ARTICLES FROM DUSTY
Justice: Equal and Exact
There are some who, consciously or unconsciously, believe that my guilt is assured merely by the length of my
continued incarceration. I must be guilty, they feel, for why else have I spent nearly 26 years in Virginia’s prison
system? (Others have suggested that after so long in prison, guilt or innocence doesn’t really matter, for a person
becomes unfit for society.) Surely the courts would have determined by now that I was convicted wrongly or a
Governor would have granted me clemency, right?
Yet, each month we hear of another exoneration of someone who has been incarcerated for a very, very long time.
We see their smiles on TV as they walk out the prisons. We attempt to imagine their feelings as they hug their
families and those who fought to get them out and awkwardly tell the media how thankful they are to finally be free. It
makes me sick.
Indeed, the courts did recognize my innocence years ago. Well over a decade ago, after the perpetrator of the crime
I’m incarcerated for confessed, I filed the Writ of Actual Innocence in the Virginia Court of Appeals. Before
determining if I could be actually innocent, the court had to know, of course, if this confession was credible. So, they
scheduled an evidentiary hearing to be held in the same court where I was wrongfully convicted. Specifically, the
Appellate Justices asked the circuit court judge to determine if the perpetrator’s confession was credible in that he
acted alone in the crime and whether or not I “had any role in the murder or in the restraining of the victim.” After a
couple days of testimony and a month of review, the judge declared that the perpetrator was, indeed, credible in the
fact that he acted alone in murdering the victim and that I “had no role in the murder or in the restraining of the
victim.” He also made a point to note that I was convicted “largely, if not completely” using circumstantial evidence.
“… [T]here were no other witnesses to the actual incident. There was no scientific or forensic evidence of any type
that would or could have been of assistance to the trier of fact…”
The questions of the Court of Appeals were answered and the answers couldn’t have been more in my favor. They
then declared me – not merely ‘not guilty’, but – ‘actually innocent’ of the charges I was convicted of. They did convict
me of a misdemeanor, which I was guilty of, ordered my record changed and for me to be released. It had never been
done before in Virginia’s history without DNA evidence.
Before I could walk through those prison gates, rejoin my family and community, and awkwardly tell the media how
thankful I am to finally be free, however, the decision was appealed. In an attempt to circumvent the circuit court
judge’s ruling, a new theory was developed. This theory, never presented to a jury, suggested that a jury COULD
believe that, though I “had no role in the murder or in the restraining of the victim”, I COULD still be guilty of murder
and abduction. What? How? You’ve got to pay close attention here, because, though it defied logic and reason it
apparently didn’t defy the law. The theory suggested that abduction doesn’t necessarily require restraint, so that a
jury COULD believe that the victim was, instead, abducted “by deception” (which was never suggested at my trial).
Further, if a jury COULD believe that I was guilty of abduction by deception, then under Virginia’s felony murder law, I
would automatically be guilty of the murder as well, regardless of the fact that I “had no role” in it. For a more full
understanding of this ridiculous notion see my article entitled “One Fateful Word”.
This is why I am still incarcerated: because they simply used the word ‘restraint’ during the evidentiary hearing
instead of ‘abduct’. They wouldn’t have been able to circumvent ‘abduct’. But, the judges at that time were permitted
to consider any possible avenues of guilt; even a completely unreasonable and untested theory, which no jury
WOULD believe. What a jury WOULD believe didn’t matter, only what they COULD believe. Yet, isn’t it odd that the
Court of Appeals specifically used the language of “restraint” when inquiring if the perpetrator’s confession was
credible, but later suggested abduction doesn’t require restraint so that the answer to their question didn’t even
matter?
Lawmakers, politicians and others recognized the virtual impossibility of this writ helping a wrongfully convicted
person, so they changed it, not once, but twice: in 2013 and again in 2020.
