Technical evidence gets arms conviction annulled

By John Hopkins, The Virginian-Pilot – Aug. 13, 2008

The Virginia Court of Appeals has vacated a firearms conviction against a 20-year-old Norfolk man, making him the first person in Virginia to be exonerated under a 2004 law allowing convicts to present new, non-DNA evidence of their innocence.

The appeals court granted Darrell Andrew Copeland’s “writ of actual innocence,” in a published decision handed down Tuesday. The court’s decision comes after the attorney general’s office conceded that Copeland is in prison for a crime he legally could not commit.

“Despite dozens and dozens of petitions of actual innocence, the court had not granted one until today,” said L. Steven Emmert, an appellate lawyer and author of the Web site Virginia Appellate News & Analysis. “This is big news from a legal standpoint.”

Copeland was convicted in Chesapeake Circuit Court in July 2007 for possession of a firearm by a felon after state police testified that his weapon was a black semiautomatic pistol. He was sentenced to five years in prison.

The appeals court’s ruling Tuesday was based on the definition of a firearm. State law defines a firearm as an instrument intended to expel a projectile by means of an “explosion.”

Chesapeake Public Defender Kathleen Ortiz, Copeland’s attorney, filed the petition after learning of a lab test of the gun in question. Ortiz said she learned in December 2007 that Copeland’s weapon was actually a “gas gun,” which uses compressed gas to expel a projectile.

The attorney general’s office, in a rare move, supported Copeland’s claim of innocence.

“They took a very responsible stand,” Emmert said. “The attorney general’s office deserves praise for this.”

Appeals Judges D. Arthur Kelsey and William G. Petty and Senior Judge Rudolph Bumgardner heard the case.

“Having independently examined the record presented to us, we conclude the unique circumstances of this case make it prudent to accept the Attorney General’s concession without further development of the facts,” the court ruled. The case was remanded to the Circuit Court and is expected to be expunged from the record, Ortiz said.

“I’m pleased with the outcome and I encourage other people to try this,” Ortiz said. “We have to test the limits and see where it goes.”

Under the 21-day rule, Virginia law once required inmates to present newly discovered evidence of innocence within three weeks after sentencing. In 2002, the General Assembly made an exception to the rule for DNA evidence. In 2004, lawmakers did the same for nonbiological evidence.

Before the writ of actual innocence, the only avenue available to an inmate was to seek executive clemency from the governor, Emmert said.

“Now you have a mechanism you can go to with no political involvement,” Emmert said. “It’s a judicial function, and that’s very important.”

Despite the Virginia Court of Appeals’ ruling, Copeland will remain behind bars for other crimes. He pleaded guilty in federal court to carjacking and conspiracy to commit robbery and was sentenced in April to 10 years in prison.

Arraignments are now being made to transfer Copeland from the Virginia Department of Corrections to a federal prison, Ortiz said.