RICHMOND, Va. (WRIC) — The Virginia Court of Appeals has denied the innocence petition of Terrence Richardson, one of the two men sentenced to life in prison in connection to the murder of a Virginia police officer in 1998 despite being found not guilty of the crime.
In May, a three-judge panel of the state appeals court heard Richardson’s plea to be exonerated in the case and a challenge from the Virginia Attorney General’s Office.
The court ruled in an opinion Tuesday that Richardson did not satisfy the requirements to be granted a petition for a writ of actual innocence.
Richardson and Ferrone Claiborne faced capital murder charges in 1999 in the shooting death of Waverly police officer Allen W. Gibson, taking plea deals for lesser charges after saying they feared the death penalty.
Prosecutors brought them to federal court in 2001 on charges related to the case, where a jury found them guilty of drug crimes but acquitted them in the murder of Gibson. But the judge took their guilty pleas in Sussex County Circuit Court into consideration when sentencing them to life in prison for the drug charges.
Jarrett Adams, the civil rights attorney representing Richardson and Claiborne, filed the innocence request in the Virginia Court of Appeals on behalf of Richardson, who pleaded guilty to involuntary manslaughter in state court. Adams asked for the petition to be granted or to have the court order an evidentiary hearing.
On Tuesday, the state appeals court wrote in an opinion that “Richardson is simply ineligible for a writ of actual innocence and, therefore, hold that his petition must be dismissed.”
“The ruling lacks any courage,” Adams said Wednesday. “This isn’t about finding justice. It’s about politics, people’s positions and protecting their friends.”
Adams pointed to the attorney general’s office reversing the state’s stance on the petition under Republican Jason Miyares and the court’s decision to allow AG’s office to flip positions. Before he left office, former Attorney General Mark Herring (D) and his office filed a brief supporting Richardson’s exoneration case.
In front of the three-judge panel in May, Adams claimed Richardson and Claiborne were “framed,” arguing that evidence was withheld and ignored in the case.
Evidence presented by Adams included a handwritten eyewitness statement pointing to another suspect who did not match the description of Richardson or Claiborne and the witness, who was nine years old at the time, identifying another man in a photo array lineup and a 911 call also identifying that man as the perpetrator.
The court ruled the assertion that the witness identified the man was not supported because “the individual’s face is simply not visible” in the photo array submitted.
In order to be granted a writ of actual innocence, a petitioner must prove by a preponderance of the evidence, “that the previously unknown or unavailable evidence is such as could not, by the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entry of the final order of conviction.”
The appeals court ruled that Richardson and his trial counsel had ample time to look into records that showed the nine-year-old witness had been subpoenaed to testify and talk with the child or her parents before his involuntary manslaughter conviction was finalized.
The court’s opinion states that Richardson and his trial counsel failed to show an “exercise of diligence” concerning the witness. Adams said that assertion punishes Richardson and Claiborne because the trial attorney “wasn’t Superman” and able to get into contact with the witness or her parents.
“The investigator had to go through the child’s father, who did not make her available,” Adams said Wednesday. “What more diligence can be displayed.”
The opinion adds that Richardson also didn’t provide “a preponderance” of evidence showing the 911 call was “material” to the case “because he has not shown that the content of the message is true.”
Richardson’s petition also argued that the verdict in federal court met the statutory burden to assure “that a rational trier of fact would not convict, State attorneys argued none of the crimes Richardson was acquitted of “were the legal or factual equivalent to involuntary manslaughter under Virginia law.”
But the panel wrote in the opinion that the actual innocence statute requires proof that “no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt,” meaning Richardson would be required to present evidence that every rational factfinder would acquit him.
“The federal jury’s verdict that Richardson was not guilty of an intentional killing or a killing with malice aforethought simply does not prove that Richardson is actually innocent of the accidental killing to which he pled guilty in the Circuit Court of Sussex County,” the opinion reads. “Consequently, Richardson’s federal acquittals fail to establish that ‘no rational trier of fact’ would have found him guilty of involuntary manslaughter as required by Code § 19.2-327.11(A)(vii).”
Adams told 8News he plans on filing a motion to have the case reheard before all 17 judges on the entire state appeals court. He had filed a writ of actual innocence for Claiborne as well, but Claiborne pleaded guilty to a misdemeanor in state court so his charges were not eligible for the petition.
“The Office of the Attorney General stands by its position, guided by the rule of law, and now confirmed by the Appeals Court ruling: the facts of this case do not support the claim for a writ of actual innocence,” Victoria LaCivita, Miyares’ spokesperson, said in a statement.