Albemarle County Sheriff Chip Harding has always approached his work as a cop through his background as a social worker and through his Baptist faith. But after a four-decade law enforcement career that includes nearly 30 years putting criminals behind bars as a Charlottesville Police Department investigator, he had a come-to-Jesus moment reading John Grisham’s The Innocent Man. The true story of a once major-league baseball player named Ron Williamson who spent 11 years on death row for a brutal Oklahoma rape and murder before being cleared by DNA evidence hit Harding like a punch to the stomach.
“It embarrassed me, that I’m part of law enforcement that did that,” he said.
Last month, Harding sent a rallying letter to the 123 sheriffs and 247 police chiefs in Virginia asking for their support in forming a justice commission to help prevent wrongful convictions like Williamson’s in the Commonwealth.
“I think we can change practices to lessen the likelihood of convicting the innocent while strengthening our chances of convicting the actual offender,” Harding wrote. “If police chiefs and sheriffs were to propose and or support reform—we would be taken seriously.”
That Harding would be the one leading the charge to overhaul the criminal justice system, one known for its resistance to change, shouldn’t come as a surprise. He’s long been on the cutting edge of investigative work as the guy who pushed for the General Assembly to fund Virginia’s DNA databank in the 1990s. And while he aggressively—and successfully—pursued hundreds of felony cases during his years as a detective, he also serves as the vice chair of the Good News Jail and Prison Ministry, which provides Bible classes and counseling services to inmates at the Albemarle Charlottesville Regional Jail.
Realizing he was part of a system that put innocent people behind bars—or worse, to death—was “humbling and shameful,” Harding said. “And it induced a rage. From there I started wondering how often that was going on.”
Here’s a hint at how often: Nationwide, 1,342 people have been exonerated, often after spending decades in jail, according to the National Registry of Exonerations, a joint effort of the University of Michigan and Northwestern University law schools. In Virginia, 36 people have been cleared of committing heinous crimes, 17 of those thanks to DNA evidence.
“That’s not even the tip of the iceberg,” said Harding, who went on to read UVA law professor Brandon Garrett’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong, an examination of the first 250 people exonerated by DNA.
“That really rocked me,” said Harding. In 70 percent of the cases Garrett examined, DNA not only exonerated an innocent person, but it pointed to the person who committed the crime.
“Serial offenders kept raping and murdering while an innocent person was in prison,” Harding said.
And then Harding got involved in the Michael Hash case, one of three wrongful convictions that Culpeper has the dubious distinction of claiming, according to the National Registry. In 2001, Hash, then 19 years old, was convicted for the 1996 murder of 74-year-old Thelma Scoggins. He spent nearly 12 years in prison before a federal judge vacated his capital conviction in 2012, citing “outrageous misconduct” by the prosecution and investigators that included sending Hash to spend two nights with a serial snitch, according to Judge James Turk’s 64-page decision, which called it a conviction “brought about by methods that offend a sense of justice.”
The snitch, Paul Carter, who’d been a state’s witness 20 times, testified that Hash had confessed to him about the murder, according to Turk’s decision, and Culpeper Commonwealth’s Attorney Gary Close, in his closing argument, denied that Carter had a deal for his testimony, which Close later admitted was “misleading,” noted the judge.
Close, who resigned after Hash’s conviction was overturned, is named in Hash’s civil suit, along with Culpeper Sheriff Scott Jenkins, who was an investigator with no experience in capital cases, according to court documents. Two other investigators, the former Culpeper chief jailer, and Carter are also named in the lawsuit, which is scheduled for a jury trial in November.
Harding spent a year and a half assisting a retired FBI agent working for Hash’s pro-bono attorneys, and he felt the emotional impact of that work in March 2012.
“I go to the penitentiary and watch Michael Hash walk out with a box of his belongings where he thought he’d be for the rest of his life,” said Harding.
Another poignant moment came as he sat in court with Hash’s family five months later when a Fairfax prosecutor acknowledged there was no evidence to retry Hash and dropped the charges.
“Over a decade in the penitentiary and that’s all you get—‘Case nolle prossed. Next case,’” said Harding, who’s also bothered by something else: In all the cases in which prosecutors intentionally withheld exculpatory evidence or investigators falsified evidence, the number who have been held accountable and spent at least one night in jail? “Zero,” said Harding.
