RICHMOND, Va. (WRIC) — Virginia Attorney General Jason Miyares will have a chance to file a brief reversing the state’s support of an innocence claim from one of the men serving life in prison despite being acquitted of killing a Waverly police officer over two decades ago.
Under his predecessor Mark Herring, Virginia filed a brief siding with Terrence Richardson’s effort to prove his innocence in the killing of officer Allen W. Gibson in 1998. On Feb. 7, Miyares’ office sent a letter to the Virginia Court of Appeals sharing the state had changed its position in the case.
The court decided Friday to allow Miyares’ office to submit a new brief, pushing back oral arguments in the case that had been set for Feb. 22. It’s unclear when a new hearing will be scheduled.
“However, given the importance of expediting this matter, the parties are encouraged to file their respective pleadings earlier than the deadlines noted herein and, indeed, as soon as possible, so that the Court may reschedule oral argument forthwith in this case,” the court’s clerk wrote in an order.
Richardson and Ferrone Claiborne pleaded guilty to lesser charges in the fatal shooting of officer Gibson in 1999, saying fear of facing the death penalty prompted them to try to avoid trial in state court. Prosecutors brought the case to federal court, where a judge sentenced them to life after the jury found them guilty of drug crimes but not guilty of murdering Gibson.
Jarrett Adams, the attorney for Richardson and Claiborne, filed a petition for a writ of actual innocence on behalf of Richardson to vacate his involuntary manslaughter conviction in state court. Herring’s office prepared and filed a 78-page brief supporting Richardson’s innocence claim.
On Friday, Adams said the court’s decision does not change the fact that Virginia was backing Richardson’s effort before the administration change.
“I’ve always said this, I would rather have the court have all the information they need in the case. I respect the decision by the court. They understand the situation is unique,” Adams said.
Adams claims the case is being politicized by the attorney general’s office. Miyares, a Republican, defeated Herring, a Democrat who was seeking a third term in office, in the 2021 elections.
The Court of Appeals has given the attorney general’s office until Feb. 28 to file its supplemental response to Richardson’s petition for a write of actual innocence. Adams will then have 30 days to respond to Miyares’ office brief.
After the hearing, the court could grant Richardson’s request or deny his petition. While such a decision won’t release the men immediately, Adams believes the court’s approval would eventually lead to their freedom.
The court could also order an evidentiary hearing, as Herring’s office requested, for more facts to be discovered in the case.
The men contend they did not kill Gibson with his own handgun over two decades ago in a wooded area behind an apartment complex and questions have emerged over their case.
Gibson told a state trooper who arrived at the scene after he was shot that the gun “just went off” during a struggle with two men, one of which had dreadlocks. Richardson and Claiborne did not have dreadlocks at the time of their arrest and the lawyer asserts there are other suspects who could be responsible.
Fearing a potential death sentence after facing capital murder charges in Gibson’s death, Richardson and Claiborne said they pleaded guilty to lesser charges in 1999 to avoid trial in Sussex County Circuit Court.
Richardson received a five-year sentence for involuntary manslaughter and Claiborne pled guilty to being an accessory after the fact.
In 2001, federal prosecutors pursued charges of drug trafficking in connection to Gibson’s death. The jury in federal court found the men guilty of the drug crimes but acquitted them in the murder. The judge in the case, however, decided to use their pleas in state court to sentence them to life.
Claiborne pled guilty to a misdemeanor in state court, so his charges are not eligible for a writ of innocence. Miyares’ office asserts the state no longer adheres to arguments cited by Herring and Adams.
“Even if the federal acquittals were a proper part of an amended petition in this case, Petitioner’s acquittal of murder by the federal jury has no relevance to his state guilty plea to involuntary manslaughter,” Brandon Wrobleski, special assistant to Miyares for investigations, wrote in the Feb. 7 letter.
A spokeswoman for the attorney general’s office did not respond to 8News’ request for an interview or comment regarding the case.