Writs of actual innocence; petitions. (HB1355)

Introduced By

Sen. Joe Morrissey (D-Richmond) with support from co-patron Sen. Scott Surovell (D-Mount Vernon)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Petitions for writs of actual innocence. Provides that petitions for writs of actual innocence in the case of either biological or nonbiological evidence may be brought for any felony and upon any plea. The bill also provides that, for both writs, the petitioner shall allege that the new evidence, had it been available at trial, would have created in a rational trier of fact reasonable doubt as to the guilt of the petitioner, as opposed to the current required allegation that the evidence "will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt." For the writ based on nonbiological evidence, the bill removes the limit that only one writ per conviction may be filed. Read the Bill »


Bill Has Failed


11/30/2012Prefiled and ordered printed; offered 01/09/13 13101392D
11/30/2012Referred to Committee for Courts of Justice
01/15/2013Assigned Courts sub: #1 Criminal
01/16/2013Subcommittee recommends passing by indefinitely
02/05/2013Left in Courts of Justice


Mary Devoy writes:

With the recent recant in the Jonathan Montgomery case (Oct/Nov ’12) and the problems with Virginia’s 21 Day rule finally becoming crystal clear after asking Delegates and Senators to patron a bill for the last 4 GA sessions it looks like 2013 might finally be the year to fix it, or maybe not.

Based on the current wording of §§ 19.2-327 and proposed HB1355 it seems a large segment of citizens are being forgotten, the misdemeanors.

A misdemeanor sexual offense is nothing like a misdemeanor drug, theft or assault conviction.
A Virginian who is convicted or pleads to a misdemeanor sexual offense is mandated to register as a sex offender for a minimum of 15 years in Virginia before they are even allowed to petition the court to be removed, and even then the majority of them are denied by the judge.

For 15+ years the opportunities for a registered sex offender are seriously limited when it comes to obtaining an education, housing, employment and even your movement in public places and your participation in your family’s lives. Just being a registered sex offender can result in a ban from seeing your own children. Ignoring a recant in such cases would be denying an innocent parent the right to participate in their child's life and that child's chance to know their parent who was wrongly convicted by the state.

Also any violation of the Virginia registry and the restrictions/requirements will result in a new felony charge even for an administrative issue. A felony penalty when the original conviction that mandated registration was a misdemeanor and you’re not even on probation.

A sexual misdemeanor conviction in reality is very close to a lifetime sentence in the Commonwealth, because of the registry.

So the proposed changes to the statute (HB1355) wouldn’t apply to our citizens with a misdemeanor conviction who is required to register as a sex offender even if a witness or victim recants 22 days, 22 months or 12 years later. And so that Virginian would remain on the Virginia Sex Offender Registry and would be facing a new felony conviction for any failures even if new evidence proved they were innocent and should never have been convicted. Not to mention all the state resources being wasted monitoring and registering this innocent citizen each year.

The 21 day rule needs a complete overhaul. For four years I’ve suggested either repealing it entirely or changing the 21 days to be 21 years.

Right now Jonathan Montgomery has been freed from prison but he’s still required to register as a sex offender and abide by all the regulations and restrictions that go along with it. Just like Thomas Haynesworth had to and the Norfolk 4 still do. A conditional pardon, a partial pardon, a full pardon should all eliminate the mandate to register as a sex offender.But, no they must hire an attorney, go to court and wait(months or years) for a judge to decide if they can be freed from the undeserved label of sexual predator.

A recant should not only apply to a felony conviction if the 21 Day Rule is amended, it should include the misdemeanors too.

There should be no deadline on the truth or on justice being served in the Commonwealth and every recant should be taken seriously. The state took the original claim seriously, so why not the recant? If the state got it wrong the first time around by convicting an innocent person, they should want to get it right even if it's a whopping 22 days later.

ACLU-VA Prisoners' Rights, tracking this bill in Photosynthesis, notes:

The ACLU of Virginia supports legislation that expands the use of writs of actual innocence to juveniles. No person should be deprived of liberty for crimes he or she did not commit nor held any longer than necessary once known to innocent.

ACLU-VA Criminal Justice, tracking this bill in Photosynthesis, notes:

The ACLU of Virginia supports this and other legislation that seeks to mitigate the effect of the 21 day rule depriving circuit courts of jurisdiction to hear writs of actual innocence.