Good intentions, big mistakes
While the judge’s decision paints the Hash case as the most egregious type of wrongful conviction—that in which investigators and prosecutors are accused of deliberately obfuscating, even in the face of evidence that might exonerate the accused—Harding says the vast majority of wrongful convictions come about not from gross misconduct on the part of law enforcement but from mistakes by well-intentioned investigators.
Eyewitness misidentification is the single greatest cause of wrongful convictions, according to the Innocence Project, a national litigation and public policy organization that seeks to overturn wrongful convictions. Harding has looked at research on best investigative methods for photo line-ups, and realized, “Some of the things I did were wrong.” While he doesn’t think he helped convict anyone who was innocent, he now sees how investigators can influence witnesses in dangerous ways.
He uses the example of a woman who’s been raped. Police identify a suspect, and the detective asks the victim to come in and look at some pictures. “Automatically the victim is feeling, I need to help the police,” explained Harding.
In the past, witnesses were shown six photos at a time. Harding admits he’d group the photo of the suspect with five photos of potential perpetrators who didn’t look like the suspect, then give instructions to the witness. “I’d say, ‘I’m required to tell you the suspect may not be in these pictures,’” he recalled. “They’d hear, ‘I’m required to say that.’”
When a witness claimed to recognize the suspect in the photo, Harding said, his reaction could have reinforced a misidentification. “I might be showing excitement on my face,” he acknowledged. He and other investigators might have gone further than a smile or facial expression following a positive ID. “Then I may high-five the other investigators and say, ‘We got him,’” he recalled. “That sealed the deal in the victim’s brain.”
When that rape victim he described is later asked to identify her attacker after seeing the police photos, she has a clear image of the person she now believes is her assailant. “She says, ‘That face is burned in my brain,’” said Harding. But in fact, the face she’s picturing may not be that of her attacker.
UVA law’s Garrett worked with the Virginia Department of Criminal Justice Services (DCJS) to develop best practices for photo line-ups that call for “blind” administrators who know nothing about the suspect, and advise showing photos sequentially rather than six at time—a practice other researchers challenge—and to put the photos in folders so the administrator doesn’t know which photo the witness is viewing and can’t influence the identification.
Despite issuing those best practices in conjunction with the DCJS, in a follow-up survey, Garrett found that most law enforcement agencies in Virginia have not adopted them. “It seems for some agencies best practices are not a priority,” he said.
That’s why he’s excited about Harding’s plan to put the state’s most experienced law enforcement minds together—police chiefs, sheriffs, prosecutors, researchers, and defense lawyers. “Stakeholders can make it more successful,” said Garrett.
Interrogations are another area that can lead to false confessions and wrongful convictions. Best practices also call for recording interrogations, and while that might seem like a simple and sensible policy that would allow interrogations and confessions to be reviewed objectively after the fact, some agencies still resist. That means questionable interrogation techniques may be used, and the only witness is the accused.
Harding remembers being a young detective working with an older investigator. “He would grab tables and turn them over, and start screaming if the guy wouldn’t confess,” he recounted. “Some suspects would even urinate on themselves.”
A widely used process for police interviewing and interrogation was developed by a Chicago-based organization called John Reid & Associates, which also publishes a textbook on the subject. Harding went to a Reid seminar, and he learned to avoid profanity during interrogations, to make sure suspects were advised of their rights, and to videotape everything. “When I became a supervisor, I sent everyone there,” he said.
Now, Harding’s hoping to help promote ethical and effective interrogation practices across the state, and he says the response from sheriffs and police chiefs to his March 12 letter has been positive.
“Certainly I support anything we can do to improve the criminal justice system, make us more accountable and more transparent,” said Brunswick County Sheriff Brian Roberts, vice chair of the Virginia Law Enforcement Accreditation Commission (Charlottesville Police Chief Tim Longo is its chair). He pointed out that only 89 out of 385 agencies in Virginia have received accreditation, a voluntary process that requires departments to show compliance with 200 standards, according to Harding, who notes that it can be especially burdensome for smaller agencies. Charlottesville and Albemarle police departments are accredited, as is the Albemarle Sheriff’s Office; the Charlottesville Sheriff’s Office is not, but Sheriff James Brown says it’s something he’s considering.
The challenge, Roberts says, is to find the shoe that fits both large departments like Fairfax County, and the smaller, rural departments, such as the one-man office under him in Brodnax.
“We’ve got to figure out a way to raise the bar on wrongful convictions,” said Roberts, “ but I don’t think the answer is a knee-jerk General Assembly mandate.”
