police departments to make changes, and it was hoped that agencies would voluntarily adopt the Department of Criminal Justice Services model, which calls for simple, low-cost procedures.

“The most knowledgeable people should think about the best and most cost-effective solutions — and if the experience in other states is any lesson, those recommendations may very well take flight,” Garrett said.

“They certainly have in states like North Carolina,” he said. The North Carolina commission was government-sponsored, and key law enforcement officials participated from the beginning and backed changes such as lineup improvements.

Garrett said that by the time legislation was passed in North Carolina to mandate changes, most law enforcement agencies in the state were already using the policies because they were involved in their development.

Harding, meanwhile, has offered to send a copy of Garrett’s book at no charge to any police chief or sheriff who wants one.