Wrongful conviction highlights the need for reform

The following editorial was published by the Richmond (VA) Times-Dispatch on April 11, 2016.

Keith Allen Harward walked out of prison a free man last Friday — 33 years after being convicted of a crime he didn’t commit.

Many people deserve credit for helping him — from the justices of Virginia’s Supreme Court, who acted swiftly on his writ of innocence, to his lawyers with the Innocence Project, who filed it. But we were struck that Harward singled out a reporter: The Times-Dispatch’s Frank Green, whose stories Harward credited with adding urgency to the actions of state officials.

Green is an award-winning newspaper veteran — honored again recently as Outstanding Journalist of 2015 by the Virginia Press Association — and a practitioner of old-school journalism, the kind that wears out a lot of shoe leather chasing down leads and checking facts. He does the sort of hard work that drive-by talking heads, news “aggregators” and most bloggers rely on — sometimes without even crediting the source. He gets results.

But while it’s gratifying to see Harward walk free, that should not be the end of the story.

First, he deserves compensation. No amount of money can make up for the decades the commonwealth took from him, and all the things that might have been: a family, a career, a home to grow old in, the million little pleasures that daily life affords — none of which he got to experience. Money is a poor substitute, but the state owes him at least that much. It’s also apparent from some of Harward’s comments Friday that the injustice of his imprisonment was compounded by some dark experiences behind bars: “There are some evil, sadistic people back there,” he said standing outside the Nottoway prison he had just left. “And there’s some bad inmates, too. Think about what I just said.”

Second, there should be some accountability. Although the doctrine of sovereign immunity generally shields government employees from civil liability, exceptions can apply in cases of gross negligence. We can’t say whether the missteps and, in Harward’s telling, willful disregard for the truth that led to his imprisonment legally qualify. But to the extent those responsible for his conviction can be held to account, they should be.
Third, Harward’s case should shock the commonwealth into adopting systemic reforms. Among them: a serious reconsideration of the value of bite-mark analysis, which played a key role in his conviction and which might be not much better than astrology in terms of scientific rigor.

The state also should require more thorough prosecutorial discovery — the process in which the state allows defense attorneys to see the evidence against their clients. The Supreme Court’s ruling in Brady v. Maryland requires prosecutors to disclose all exculpatory evidence. But Virginia allows commonwealth’s attorneys to choose what qualifies as exculpatory. That’s an inherent conflict of interests that begs for redress.

And the state should ask Harward for details about the “evil, sadistic people” he spoke of. Individuals like that should not have the kind of power prison guards wield.

No matter how many reforms are adopted, of course, the judicial system never will achieve perfection. No system that involves flawed human beings can. But that sobering reality should not provide an excuse for less than total effort in the pursuit of perfection. What happened to Harward — and others before him, such as Earl Washington and Thomas Haynesworth — is simply heinous. Virginia should not compound those crimes with indifference about whether similar ones might happen in the future.