There are a number of ways a commission could be convened besides the legislature, says Harding: Through law enforcement organizations, the Supreme Court of Virginia, or the attorney general—Harding met with AG Mark Herring and Secretary of Public Safety Brian Moran, and says both seem supportive.
In a phone interview, Moran expressed support for “anything that improves our criminal justice system and the arrest and imprisonment of criminals.” He also likes Harding’s efforts to involve the stakeholders. “What Sheriff Harding proposed can’t be from the top down,” said Moran. “There needs to be a sharing of information and buy-in.”
Brandon Garrett notes that other states have justice commissions and that in North Carolina, by the time the legislature mandated line-up procedures, they already were firmly in place—voluntarily—by most state law enforcement agencies.
In early April, Harding reached out to the Virginia Association of Commonwealth’s Attorneys, which, it turns out, has formed its own subcommittee to look at the issue. “We are launching our own best practices with an eye toward addressing the avoidance of wrongful convictions,” said Arlington Commonwealth’s Attorney Theo Stamos. She said Albemarle prosecutor Denise Lunsford is the committee’s co-chair.
The prosecutors don’t necessarily agree with law enforcement on what constitutes a best practice. For example, the movement toward sequential rather than simultaneous photo line-ups may not be the best way, said Stamos, citing conflicting research. Still, she welcomes the input of sheriffs and police chiefs. “The more the merrier,” she said.
And contrary to the perception some may have that prosecutors and law enforcement want a conviction at any cost, she calls wrongful convictions “a failure of the system” and cites an old adage from law school: “It’s better to have 100 guilty men go free than to have the wrongful conviction of one innocent man.”
Charlottesville Commonwealth’s Attorney Dave Chapman agrees on the importance of avoiding wrongful convictions. “Many lives have been disrupted, harmed, and ruined,” he said. “People’s lives have been taken.”
But while Chapman commends Harding’s efforts, he says he wants to know more about the justice commission proposal. “I wonder if the appropriate agency is already in place,” he said, pointing to the Department of Criminal Justice Services and its accreditation of police departments.
Undoing damage done
Others feel Harding is not going far enough. Attorney Steve Rosenfield is concerned about those wrongfully convicted who currently are in prison and how difficult it is to get them released—especially if there is no DNA evidence.
For years Rosenfield has maintained that his client, Robert Davis, was the victim of a false confession made during a middle-of-the-night interrogation by Albemarle police. That claim is supported by the Northwestern Center on Wrongful Convictions of Youth, whose co-director Laura Nirider watched the police videotape of the interrogation and reported she saw officers tell Davis that his DNA was found at the scene-—something she said is not true—and repeatedly threaten him with the death penalty. She described it as “one of the most coercive interrogations I have ever seen.”
Davis, then 18 years old, was convicted in the 2003 Crozet murders of Nola Charles and her 3-year-old son. He entered an Alford plea, which doesn’t admit guilt but acknowledges there’s enough evidence to convict him, based on his allegedly coerced confession and the statements of two siblings convicted in the slayings who had implicated him. Both Rocky Fugett and Jessica Fugett, in sworn affidavits, have since recanted their allegations that Davis was involved, and Rosenfield sent a clemency petition to the governor more than a year ago. Nonetheless, Davis, now 29, has languished in prison for 11 years, nearly half of his 23-year sentence.
“It’s almost impossible to win a writ of actual innocence in court,” said Rosenfield. “The present statute only gives one chance to bring a writ of actual innocence, and it’s only available to people who plead innocent, when we know a lot of innocent people plead guilty.”
Nationally, says Rosenfield, 2 to 5 percent of those in prison are thought to be innocent. While he’d like to see a justice commission weed out the innocent people currently in Virginia’s prisons, he applauds Harding’s efforts to prevent future wrongful convictions.
“Harding has tremendous credentials, having been a probation officer, a line police officer, a detective, and having served on state and federal task forces,” said Rosenfield. “The feather in his hat is his work with Michael Hash. And finally, he’s a Republican. That has a little bit more oomph than when Democrats talk about justice.”
Harding hopes that his counterparts at law enforcement agencies across the state will feel distressed enough by the notion that innocent people are serving time for crimes they didn’t commit that they’ll take action. And to motivate his fellow law enforcers, he bought 80 copies of Garrett’s book at his own expense and he’s offering free copies to those who promise to read Convicting the Innocent.
He contrasts the aviation industry’s vigorous investigation of every crashed plane with the criminal justice system’s less aggressive approach to wrongful convictions.
“These are our plane crashes,” he said. “We need to look at what we did wrong and learn from it.”