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While testifying in the murder case of Brandon D. Cooper, state witness Nicole Byrd said that she saw Cooper running down the street after fatal shots were fired at Antwon D. Freeman. The state did not disclose to Cooper that they had a tape recording of Byrd telling a 911 operator that she “had not seen the shooter and had no information that would be helpful to police.” In fact, prosecutors told defense counsel that the 911 call “offered nothing that would help their case.”

On top of that, prosecutor Christopher Jones admitted before Judge Bradley B. Cavedo of Richmond Circuit Court that information showing one of their witnesses was a police informant was also withheld from the defense. Jones joined defense counsel to ask for a new trial. Judge Cavedo granted the motion yesterday, but did not prohibit the state from trying Cooper a second time. David P. Baugh, an attorney for Cooper, said that Jones committed a “classic ethics violation” and that he would file a bar complaint against Jones if the Court does not.

Just days earlier, another conviction was thrown out on account of prosecutorial misconduct by the Newport News’ Commonwealth Attorney’s office. David Boyce was convicted of the murder of Timothy Askew in 1990, when he was just 19 years old. No evidence (including blood, hair and semen found at the scene) linked Boyce to the crime. On the day Boyce was arrested at a restaurant by police, a polaroid photograph was taken of him that memorialized his short hair. However, at trial the state relied on the testimony of a crime scene technician who fingerprinted Boyce after his arrest who stated that Boyce had long hair at the time – matching the description of a suspicious person seen near the crime scene at the time of the murder.

The Newport News CA’s office didn’t turn the polaroid over to defense counsel until 2008.

These reversals follow hot on the heels of two other high-profile Virginia vacated murder convictions involving prosecutorial misconduct. The first was Justin Wolfe’s, which we wrote about late last year:

Wolfe was convicted almost solely on the basis of the testimony of another man, Owen Barber, who has since confessed to being the real shooter in the crime. However, Mr. Ebert allegedly paid Mr. Barber a visit and threatened him with the death penalty if he recanted his 2002 testimony, which he first did in the form of an affidavit in 2005.

Despite Wolfe’s overturned conviction and the recantations of the state’s only eyewitness-turned-shooter, a federal appeals court has not yet ruled on whether Mr. Wolfe will be retried.

The other was the case of Michael Hash, who filed a lawsuit against the Culpeper County Commonwealth’s Attorney Gary Close (among other law enforcement officials) for his wrongful conviction following a judicial finding of misconduct. The Washington Post summarized:

[The U.S. District Court judge] cited problems with the investigation, the prosecution and Hash’s trial counsel, including the acknowledgment late last year by former Culpeper County sheriff Lee Hart and then-Commonwealth’s Attorney Gary Close that Hash had been moved to another jail in order to expose him to a known informant; that investigators had provided crime-scene information to at least one witness and guided answers to their questions; that two witnesses had failed polygraph tests and one had since recanted his testimony; and that there is significant evidence that another suspect may have committed the crime.

Commonwealth’s Attorney Gary Close resigned soon after the judge’s opinion was delivered.

The harm done by the Richmond, Newport News, Prince William and Culpeper counties’ district attorneys’ offices to these wrongfully convicted men can only begin to be calculated by taking stock of their sentences:

  • Cooper faced 55 years in prison;
  • Wolfe was sentenced to death;
  • Boyce was sentenced to two life terms;
  • Hash was sentenced to life-without-parole.

By contrast, the prosecutors involved in these cases have yet to be held accountable at all – either by the Virginia State Bar or through court proceedings:

  • Bar complaints filed a year and a half ago against Commonwealth’s Attorney Paul Ebert for his conduct in the Wolfe case are yet to be acted upon by the Virginia State Bar.
  • Hash has filed a lawsuit against the District Attorney, three Sherriff’s investigators, a jailer and an informant who he alleges engaged in misconduct to help secure his conviction. The lawsuit was only filed recently, the outcome of which remains to be seen.
  • Cooper’s attorney, David Baugh, intends to file a bar complaint against prosecutor Christopher Jones if the judge in the case doesn’t do it himself.
  • There is no mention of repercussions for the prosecutors involved in the Boyce case in news reports to date.

We expect there will be a lot more news about these four cases out of Virginia in the coming months. The Open File will keep you posted.

*Correction: When originally published, this post incorrectly said Boyce was sentenced to death. Though he was convicted of capital murder, he was sentenced to two life terms in prison.


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