The earlier change was extremely significant, especially in consideration of my continued unjust incarceration. No
longer were Justices permitted to determine what a jury COULD do, they were now permitted to specifically consider
what a jury WOULD do, i.e., what is probable. In a unanimous 2018 decision to grant the writ to another fellow,
Appellate Court Justice Cleo Powell (who happens to be the person who developed the “by deception” theory) wrote
about this change: “…the General Assembly has fundamentally changed the nature of our inquiry in actual innocence
cases. The General Assembly’s amendment of the actual innocence statutes has shifted the focus from the jury’s raw
ability to convict (the “could” standard) to the jury’s volition the convict (the “would” standard), thereby significantly
broadening the scope of our review in considering whether or not to grant a writ of actual innocence.” – In re Watford,
295 Va. 114, 806 S.E.2d 651 (2018).
During the infamous year of 2020, the General Assembly again made additional changes to the writ. Whereas the
standard of review was that what is presented had to prove by “clear and convincing evidence” that one is actually
innocent, this has now been changed to “a preponderance of evidence”. This, too, is significant. Bouvier’s Law
Dictionary says that preponderance of evidence is “Proof that an issue is more likely than not”, which sounds pretty
reasonable to me. It further says that, “In such cases, the finder of fact must be persuaded that there is more
evidence in favor of a given claim or assertion than there is against it. This is sometimes framed as 50%+1,… that it is
at least barely more than a perfect balance of the evidence.”
There were 8 requirements that I had to satisfy in order to be granted a Writ of Actual Innocence by the Virginia Court
of Appeals. To summarize them, these were:
1. That I had not pleaded guilty.
2. That I assert innocence and not, for example, merely claiming a legal or procedural error.
3. That I provide an exact description of the newly discovered exculpatory evidence; namely the perpetrator’s confession.
4. That the evidence was previously unknown or unavailable at the time of my trial.
5. That I provide the date and circumstances of when and how I became aware of the evidence.
6. That the evidence could not have been discovered or obtained within 21 days after I was convicted.
7. That the newly discovered evidence “is material and, when considered with all of the other evidence in the current record, will prove that no rational trier of fact COULD have found guilt… beyond a reasonable doubt;”
8. That the evidence “is not merely cumulative, corroborative or collateral.”
It is undisputed that I satisfy all of these, save for #7. Indeed, the initial ruling from the Court of Appeals found that I satisfied all eight, even under the stricter COULD standard as well as the more strict “clear and convincing evidence” requirement. It is precisely #7 that was changed by the lawmakers in 2013.
But if they know that the original COULD language was unjust, and the “clear and convincing evidence” standard unfair, why wouldn’t they allow me to refile the writ under the new changes? I WOULD be declared ‘actually innocent’ if I were just given the opportunity to file under this basically brand new write.
I used “Equal and Exact” in the titled of this article, because these are the two words Thomas Jefferson used to describe justice, and I have attempted to spell out with exactness some of the legal problems in my case. Does anyone, any reasonable thinking and moral person, believe that justice has been served in my case? No one who has ever known me believes that I could possibly harm a woman. No one who is the least bit legally minded can possibly review my case and believe that I should be in prison, especially after 26 years behind bars. No one who listens to and watches the perpetrator testify about his horrific acts (which is at least partially available on YouTube) can possibly feel that justice is being served by my continued incarceration. I was wrongfully convicted, many people know it, yet I have lived most of my life in a concrete box.
In the moral universe, is 26 years not a long enough arc? At what point is it supposed to bend towards justice?
Finally, I have purposefully left out of this article both the name of the perpetrator and that of the victim. I did so only to keep the focus on the detailed legalese. However, when invoking justice I am compelled to at the very least acknowledge the horrific unjust taking of the life of a wonderful young woman. Jennifer Evans was 100% innocent; she neither saw coming nor provoked the spontaneous violent attack by an inebriated, highly trained and extremely dangerous individual. That individual is where he is supposed to be, he acknowledges it, he has begged forgiveness from me and my family, but I am unsure that he truly grasps the extent of the impact of his egregious actions, especially upon the loved ones of Jennifer.
continued incarceration. I must be guilty, they feel, for why else have I spent nearly 26 years in Virginia’s prison
system? (Others have suggested that after so long in prison, guilt or innocence doesn’t really matter, for a person
becomes unfit for society.) Surely the courts would have determined by now that I was convicted wrongly or a
Governor would have granted me clemency, right?
