The University of Richmond Institute for Actual Innocence won two important cases for clients this summer.
First, in June, President Joe Biden commuted the sentence of Leshay Rhoton, who was convicted of a non-violent drug offense and sentenced to 20 years in federal prison. She had served 12.5 years when her sentence was commuted.
Then, Marvin Grimm was exonerated after 45 years of wrongful incarceration.
Understanding clemency and commutations
The Institute takes up two kinds of cases: clemency and actual innocence. Clemency cases are pleas for mercy–they generally don’t dispute that a person is guilty of the crime they were convicted of. Rather, they make the case that the person has already been punished enough, that they have successfully been rehabilitated, or that they were over-punished in the first place.
“We couldn’t have the carceral state that we have in this nation, in its scope, without over-punishing a lot of people,” said Mary Kelly Tate, director of the Actual Innocence Institute at University of Richmond.
Rhoton’s is the second presidential commutation received as a result of the work of U of R law students, under Tate’s guidance, at the Institute. In 2017, President Barack Obama commuted the nonviolent drug sentence of a man who had been sentenced to life.
“Presidential commutations are just vanishingly rare, so it’s quite extraordinary,” Tate said.
President Joe Biden has granted just 24 pardons and 129 sentence commutations over the course of his presidency. The vast majority of petitions are denied outright or closed without presidential action. Thousands more petitions await a decision.
Receiving two presidential commutations is an impressive feat in part because the U of R Institute for Actual Innocence is small compared to other innocence organizations, and in part because of judicial finality–the idea that once you’ve had your due process, there are very limited channels to get anyone to take a second look. Cases can drag on for years.
Here’s how the process works. The institute gets handed the case, often from the National Association of Criminal Defense attorneys. The first step is to gather the case’s record, including filings from the initial trial and appeal, which are often hundreds of pages long. From there, students analyze documents and meet with the incarcerated person–at the federal level, that can mean anywhere in the country, so those conversations are often over the phone or by video. Tate says it’s important to build a relationship of trust, because eventually, the students will have to delve into topics like childhood trauma or educational difficulties or homelessness. A key part of the process is talking through a release plan.
“If you were given the opportunity to leave prison, where would you go? How would you build your life?” Tate said. “No parole board, no governor and no president is going to grant release if there is not a very strong release plan.”
Tate and her students talk to people who can attest to an incarcerated person’s character and offer support in a post-incarceration world, including family members, teachers and community members. But it can be difficult, particularly in the federal system, where family members and other social supports can be scattered across the country. Rhoton, who is from Tennessee, was incarcerated in Minnesota.
“What we do when we incarcerate a human being is (implement) a punishment that is not only physical isolation and physical separation, but in addition to that the severing of social ties,” she said. “We then ask them to have a social solution for their release.”
As part of this portrait painting of an incarcerated person and their case, Tate and her students explore potential arguments. Sometimes, those arguments are legalistic–sentencing schemes can change over the years, and if someone committed the same crime today, they might not have been eligible for as severe a sentence as they were decades ago. But mostly, the arguments surround rehabilitation and the inherent belief that people deserve second chances.
“It’s really an after-action review that’s got a comprehensiveness to it that is a luxury,” Tate said. “But what offsets the luxury is that the relief is rarely given.”
Actual innocence
The other kind of cases the U of R Institute for Actual Actual Innocence takes up is, of course, those involving actual innocence, where the person was never guilty of the crime for which they were incarcerated. To build those cases, Tate and her students must present new evidence, which can include things like DNA and witness recantation. Tate says the Institute is inundated with requests from people who say they’re innocent.
To choose a case, Tate looks for patterns in the original conviction, like cross-racial identification, which has a lower accuracy than when witnesses identify people belonging to the same race; coercive conditions in police interrogations; and investigations that seem to have been particularly short.
In June, the Virginia Court of Appeals declared Marvin Grimm innocent of the sexual assault and murder of a child for which he was convicted in the 1970s. This marks the second exoneration secured by the institute, following a 2013 case involving a 1978 triple abduction in Virginia.
