RICHMOND, Va. (WRIC) — The attorney for Terrence Richardson and Ferrone Claiborne, two men serving life in prison despite being acquitted of murdering a Virginia police officer, told an appeals court they were “framed” and that authorities did not share evidence pointing to another suspect when investigating the case more than 20 years ago.
The attorney general’s office disputed those claims Friday, arguing there is no evidence proving misconduct by investigators and that Richardson’s innocence petition should be rejected.
Facing capital murder charges in 1999, Richardson and Claiborne pleaded guilty to lesser charges in the 1998 killing of Waverly police officer Allen W. Gibson. They said fear of facing the death penalty led them to make their guilty pleas then.
Prosecutors brought the case to federal court in 2001, where a judge took their guilty pleas in Sussex County Circuit Court into consideration when sentencing them to life. The jury had found them guilty of drug crimes but acquitted them in the murder of Gibson.
Questions over how the investigation was handled led to a push to clear Richardson and Claiborne from their state convictions.
A plea for innocence and a reversal of Virginia’s support
Jarrett Adams, the attorney for Richardson and Claiborne, filed an innocence request in the Virginia Court of Appeals on behalf of Richardson to throw out his involuntary manslaughter conviction in state court.
Claiborne pleaded guilty to a misdemeanor in state court, so his charges were not eligible for the petition.
The effort was backed by former Virginia Attorney General Mark Herring, but the commonwealth reversed its support for Richardson’s innocence plea after Attorney General Jason Miyares took office.
Adams said Herring’s office reviewed Richardson’s case for nine months and Miyares’ office sent a letter to the court reversing the state’s position on Feb. 4, three weeks after he was sworn into office.
After going back and forth with opposing court filings, Adams and attorneys in Miyares’ office presented their arguments in front of a three-judge panel Friday.
Richardson’s attorney says evidence was withheld
“On Saturday, April 25, 1998, a single shot rang out in a wooded area in the Waverly Village Apartments in Waverly, Virginia. That bullet would go on to tragically take the life of officer Allen Gibson while in the line of duty,” Adams told the court. “But as this record clearly supports, there were two more victims that day.”
Richardson wants the court to vacate his state conviction in the case so he can eventually be released from prison. Adams filed a claim to the appeals court known as a “petition for a writ of actual innocence based on nonbiological evidence,” which requires a petitioner to meet several conditions to have certified by the court.
Adams argued that new evidence was unavailable during the initial investigation and court case and that Richardson and Claiborne’s defense attorney at the time could not have discovered, meeting the standards needed for an innocence petition.
Adams said the suspect descriptions from the only eye witness in the case, a 9-year-old girl, did not match Richardson or Claiborne and that investigators knew about her hours after Gibson was shot.
“She was taken to the home of a Sussex County sheriff where she was, in no other way to explain, interrogated,” he told the panel.
The witness told authorities that she saw a suspect with dreadlocks run from the scene and Gibson had also told a state trooper who arrived at the scene after he was shot that one of the suspects had dreadlocks, Adams said Friday. He told the panel that Richardson and Claiborne did not have dreadlocks at the time.
Judge Junius P. Fulton III asked Adams whether the commonwealth and Richardson and Claiborne’s defense attorney knew about the witness and if a subpoena had been issued for her. He said the child was subpoenaed and they were aware of her by name only, but that only investigators knew what she said she saw.
Adams said the investigator hired by Richardson and Claiborne’s defense attorney could not get in contact with her, but that authorities “deliberately and intentionally gave her little relevance.”
The other piece of evidence that Adams presented was the photo lineup where the witness pointed out another man, adding that it wasn’t just a “random” man but the brother of a woman who lived in the apartments and who gave evidence against Richardson and Claiborne.
Adams said the photo lineup was not provided during the case and added that a person who made a tip call into the Sussex Sheriff’s Office after Gibson’s killing said Claiborne and Richardson were innocent and identified the other suspect pointed out by the witness.
“At what point does the death of an officer not be investigated seriously enough to where everyone mentioned, everyone who can be a viable suspect, is brought in and polled. Where is the record of this man who has been identified throughout from the very beginning,” Adams said. “There is none.”
The AG’s office challenges new evidence argument
States attorneys disputed Adams’ argument, stating that the witness was known to Richardson and Claiborne’s defense attorney and that he told the attorney general’s office that prosecutors informed him of what the child was planning on sharing.
“Mr. Richardson is asking the court today to ignore his presumptively valid guilty plea and instead consider the assumed, historical and factual accuracy of statements made by a 9-year-old child who was a commonwealth’s witness against Mr. Richardson in 1999 and who cannot be located in the present day,” Brandon Wrobleski, special assistant to the attorney general for investigations, told the court.
Wrobleski added that there is no evidence showing that the witness pointed out the potential other suspect named by Adams, and the panel indicated that the photos presented by Adams only showed “the silhouette” of the people in the lineup.
Judge Randolph A. Beales asked Wrobleski about Adams saying that the officer who showed the photo array identified the man named as a potential suspect.
“Your honor, I am drawing a blank into where in the record that specific information is contained,” Wrobleski said. “But what the record does indicate is that multiple officers who were alleged to be present for these photo lineups gave markedly inconsistent statements about whether they were even there for the photo lineup.”
Judge Fulton then asks about Adams’ claims that authorities withheld evidence during the investigation and claims of police misconduct.
“I don’t think there is evidence of withholding of evidence or prosecutorial or police misconduct that’s on this record,” Wrobleski said. “Even if there were, the court cannot consider those legal claims in the actual innocence context.”
Wrobleski said the killing of Gibson sparked a “firestorm” in the town of Waverly and several rumors about the case.
“The commonwealth will certain not contest that there were a lot of irregularities in the investigation, but Terrence Richardson was not forced to plead guilty,” he said. “He was not forced to admit that he was the man with dreads who shot officer Gibson. But he did.”
Questions over Miyares’ decision to reverse course
Judge Beales asked Wrobleski about Miyares’ reversal of the state’s endorsement for Richardson’s petition when the state was wrapping up its argument. Virginia’s legal policy “cannot be set by former elected officials,” Wrobleski responded.
“So, to the extent that the previous brief argued erroneous, factual and legal positions, which is the commonwealth’s position here, the court is not required to adopt those and consider them,” he added.
Adams reiterated his views that the case was being politicized by the attorney general’s office, saying after the hearing that Miyares, a Republican, was a staunch supporter of law enforcement before and after winning office.
In court, Adams said no court has accepted a change in an argument or new evidence in a writ of innocence petition case. But Beales said the panel has “original jurisdiction” in the case and that parties can make changes as a result.
Adams questioned the quick reversal from Miyares’ office, saying his team changed course after reviewing the case for about three weeks and that Herring’s office went over the evidence for nine months before preparing a 78-page brief supporting Richardson’s innocence claim.
“They got it right,” Adams said of Herring’s office.
What comes next?
The court could grant Richardson’s request or deny his petition. The court could also order an evidentiary hearing for more facts to be discovered and presented in the case.
Richardson and Claiborne won’t be released from prison no matter what the ruling is, but Adams is hopeful that a favorable decision would eventually lead to their freedom.
Richardson and Claiborne have exhausted their appeal efforts, including in the Supreme Court, and former President Barack Obama also denied their executive clemency request when he was in office.
“I feel good, I feel real good,” Annie Westbrook, Richardson’s mother, told 8News after Friday’s hearing. “It’s been 25 years. I just want to see him free, see him come home.”
A decision from the court could take up to three months, according to Richardson’s attorneys.
This story is developing. Check back for updates.