Bad Analysis, Legislative Gamesmanship, Misplaced Priorities

In 2016, Keith Harward was released from Virginia’s prisons after serving 33 years for a crime he did not commit.

Harward was convicted of a 1982 rape and murder largely on the basis of the testimony of forensic dentists that bite marks on the victim matched his teeth. Many years later, following improvements in DNA testing methods, analysis of evidence left at the crime scene excluded Harward as the perpetrator.

The use of bite marks and other traditional evidence such as hair analysis has been largely discredited as being unreliable and having little scientific basis by both the National Academy of Sciences (here) and by the President’s Council of Advisors on Science and Technology (here).  In addition, the current guidelines of the professional governing body for forensic dentists recommends the use of bite mark evidence only for exculpatory purposes (here).

Virginia rules for the introduction of new evidence after a person has been found guilty of a crime are among the strictest in the nation. Generally, a convicted person has only 21 days following the entry of a final order by the court to bring forward new evidence supporting his or her innocence. There are two exceptions. If there is new evidence that was unknown or unavailable at the trial, the convicted person may petition the Court of Appeals to consider that evidence and set aside the finding of guilty. However, the bar is high for anyone to use this avenue. The other exception relates to previously unknown or untested “human biological evidence”, i.e. DNA testing. Upon learning the results of such testing, the convicted person may petition the Virginia Supreme Court for a writ of actual innocence. Again, the conditions under which such a writ can be granted are strict. Failing to succeed with, or qualify for, these methods, the convicted person may petition the Governor for a pardon.

Because there was evidence containing DNA from the crime scene, and because advances in DNA analysis technology showed that he was not the assailant, Keith Harward was able to obtain a writ of actual innocence and finally walk free. Due to the discrediting of bite mark and hair analysis evidence, it is doubtful  that persons in the future will be convicted primarily on the basis of such evidence. However,  any innocent persons already convicted on the basis of this kind of evidence for whom DNA evidence is not available have little recourse.

Sen. Bill Stanley, R-Franklin County, introduced a bill in the past General Assembly, SB 1066, that would have provided a means for such convicted persons to get a chance to prove their innocence. As amended, if the Court of Appeals found that “discredited forensic scientific evidence” was introduced at a trial in which a person was convicted or there was relevant forensic evidence available now that was not available at the time of trial, it would vacate the conviction, subject to a retrial.

I understand the arguments presented by Commonwealth’s attorneys and others against this bill. Reopening a closed case, especially one involving murder or other violent crime, causes additional mental anguish for the victims and their family members. There would be a danger that offenders would be constantly petitioning for review due to frivolous reasons. It is difficult to retry cases that are more than several years old: witnesses disappear or die, evidence is lost, memories fade, etc.

The proposed legislation attempted to mitigate the argument dealing with frivolous cases: incarcerated persons would be limited to one writ unless subsequent writs for review were “distinguishable from previous petitions.” Although the other arguments are legitimate, they should not take precedence over the basic goal of justice. As Blackstone, the great English jurist, put it, “It is better that ten guilty persons escape than that one innocent suffer.”

The Senate Courts of Justice Committee overwhelmingly agreed, reporting the bill by a vote of 13-2. But, after that, the bill got caught up in poor analysis, questionable priorities, and legislative gamesmanship.

The Department of Planning and Budget issued a fiscal impact of $439,078 for the bill. Accordingly, the bill was referred to the Finance Committee from the Courts of Justice Committee.

That fiscal impact estimate was unsupported, dubious and premature at best. It was based on the Attorney General’s office claiming that it would need a “minimum of two Assistant Attorney General positions to file responses to petitions and attend to court and trial matters.” Also, it would need at least one forensic trained investigator.  No estimate of the number of petitions that might be filed was cited to justify this “need.” That is probably because no one knows how many people there are in Virginia prisons who would be affected by this legislation. There is another reason to doubt the validity of the AG’s estimate. For another bill, SB 1101, the AG’s office claimed it needed three positions and about $439,000 to implement. JLARC showed there was no basis for this claim. It would seem that the AG’s office needs three additional people to implement any new legislation, without regard to any analysis of its actual impact.

The fiscal estimate was premature for several reasons. First of all, one enacting clause delayed the effective date to July 1, 2020, the first date of the next fiscal biennium. Therefore, no appropriation would be needed in the current biennium. Furthermore, another enacting clause directed the Supreme Court to report to the legislature each year the number of petitions that had been filed under the provisions of the legislation. Finally, the bill set an expiration date of July 1, 2024.  Therefore, if the 2024 General Assembly desired to make the provisions permanent law, there would have been data on the number of petitions the courts could expect and any needed appropriation could have been provided then.

Probably relying on the flawed fiscal impact statement, the Senate Finance Committee slapped “the clause” on the bill. This clause, a favorite of the committee, made the provisions of the bill becoming effective contingent on there being an appropriation in the 2019 session “effectuating” its purposes. It did not seem to matter that the provisions of the bill itself would not become effective until 2020 and no appropriation was needed in the 2019 session.

Assuming that the Senate Finance Committee did not, in its haste in a hurried, short session, realize that the bill did not need an appropriation in the 2019 session, it could have provided an appropriation for SB 1066 in its budget amendments. It did not do so. It had other priorities, among them, $2.0 million for nondesignated  “unanticipated operational cost increases” of the General Assembly, that took precedence over giving wrongfully convicted persons a means of regaining their freedom.

The use of “the clause” by the Senate to avoid accountability annoys House members. Frequently, the Senate fails to provide an appropriation in its version of the budget for such bills. The House, in turn, takes the attitude, “If you did not think enough of your bill to provide an appropriation for it, we are not going to consider it.” That is what happened to SB 1066, with its unneeded appropriation contingency clause. The Speaker did not even bother referring it to the House Courts of Justice Committee, where such bills are commonly referred. It went straight to Appropriations, where it died.

In the end, faulty fiscal analysis, misplaced priorities, and political gamesmanship doomed this needed bill. Any wrongfully convicted person in prison will need to wait at least another year.