THE VIRGINIA DISGRACE

The author of this article, John Flannery, of Lovettsville, is a former federal prosecutor, former director of the National Association of Criminal Defense Lawyers and former special counsel to the U.S. Senate Judiciary Committee and to the U.S. House Judiciary Committee

There is this wrong-headed notion in Virginia that, if we could just get better-paid criminal defense lawyers with more administrative and investigative resources, we would have criminal justice. That's just not the case. Assuring the accused of a decent defense in Virginia is but a small part of the failure of our so-called criminal justice system.

We are convicting innocent people in Virginia because of false eyewitness testimony, false confessions, over-eager snitches, faulty forensics, bad defense lawyers but also, and this is the worst of all, because of prosecutorial misconduct and police misconduct.

In this last category, what we often mean by misconduct is that the government is concealing or destroying evidence that is exclusively within its possession that demonstrates, or tends to demonstrate, that the accused is innocent or his accusers are not reliable. The commonwealth will fight to hold onto its information, keep it confidential from the accused, even at the risk of convicting the innocent.

When I was a puppy prosecutor and other prosecutors would ask my advice as to whether they should turn over evidence to the defense counsel, I'd ask why they were asking the question. It must have been, so I thought, that the information might tend to help the accused and, consciously or not, that these eager advocates -- my colleagues -- were reluctant to yield that advantage. I always thought the impetus for such questions led to only one obvious answer -- that the information must be handed over. The best defense lawyer in the nation, ignorant of a client's factual innocence because the commonwealth is sitting on the evidence of his innocence, is helpless to save his client from prison or death row.

We know that the innocent have been convicted in Virginia because DNA evidence now allows us to exclude individuals as suspects in crimes -- if the DNA evidence has been preserved.

Arthur Lee Whitfield spent 22 years in prison for the double rape of two women in Norfolk within the same hour. Both women positively identified him. Whitfield pleaded guilty to one of the charges to get a lesser sentence. The commonwealth had destroyed the DNA. But one serologist had violated lab protocol and saved a sample that exonerated Whitfield and implicated another prison inmate for the crime.

Former Independent Counsel Ken Starr is now fighting to save the life of death-row inmate Robin Lovitt, who is charged with killing an Arlington pool hall manager with a pair of scissors. DNA analysis of the scissors failed to link Lovitt to the murder. Starr has raised serious questions about the evidence, relying on an independent audit of the state crime lab that revealed it was wrong in the case of another death-row inmate. But the court clerk has since destroyed the scissors, precluding further DNA examinations. Will the Supreme Court release Lovitt for execution in October when it reconvenes? Or question the destruction of this critical evidence?

We must reform a system that provides less information to a person accused of a crime than a party would get if sued for a $200 bad debt in civil court. And we must reform the notion that a criminal prosecution is some sort of sport that is all about winning a conviction, rather than doing justice.

I was instructed when sworn in as a federal prosecutor of the enormous power that had been delegated, that it could destroy an individual's life with a misspent word, and was further instructed, in the words of former Supreme Court Justice George Sutherland: "The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction, as it is to use every legitimate means to bring about a just one."

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