Weekly Edition

First writ of actual innocence granted by Court of Appeals

(AP) A man convicted of felony firearm possession last week became the first person exonerated under a 2004 Virginia law that allows 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 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. 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.

Copeland was riding in a car that was being chased by police and crashed. Officers took the gun from 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. 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 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 nonbiological 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 Copeland’s petition prompted some legal experts and inmate advocates to question whether the standard was too tough.

Kathleen Ortiz, the Chesapeake public defender who represented 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.’’
Despite the court’s ruling, 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.

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

© Copyright 2008, by Virginia Lawyers Media, all rights reserved