Old Blue Eyes, Sheriff Chip Harding from Albemarle County, has worked forty years in law enforcement and he is used to put criminal behind bars.
As a Charlottesville Police Department investigator for thirty years, he experienced a conversion on the way to Damascus after reading a novel by John Grisham called The Innocent Man. It is the true story of a former major-league player who spent 11 years on death row before being cleared by DNA evidence. It really hit Chip hard to come to the realization that some people were wrongly convicted and it might even have happened under his watch.
“It embarrassed me, that I’m part of law enforcement that did that,” he said.
Last month, Harding sent a chain 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 or support reform—we would be taken seriously.”
Sheriff Hardin’s background as a social worker and his strong Baptist faith have always guided his actions and it is not surprising that he would lead the way to reform the criminal justice system; known for its resistance to change. He’s long been on the cutting edge of investigative work and he is the one who pressured the General Assembly to fund Virginia’s DNA databank in the 1990s.
He relentlessly pursued hundreds of felony cases during his years as a detective while occupying the post of vice chair of the Good News Jail and Prison Ministry, which provided Bible classes and counseling services to inmates at the Albemarle Charlottesville Regional Jail.
Needless to say that he is a spiritual man who does not take his law and order role lightly and believes in pursuing justice but only in the name of the truth.
When Harding realized he was part of a system that put innocent people behind bars—or worse, to death—he declared the situation “humbling and shameful.” ”And it induced a rage. From there I started wondering how often that was going on.”
How often, let’s see: 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.
The Michael Hash’s case was one of three wrongful convictions that Culpeper had the shameful 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.”
Close resigned after Hash’s conviction was overturned and 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.
Sheriff Harding spent a year and a half helping a retired FBI agent working for Hash’s pro-bono attorneys, and it came home to roost 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.
Imagine the joy when he sat in court with Hash’s family to hear the Fairfax declare publicly that there was no evidence to retry Hash and the charges were consequently dropped.
“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.
Harding is the first one to admit that most wrongful convictions are not stemming from gross misconduct but from mistakes made by well-intentioned investigators.
Eyewitness misidentification is the most outrageous 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 gives an 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,” he explains.
When a rape victim he described is later asked to identify her attacker after seeing police photos, she has a clear image of the person she now believes is her assailant because she was given clear indication of excitement or acknowledgement by detectives. “She says, ‘That face is burned in my brain,’” said Harding. But in fact, the face she’s picturing in her head might simply be the result of a suggestive technique from investigators.
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.
Wrongful interrogations may also 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 worked with an older investigator when he started his career. “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.”
John Reid & Associates has developed a process for police interviewing and interrogation and there is a texbook on the subject. Harding attended the Reid seminar and learned not to swear during interrogations and to make sure suspects were told their rights, and to videotape everything. “When I became a supervisor, I sent everyone there,” he said.
This man wants to help promoting some 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.
“We’ve got to figure out a way to raise the bar on wrongful convictions,” said Brunswick County Sheriff Brian Roberts who is also the vice chair of the Virginia Law Enforcement Accreditation Commission, “ but I don’t think the answer is a knee-jerk General Assembly mandate.”
”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.”
But not all prosecutors 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 Arlington Commonwealth’s Attorney Theo 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.”
Attorney Steve Rosenfield thinks Harding is only scratching the surface and 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.
Rosenfield’s 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.”
“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.”
“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 and it has a little bit more oomph than when Democrats preach about justice for all.
Harding mentions 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.”
Even if it might only be the tip of the iceberg, it is comforting to hear sheriff Harding call his colleagues into action and demand that no man or woman shall be left behind.
Could this be the beginning of a positive chain reaction instead of the continuous chain gang mentality? Harding does not want to save face, he wants justice! Amen to that and eat your heart out Sheriff Arpaio!