by Jon Baliles

A strange story appeared this week almost out of nowhere and seems to have caught everyone by surprise, including the Mayor, who has spent the last few days fumbling the situation like a rookie running back. Graham Moomaw at The Richmonder broke the news Monday that Governor Youngkin sent the city a letter scolding the government for dragging their feet in adhering to a new state law that requires localities to match state compensation to pay those wrongfully convicted of a crime for time served in prison.

The city owes $5.8 million to Marvin Grimm, who was wrongly convicted at age 20 and sentenced to life in prison for the death of a three-year old boy in 1976 but was exonerated last year. The state approved a $5.8 million allocation to Grimm during the General Assembly earlier this year. The city owes the same amount because the General Assembly passed a new law that took effect July 1 which requires localities where the wrongful conviction took place match the state compensation. It was bipartisan legislation approved 99-0 in the House of Delegates and 40-0 in the Senate.

The Governor’s letter warned the city that the state could withhold state funding if the money is not paid to Grimm by August 15th. Del. Rip Sullivan, D-Fairfax, wrote the law and told Moomaw, “Richmond is obligated to pay it. That is the statute that we passed. The governor is doing what we directed him to do in that statute.”

The Governor is also doing something the city so far has chosen not to do — answer Mr. Grimm’s attempts to receive his due compensation.

“To date, the city has ignored its responsibility and has not responded to Mr. Grimm’s counsel,” Youngkin wrote. “Mr. Grimm deserves better treatment from the City of Richmond, and I trust you will promptly rectify this situation.”

“The background that led to Mr. Grimm’s wrongful imprisonment is horrific,” Youngkin wrote to Avula. “In order to secure a conviction, employees of the city did illegal and despicable things to a human being and a fellow citizen of Richmond.”

Grimm was arrested and, according to Dave Ress at the Times-Dispatch, subjected to a 10-hour interrogation and 24 hours without sleep, responding to prompts from police, Grimm gave a statement that matched police theories about the crime but that included none of the critical, never-publicized information investigators usually rely on to make sure individuals aren’t admitting to crimes they did not commit.

Prosecutors told Grimm to plead guilty to avoid the death penalty but had withheld blood evidence that would have proved he could not have committed the crime. Grimm’s attorneys and the Innocence Project presented new evidence showing the court the discrepancies, and Attorney General Jason Miyares supported Grimm’s innocence, hailing the case as “a textbook example of why Virginia provides actual innocence relief.” The Virginia Court of Appeals completely exonerated Grimm last year. The state money was paid to Grimm on July 1 after the law went into effect and the Governor made clear the city’s dragging of their feet was inexcusable.

On Monday, a city spokesperson said the city was reviewing the Governor’s letter but “does not have comment at this time.”

On Tuesday, Mayor Avula sent a letter to Youngkin that said: “The legislation referenced in your letter is new as of July 1, and as you are aware, imposes a significant financial obligation on the city of Richmond,” Avula wrote. “We are currently reviewing the unfortunate circumstances of Mr. Grimm’s incarceration and the city is fully reviewing the matter and subsequent legislation.”

There really is only one answer that should be coming from City Hall: “We will make the payment.” The city might still have to figure out how and when to make it, but a “we’ll get back to you” is simply not acceptable (and borderline nauseous). The city seems to be trying to figure out what their options might be when the state law makes it clear: Pay the amount or lose state funding until it is paid.

You can argue that the state law should be amended and allow localities (especially smaller ones) a time window to make the payment since it is highly unlikely a risk management policy would cover such a payment for something that took place 50 years earlier. But any changes to the law are an issue for the next General Assembly session, not this instance. Otherwise, the Mayor will likely have to submit a budget amendment to Council and approve it in a series of special meetings because there are no meetings scheduled in August and they would miss the August 15th deadline. It also might be possible to get the money from the city’s Rainy Day Fund, but that would come with implications for borrowing and bond ratings. Not paying is not an option. It’s the only legal option, not to mention the only moral option.

There might be a forthcoming excuse that the city was caught off guard by this payment obligation, but that dog won’t hunt. City Hall cannot claim they did not know about the possibility of the payment before the city’s budget was finalized in May; they were just unprepared for it (or worse, chose to ignore it). After the new state law passed the Assembly, Luca Powell wrote about the impending payment in the Times-Dispatch on March 31, but the city did not have a response.

