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Virginia Supreme Court Grants Relief Under Revised Actual Innocence Statute

by Dale Chappell

The change of a single word in Virginia’s actual innocence statute “fundamentally changed the nature” of actual innocence inquiries, the Supreme Court of Virginia announced, finding a petitioner proved his actual innocence under the revised statute.

In 1978, Roy Watford pleaded guilty to the rape of a 12-year-old girl. When a DNA test in 2016 showed that he was not linked to the DNA evidence found at the crime scene, he petitioned the Virginia Supreme Court for a writ of actual innocence. After an evidentiary hearing during which the rape victim testified that she “could not remember” identifying Watford as her attacker and other witnesses said Watford was not in the area on the day of the rape, the State still urged the Court to dismiss Watford’s petition because he could not conclusively establish he was not one of the three men who had raped the girl and because he pleaded guilty. The Supreme Court did not agree.

The General Assembly lowered the burden of proof in 2013 for petitioners filing actual innocence petitions under Code § 19.2-327.5. Instead of having to prove “no rational trier of fact could have found proof beyond a reasonable doubt,” petitioners now need only show that no trier of fact would have done so. In an issue of first impression, the Supreme Court analyzed how changing that single word in the statute lessened the burden for petitioners.

The “could” standard prior to the 2013 amendment “effectively required that a petitioner prove his innocence beyond any reasonable doubt,” the Court explained. In contrast, the current “would standard” broadens the scope of review in deciding whether to grant a writ of actual innocence.

The Court explained the “would” standard as follows: “We are required to look beyond whether the evidence is sufficient to sustain the conviction; we must also examine the likelihood of a reasonable juror finding the petitioner guilty beyond a reasonable doubt once all of the evidence has been fairly considered.” The Court added that the “would” standard requires that “a petitioner’s evidence must do more than establish the theoretical possibility that a rational fact finder would choose to acquit; it must establish such a high probability of acquittal, that this Court is reasonably certain that no rational fact finder would have found him guilty.”

Applying that standard to this case, the Court concluded that Watford satisfied it. Under the statute, a court must imagine a “hypothetical new trial,” the Court said, and determine whether the new evidence would lead to an acquittal. Watford’s new evidence added to the circumstances of his case proved his actual innocence.

Under the revised actual innocence statute and taking the facts of the case as a whole, including the new DNA evidence, the Virginia Supreme Court determined that Watford proved by “clear and convincing evidence” no rational trier of fact would have found him guilty beyond a reasonable doubt.

Accordingly, the Court granted his petition for a writ of actual innocence and vacated his conviction. See: In re Watford, 809 S.E.2d 651 (Va. 2018). 


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Related legal case

In re Watford



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