From the start, there were problems with the case. Grimm’s confession didn’t match the evidence, and when he was unable to provide details about the events of the death, police fed him the answers.
“Mr. Grimm pled guilty out of fear that he would be subjected to the death penalty if he declined the plea agreement,” Tate said. “But that was concerning as well, because he was told that the death penalty was on the table, yet at that time in the Virginia law, he would not have been death penalty-eligible for this particular crime. So in a sense, the pressure that was put on him is emanating from something that’s not legally accurate.”
There was something else troubling about Grimm’s case. Physical evidence–shoes, a coat, towels, and several hairs–were analyzed by forensic analyst Mary Jane Burton in 1975. She reported that hairs tested were “consistent” with those of the victim. She also found Type O blood on swabs from the victim she tested–Grimm had Type A, a fact that defense neglected to point out.
But Mary Jane Burton was wrong, about Grimm’s case and potentially thousands of others. In the years since Grimm’s conviction, 12 men were exonerated as a result of faulty testing of evidence by Burton. Following the 12-part podcast series Admissible from VPM and Story Mechanics (ed. note: Listen to this at end of article), which detailed allegations that Burton had gone so far as to falsify results, some 4,800 additional cases are under review.
Tate, as local co-counsel, and her students worked on Grimm’s case for 13 years, tracking down audio of the police interrogation and photos from the crime scene. More than 10 students worked on the case between 2007 and 2020, including Lindsey Vann, who graduated in 2012 and now does post-conviction work at Justice 360, a nonprofit in South Carolina.
“It was really exciting to have participated even a little bit in a case that ultimately was successful,” Vann Said.
Ultimately, Grimm, with representation from Tate and her students and lawyers at Arnold & Porter, was granted new DNA testing, and in 2020 was released on parole. It took another 4 years for additional DNA testing and for the court to ultimately rule he was innocent. Grimm spent a total of 45 years in prison, the longest of any exoneree in the estate.
“The gravity of this miscarriage of justice (occurs) on a human level, with regard to the tragedy for Mr. Grimm and his family,” Tate said. “But it’s also an epic failure of the criminal legal system. Mary Jane Burton’s name is attached to this case, and her work was attached to this case, and I believe that that’s going to further magnify the Commonwealth of Virginia’s need to have a major reckoning with all the cases that she touched.”
Importantly, Tate said, that also means looking in the mirror and determining what cultural and policy forces created a Mary Jane Burton in the first place.
Tate explained that Grimm was able to introduce new evidence that demonstrated his innocence, thanks in part to a change in Virginia’s legal code. She and others had advocated for this change in 2011. Previously, the writ of actual innocence required that newly discovered evidence must clearly and convincingly show that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” In other words, to overturn a conviction, the new evidence had to be so compelling that there was no conceivable scenario in which a juror could find the defendant guilty—a nearly impossible standard to meet.
However, a one-letter change in the law—shifting the standard to “no rational trier would have found proof of guilt”—significantly altered how Virginia courts consider new evidence, including DNA testing.
After so many years involved with his case, Tate considers Grimm a friend.
“It’s a paradoxical set of emotions, because while he’s been vindicated, for nearly half a century, the state of Virginia confined him,” she said. “His freedom was taken. His natural life was taken. He was forced to live life as a prisoner for half a century, practically, and that’s just an injury that cannot be remediated fully.”
Tate and her students at the Actual Innocence Institute at the University of Richmond will keep plugging away on cases of actual innocence and clemency. She said it’s a moment for Virginia to ask itself whether the forces that permit wrongful incarceration and over punishment are still at play.
“It’s an overzealousness,” she said. “It’s a sort of built in bias that at times is present–not across the board, but it really begs the question with regard to how the Commonwealth of Virginia needs to assess the culture that surrounds its law enforcement and prosecutorial subcultures.”
