Convict cleared under 2004 law

By Larry O’Dell, AP, Washington Times – Aug. 13, 2008

RICHMOND | A man convicted of felony firearm possession on Tuesday became the first person exonerated under a 2004 Virginia law allowing prisoners to present new, non-DNA evidence of their innocence.
 
More than 120 other inmates’ petitions had been rejected before the Virginia Court of Appeals granted Darrell Andrew Copeland’s writ of actual innocence.

The attorney general’s office supported Mr. Copeland’s petition after laboratory tests showed that the weapon he had was a “gas gun” that does not fit the state’s legal definition of a firearm. Mr. Copeland, 20, is the only inmate whose petition has been backed by the state’s top prosecutor.

The appeals court made it clear that the attorney general’s support was not the determining factor.

“We have no obligation to accept concessions of error,” the court said, adding that its independent examination of “the unique circumstances of this case” led to the decision.

Mr. Copeland was riding in a car that was being chased by police and crashed. Officers took the gun from Mr. Copeland, who was not allowed to carry a firearm because of a robbery conviction.

A trooper testified at trial that the gun was a semiautomatic pistol. Mr. Copeland was convicted and sentenced to five years in prison.

However, tests conducted by the Virginia Department of Forensic Science later determined the weapon was a gas gun, which uses compressed gas to fire a round. State law defines a firearm as an instrument “intended to expel a projectile by means of an explosion.”

In a letter supporting Mr. Copeland’s petition for an innocence writ, Senior Assistant Attorney General Leah A. Darron conceded that “petitioner is incarcerated on an offense he legally could not commit.”

Before 2004, Virginia law required inmates to present any newly discovered evidence of innocence within three weeks after sentencing. The “21-day rule” was widely regarded as the strictest in the nation.

The General Assembly carved out an exception for DNA evidence in 2002. Two years later, legislators eliminated the deadline for newly discovered non-biological evidence. But they required petitioners to demonstrate that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

The steady stream of rejections that preceded Mr. Copeland’s petition prompted some legal experts and inmate advocates to question whether the standard was too tough. A spokesman for Attorney General Robert F. McDonnell said the Copeland case should put those concerns to rest.

“The court’s decision today demonstrates that the criminal justice system works,” said the spokesman, J. Tucker Martin. “This law has made the system even stronger.”

Kathleen Ortiz, the Chesapeake public defender who represented Mr. Copeland, said it will take more cases to establish the law’s parameters.

“I hope the ruling encourages more people to try this,” she said. “There has to be a more concerted effort to test the limits.”

L. Steven Emmert, chairman of the Virginia State Bar’s Appellate Practice Subcommittee, said legislators deliberately set a tough standard to discourage clogging the court docket with frivolous petitions.

Despite the court’s ruling, Mr. Copeland will not be set free right away. He pleaded guilty to federal charges of carjacking and conspiracy to commit robbery and was sentenced on April 1 to 10 years in federal prison. He was returned to state custody to serve his five-year sentence on the firearms conviction before serving his federal sentence.

Ms. Ortiz said she will try to get the time Mr. Copeland served on his state conviction taken off of his federal prison term.