Attorney General Ken Cuccinelli was “pleased” with the move of the Supreme Court of Virginia to issue a Writ of Actual Innocence to Garry Lowell Diamond on Friday.
Diamond had already served his prison sentence on convictions for abduction with intent to defile and two counts of abduction.
“I was pleased to hear the news that Mr. Diamond was granted a Writ of Actual Innocence. It is imperative that our justice system delivers justice, including the recognition that when a mistake has occurred, a meaningful judicial remedy is available.
The new evidence supporting Mr. Diamond’s claim was DNA testing that eliminated him as the contributor of DNA on the victim’s clothing. The evidence came to light as part of an ongoing review process being conducted by the Department of Forensic Science of case files that contain biological evidence which was collected before DNA testing was available. It is the same program that also led to the exonerations of Thomas Haynesworth, Calvin Cunningham, and Bennett Barbour.
“Normally, as attorney general, I am fighting to keep people in jail. But this office has a responsibility to see that justice is done in every case, regardless of which side of the courtroom that justice may fall.”
Cuccinelli has long been a proponent of providing those who were wrongfully convicted a means to overcome Virginia’s 21-day finality rule and seek relief where new evidence became available after trial. In 2003, then-Senator Cuccinelli cast the deciding vote in the Senate Courts of Justice committee (8-7) to adopt legislation introduced by Sen. Henry Marsh (SB 705) that would have allowed convicted and incarcerated individuals to petition the Virginia Supreme Court for a writ of actual innocence based upon any new non-testimonial evidence, not just DNA evidence. The bill, however, failed to pass the House of Delegates.
In 2004, Cuccinelli supported legislation which passed and created the legal procedure that vindicated Thomas Haynesworth in 2011. The attorney general also supported the exonerations of Calvin Cunningham and Bennett Barbour, who won biological writs of innocence in the Supreme Court.
This past General Assembly session, the attorney general wrote a bill (HB1432) which would make it easier for those who have been wrongly convicted of a crime to bring up new evidence to prove their innocence, even beyond 21 days after their convictions. The bill passed the House unanimously, and then passed the Senate 37-2. The bill is now being reviewed by the governor for his signature.
The bill amends Virginia’s Writ of Actual Innocence law to change the standard the defendant must satisfy to be exonerated. The concern was that the current law is so stringent that even people who are innocent may not be able to get relief. The bill also formally allows the attorney general to provide the court with evidence of innocence, not just guilt.
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