Ross Catrow, a spokesperson for the city, did not immediately return a request for comment on Friday on whether the city intends to make the payment. The city’s $3 billion budget announced Thursday makes no mention of a payment to Grimm. On Thursday, the city announced “strategic budget reductions” of around $11 million, with Mayor Avula saying the city had to focus “limited resources on the city’s highest priorities.”

And the city is supposed to have plenty of eyes on issues at the General Assembly. Mayor Stoney’s former Chief of Staff was employed earlier this year as Director of Intra-Governmental Affairs ostensibly charged with advocating “for the City of Richmond’s interests before the Virginia General Assembly, state officials, federal agencies, and other decision-making bodies.” The mayor and Council approved in the new budget for that position’s salary to jump from $170,000 to $260,000, but the job apparently has been vacant since May when a job posting was put on the city website. Regardless or not the post was vacant, someone in City Hall should still have been tracking this issue in particular.

The city also employs seven lobbyists ostensibly charged with keeping the city informed on legislation that can affect the city positively or negatively. Certainly, in a case like this that directly involved and affected Richmond with the possibility of a sizable budget allocation, alerts and updates should have been going off with every committee meeting across the street in Capitol Square. Delegate Ray Cousins, who represents a large portion of North Richmond was a co-sponsor of Sullivan’s bill and sits on the Courts of Justice Committee where the bill was first assigned and sailed on to unanimous approval by the entire House of Delegates.

Nevertheless, even after the Assembly session, repeated attempts to get someone to acknowledge the issue still went ignored by City Hall. After the city’s non-response to Powell’s March article, Grimm’s attorney, Jeffrey Horowitz, tried beginning in April to find out when/if the city’s payment would occur and get a meeting with the Mayor to discuss the matter, to no avail. A letter sent on June 17th addressed to Avula and City Attorney Laura Drewry did not receive a response. So Horowitz wrote the Governor on July 21 requesting help to get a response from the city and he included a copy of the June 17 letter.

“Having suffered through 45 years of wrongful incarceration followed by an additional 5 years of suffering with the restrictions related to being included on the Sex Offender Registry — all the result of the wrongful misconduct of Richmond and Commonwealth Officials — justice demands that Mr. Grimm be promptly paid the compensation to which he is entitled,” Horowitz wrote to Youngkin.

“The Commonwealth has promptly met its statutory obligation, but Richmond has not. After patiently waiting for the legislative process to conclude following his exoneration more than a year ago, this 70-year-old man should not be subjected to further delay due to Richmond’s failure to meet — or even to acknowledge — its obligations.”

Youngkin sent his letter to Avula on July 25th and Avula replied on July 29th (after ignoring Horowitz’s requests for a meeting for months). As Moomaw pointed out in his reporting [emphasis added], The new law says that if a locality fails to pay, the governor can order state officials to “withhold all further payment” to the locality “for any and all purposes, until such compensation is paid to the person.”

So, the law allows for discretion, but the Governor in his letter is clearly telling the city to pay what is owed or there will be consequences. If the city is insane enough to choose to defy the General Assembly and the Governor who are solidly aligned on this issue (but not many others), they don’t have to look further than the June 17th letter they ignored for the possibility of an outcome that would be even more severe. In the letter, Horowitz notified the city that Grimm would not waive his rights to sue the city for compensatory damages until his legal team received confirmation the city would make its matching payment.

Del. Sullivan, who introduced the new law, told Moomaw that the previous system could have put people like Grimm in the position of getting paid by the state, but still having to sue local officials to receive compensation for local misconduct.

The revised law the General Assembly approved effectively removed the local veto power. It declares that if the state deems additional compensation is warranted for intentional wrongdoing, the locality has to match the amount agreed to by the state.

“My guess is… if we force someone to file a lawsuit who’s been deprived of 45 years of his or her life, that’s going to be a big number,” Sullivan said. “Any jury is going to give that person a big number.”

Which means that the city, should it choose to ignore the new state law, could soon face a loss of state funding and a $100 million (or more) lawsuit from a man who was railroaded into spending 45 years in prison and lost his friends and family for a crime he did not commit. That’s an open and shut case, and so should be the city’s position to pay the $5.8 million.

Jon Baliles is a former Richmond City Councilman. This article is republished with permission from his blog RVA 5X5.