Yet, each month we hear of another exoneration of someone who has been incarcerated for a very, very long time.
We see their smiles on TV as they walk out the prisons. We attempt to imagine their feelings as they hug their
families and those who fought to get them out and awkwardly tell the media how thankful they are to finally be free. It
makes me sick.
Indeed, the courts did recognize my innocence years ago. Well over a decade ago, after the perpetrator of the crime
I’m incarcerated for confessed, I filed the Writ of Actual Innocence in the Virginia Court of Appeals. Before
determining if I could be actually innocent, the court had to know, of course, if this confession was credible. So, they
scheduled an evidentiary hearing to be held in the same court where I was wrongfully convicted. Specifically, the
Appellate Justices asked the circuit court judge to determine if the perpetrator’s confession was credible in that he
acted alone in the crime and whether or not I “had any role in the murder or in the restraining of the victim.” After a
couple days of testimony and a month of review, the judge declared that the perpetrator was, indeed, credible in the
fact that he acted alone in murdering the victim and that I “had no role in the murder or in the restraining of the
victim.” He also made a point to note that I was convicted “largely, if not completely” using circumstantial evidence.
“… [T]here were no other witnesses to the actual incident. There was no scientific or forensic evidence of any type
that would or could have been of assistance to the trier of fact…”
The questions of the Court of Appeals were answered and the answers couldn’t have been more in my favor. They
then declared me – not merely ‘not guilty’, but – ‘actually innocent’ of the charges I was convicted of. They did convict
me of a misdemeanor, which I was guilty of, ordered my record changed and for me to be released. It had never been
done before in Virginia’s history without DNA evidence.
Before I could walk through those prison gates, rejoin my family and community, and awkwardly tell the media how
thankful I am to finally be free, however, the decision was appealed. In an attempt to circumvent the circuit court
judge’s ruling, a new theory was developed. This theory, never presented to a jury, suggested that a jury COULD
believe that, though I “had no role in the murder or in the restraining of the victim”, I COULD still be guilty of murder
and abduction. What? How? You’ve got to pay close attention here, because, though it defied logic and reason it
apparently didn’t defy the law. The theory suggested that abduction doesn’t necessarily require restraint, so that a
jury COULD believe that the victim was, instead, abducted “by deception” (which was never suggested at my trial).
Further, if a jury COULD believe that I was guilty of abduction by deception, then under Virginia’s felony murder law, I
would automatically be guilty of the murder as well, regardless of the fact that I “had no role” in it. For a more full
understanding of this ridiculous notion see my article entitled “One Fateful Word”.
This is why I am still incarcerated: because they simply used the word ‘restraint’ during the evidentiary hearing
instead of ‘abduct’. They wouldn’t have been able to circumvent ‘abduct’. But, the judges at that time were permitted
to consider any possible avenues of guilt; even a completely unreasonable and untested theory, which no jury
WOULD believe. What a jury WOULD believe didn’t matter, only what they COULD believe. Yet, isn’t it odd that the
Court of Appeals specifically used the language of “restraint” when inquiring if the perpetrator’s confession was
credible, but later suggested abduction doesn’t require restraint so that the answer to their question didn’t even
matter?
Lawmakers, politicians and others recognized the virtual impossibility of this writ helping a wrongfully convicted
person, so they changed it, not once, but twice: in 2013 and again in 2020.
