[Posted December 6, 2011] With little fanfare, but not without protest, the en banc Court of Appeals of Virginia today issues writs of actual innocence to Thomas E. Haynesworth, who served 27 years in prison after being convicted of violent sexual assaults. The Attorney General conceded at oral argument that the writs should issue, reflecting the Commonwealth’s conclusion that another man committed the crimes. A six-judge majority of the en banc court (with Judge McCullough not participating) issues a two-sentence order granting the writ in Haynesworth v. Commonwealth.

At that point, the floor belongs to the dissenters, who fill 25 pages with reasons why the writs should not issue. Judge Elder, writing for Judge Petty, notes that the new evidence in the case shows merely that “two similar crimes which occurred within a month of these offenses were proved to have been committed by another individual who resembled Haynesworth.” Judge Elder points out that the eyewitnesses who testified against Haynesworth have never recanted; he urges that a jury could well have accepted their unambiguous testimony as a foundation for a guilty verdict. At most, he concludes, this new evidence would assist the defense, but it does not clear the defendant.

Judge Beales writes separately, but comes to the same conclusion. He argues that the statute only allows the issuance of a writ where “no rational factfinder in the Commonwealth of Virginia could decide that Mr. Haynesworth was guilty beyond a reasonable doubt . . .” Equipped with the eyewitness identifications, it’s easy to conclude that a rational factfinder could have believed those victims and convicted Haynesworth. Judge Beales concludes that the issuance of a writ in this case, merely because the Attorney General has become convinced of the defendant’s innocence, is tantamount to granting the power of pardon to the courts, instead of to the Governor.

We’re not done; Judge Humphreys adds a dissent of his own, contending that in this instance, Haynesworth failed to establish that the CAV had jurisdiction over the case. He bases that on the limited nature of CAV authority in these cases (only where non-biological evidence is the basis of the petition) and concludes that the proffered evidence would not have been admissible at trial. In addition, he observes that the burden of a petitioner is not merely to cast doubt upon his conviction, but to show that he is innocent. (Innocent, as lawyers know well, is quite different from “not guilty.”) Merely bolstering the defense isn’t enough to warrant a writ like this.

Judge Humphreys concludes that the evidence of crimes by another person isn’t sufficiently similar to the crimes at issue here to warrant presentation to a jury. He warns that the precedent set in this case will effectively mandate a grant whenever the Attorney General concedes that it should issue – contrary to what the statute plainly provides; Judge Humphreys thinks that the effect of this is to grant the Attorney General the power of pardon.

All three dissents suggest that a petition to the Governor would be the appropriate avenue for Haynesworth to pursue.