The Harward Case Underscores Several Issues in the Administration of Justice in the Commonwealth

It is astounding for me to read in the Richmond Times-Dispatch:

DNA proves man innocent of 1982 rape and murder in famous ‘bite-mark’ case, lawyers say

I was even more astounded when I read what the case was:  Harward v. Commonwealth.  Here is the first appeal of this case at the Supreme Court in 1985.  Harward was convicted of the rape and murder in Newport News and was subject to being sentenced to death (he got a life sentence).  First-degree murder in the commission of a rape is capital murder in Virginia.  However, there was twist:  The husband was killed and the wife was raped.

The Supreme Court of Virginia held in a 4-3 decision that the murder had to be of the rape victim not another person at the same time as the rape.  Because the legislature used the word “a person” rather than “any person” to upgrade the murder in the commission of rape to capital murder (and used “any person” for murder for hire and murder while armed with a deadly weapon in the commission of a robbery) the Court held that the murder victim and the rape victim had to be the same person.  (This was subsequently amended.)

From the majority opinion:

We find it most significant that the General Assembly referred to the killing of “any person” in subsections (a) through (d) of Code § 18.2-31 and then, in subsection (e), employed the term “a person.” “Any” and “a” are not synonymous. “Any” includes “all” and “a” is limited to “one.” See County of Loudoun v. Parker, 205 Va. 357, 362, 136 S.E.2d 805, 809 (1964).

From the dissent:

The statute under consideration penalizes as capital murder the killing of “a person during the commission of, or subsequent to, rape.” Code § 18.2-31(e) (emphasis added). In this case, the murderer killed the rape victim’s husband. The only definition of “person” applicable to a victim of a homicide is “an individual human being.” Websters Third New International Dictionary 1686 (3d ed. 1976).

Although contrary views are sometimes expressed, it remains my impression that husbands, as a class, retain their membership in the human race. If that proposition remains true, the victim of the murder in this case was “a person.” If he was, the statute clearly includes this homicide. We refused the defendant’s appeal as to all other assignments of error.

And who says judges don’t have a sense of humor!  I’m not sure how I would have landed on this one.  It was important that the Attorney General conceded the statute was ambiguous.  Probably I’d have voted with the majority.  But it is a close case.

My point now that you have waded through a bunch of legalese is that Harward was originally subject to a death sentence (the jury gave him life) and only by one jurist’s vote on the state supreme court was Harward spared what could have been his execution.  (Upon retrial, Harward was convicted again of first degree murder and sentenced again to life imprisonment.)

Now it turns out that Harward might be innocent!  Here is the report from the R T-D.  I’ll be interested in the end of the story but it sounds to me like since one person and only one person committed the murder and the rape if the DNA shows another perpetrator (the wife had not had sex with anyone else according to her testimony) this is pretty convincing proof of Harward’s innocence.

Several observations:

• Newport News did not have a public defender’s office until 2004.  I do not know nor will I suggest the advocacy was not up to par.  It appears that bite mark evidence was more acceptable in 1982 than today (it is largely discredited now) and of course DNA was not available at that time.  Now the Virginia Senate did pass a study bill to look into a statewide appellate defender’s office (it was originally a study of a comprehensive statewide PD office but Senator Dance, the bill’s patron [I wrote the bill and legislative services largely left it as I wrote it] was told that the scope of the study was too broad for the Crime Commission to study.) and it was held up in the House of Delegates Rules Committee.  I am told that the Crime Commission will study the statewide appellate defender issue anyway.  KUDOS to Hanover’s own senator Ryan McDougle who helped save this bill twice and helped get this study approved!
• But we need better indigent defense services.  Today Harward would be represented by the regional capital defender’s office.  There is simply no reason for the entire state not to have access to these services.  But too many lawyers have this view:

But many of the attorneys said they have heard enough studies.

“I don’t buy any of the statistics from anyone,” said Willard Robinson, who was the Newport News commonwealth’s attorney from 1968 to 1990. “I support the system we have in Newport News. If it ain’t broke don’t fix it.”

• Too many Virginia juries tend to convict people.  I hardly blame the jury in this case with experts saying Harward’s bite marks were found at the scene.  Usually the jury is right when it convicts (there might be an issue as to the level of the charge or the sentence) but as I used to argue to the jury:  Reasonable doubt was not created by liberals in DC but rather was part of our heritage from England and ought to be used when appropriate.  I would like to see the SOLs amended to include more on this and related issues in high schools or more of an emphasis on proper procedure.
• This could have been a death penalty case.  I am not an abolitionist as far as the death penalty for willful murder.  I wish these European do-gooders see some of the heinous crimes (the murder of the entire Harvey family comes readily to mind) and could understand there is a place for the death penalty.  The ONLY WAY I would endorse abolition is if the funds saved were used to improve the legal system.  But this was close to (if the defense is right) an innocent person being executed.

Finally, this is a special case for me.  Note the name of the first lawyer in the case:  Janet I. Farquharson.  I knew Janet.  We went to Wurzburg American High School together and she graduated in 1976 (I would have graduated in 1977 had Dad not been re-stationed in the states.) as a Wolf!

I remember well when Janet was first introduced into our German I class!  Seeking the hand of the attractive blonde future varsity cheerleader was – in this corner:  The future student government president who led a rock band and was an accomplished artist and in the other corner:  Sandy the dorky conservative.  Guess how that turned out.

Janet and I soon turned the student counsel and National Honor Society at WAHS into something like Crossfire – she took the more popular  liberal position and I took the evil right-wing traditionalist view.  (One of the debates in the NHS was whether we would recommend 5 points for an A in what you would now call AP classes.  I said yes reward hard work in harder classes.  Janet thought it was elitist and would play into the hands of who who thought honor society was elitist.  She won the vote.)  Janet was a good debater and was a worthy opponent.  She was awarded a ROTC scholarship (full ride from what I recall) and indicated she’d be a physician.  I told her she would make a better lawyer than a doctor!  No lie!

For one day a year or two into my practice (I was licensed in 1985) I am minding my own business and found the Harward case and you could have knocked me over with a feather!   Janet and the other appellate lawyers in this case did a fine job.

So I say it’s good to remember this final point:  Don’t mess with a military brat!  Especially from Wurzburg High School!