The earlier change was extremely significant, especially in consideration of my continued unjust incarceration. No
longer were Justices permitted to determine what a jury COULD do, they were now permitted to specifically consider
what a jury WOULD do, i.e., what is probable. In a unanimous 2018 decision to grant the writ to another fellow,
Appellate Court Justice Cleo Powell (who happens to be the person who developed the “by deception” theory) wrote
about this change: “…the General Assembly has fundamentally changed the nature of our inquiry in actual innocence
cases. The General Assembly’s amendment of the actual innocence statutes has shifted the focus from the jury’s raw
ability to convict (the “could” standard) to the jury’s volition the convict (the “would” standard), thereby significantly
broadening the scope of our review in considering whether or not to grant a writ of actual innocence.” – In re Watford,
295 Va. 114, 806 S.E.2d 651 (2018).
During the infamous year of 2020, the General Assembly again made additional changes to the writ. Whereas the
standard of review was that what is presented had to prove by “clear and convincing evidence” that one is actually
innocent, this has now been changed to “a preponderance of evidence”. This, too, is significant. Bouvier’s Law
Dictionary says that preponderance of evidence is “Proof that an issue is more likely than not”, which sounds pretty
reasonable to me. It further says that, “In such cases, the finder of fact must be persuaded that there is more
evidence in favor of a given claim or assertion than there is against it. This is sometimes framed as 50%+1,… that it is
at least barely more than a perfect balance of the evidence.”
There were 8 requirements that I had to satisfy in order to be granted a Writ of Actual Innocence by the Virginia Court
of Appeals. To summarize them, these were:
1. That I had not pleaded guilty.
2. That I assert innocence and not, for example, merely claiming a legal or procedural error.
3. That I provide an exact description of the newly discovered exculpatory evidence; namely the perpetrator’s confession.
4. That the evidence was previously unknown or unavailable at the time of my trial.
5. That I provide the date and circumstances of when and how I became aware of the evidence.
6. That the evidence could not have been discovered or obtained within 21 days after I was convicted.
7. That the newly discovered evidence “is material and, when considered with all of the other evidence in the current record, will prove that no rational trier of fact COULD have found guilt… beyond a reasonable doubt;”
8. That the evidence “is not merely cumulative, corroborative or collateral.”
It is undisputed that I satisfy all of these, save for #7. Indeed, the initial ruling from the Court of Appeals found that I satisfied all eight, even under the stricter COULD standard as well as the more strict “clear and convincing evidence” requirement. It is precisely #7 that was changed by the lawmakers in 2013.
But if they know that the original COULD language was unjust, and the “clear and convincing evidence” standard unfair, why wouldn’t they allow me to refile the writ under the new changes? I WOULD be declared ‘actually innocent’ if I were just given the opportunity to file under this basically brand new write.
I used “Equal and Exact” in the titled of this article, because these are the two words Thomas Jefferson used to describe justice, and I have attempted to spell out with exactness some of the legal problems in my case. Does anyone, any reasonable thinking and moral person, believe that justice has been served in my case? No one who has ever known me believes that I could possibly harm a woman. No one who is the least bit legally minded can possibly review my case and believe that I should be in prison, especially after 26 years behind bars. No one who listens to and watches the perpetrator testify about his horrific acts (which is at least partially available on YouTube) can possibly feel that justice is being served by my continued incarceration. I was wrongfully convicted, many people know it, yet I have lived most of my life in a concrete box.
In the moral universe, is 26 years not a long enough arc? At what point is it supposed to bend towards justice?
Finally, I have purposefully left out of this article both the name of the perpetrator and that of the victim. I did so only to keep the focus on the detailed legalese. However, when invoking justice I am compelled to at the very least acknowledge the horrific unjust taking of the life of a wonderful young woman. Jennifer Evans was 100% innocent; she neither saw coming nor provoked the spontaneous violent attack by an inebriated, highly trained and extremely dangerous individual. That individual is where he is supposed to be, he acknowledges it, he has begged forgiveness from me and my family, but I am unsure that he truly grasps the extent of the impact of his egregious actions, especially upon the loved ones of Jennifer.