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Panelists discuss idea of innocence commission at Tom Tom event

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Posted: Sunday, April 13, 2014 9:24 pm | Updated: 9:29 pm, Sun Apr 13, 2014.

Hours after finding his parents dead in their Long Island, N.Y., home, Marty Tankleff admitted to a crime he did not commit. He was 17, shaken and ready to say anything to get out of the police interrogation room after five hours of questioning, said University of Virginia law professor Stephen Braga, who helped to clear Tankleff 18 years later.

“The confession was not recorded, not signed and … didn’t match the physical evidence at the scene,” Braga said.

The flawed procedures at work in Tankleff’s case underscore the need for independent state commissions dedicated to strengthening investigative practices and preventing wrongful convictions, Braga said.

Braga and two UVa law colleagues, as well as Albemarle County Sheriff J.E. “Chip” Harding and Rutherford Institute founder John W. Whitehead made their case for a Virginia Justice Commission on Sunday at The Haven as part of the Tom Tom Founders Festival.

“I call it a justice commission, not an innocence commission, because we’re also about getting justice for the victim,” Harding said. “If an innocent guy gets locked up, the bad guy is still out there.”

About a dozen other states have similar entities dedicated to strengthening investigative practices and improving procedures that can land the wrong people behind bars — practices Harding says he engaged in over four decades in criminal justice.

“I investigated hundreds of cases, and when I took them to court I never lost a single one, and I thought I was a ‘cutting-edge’ investigator,” Harding said. “Now, based on what I’ve learned, I see that I wasn’t.”

Harding launched the proposal in a letter-writing campaign to sheriffs and police chiefs across the state last month. He has since met with state Secretary of Public Safety Brian Moran and Virginia’s attorney general, Mark Herring, he said.

“They both seemed very interested and said they’d get back with me about it,” Harding said.

A spokesman said Herring was still considering the proposal.

“Attorney General Herring is committed to ensuring just, fair and correct outcomes in Virginia’s legal system,” said Michael Kelly, communications director for Herring. “He had a private conversation with Sheriff Harding during his public safety tour a few weeks ago about ways to ensure proper outcomes and he told the sheriff he would give due consideration to the issues he raised and proposed solutions.”

Harding said it was too soon to say how the commission would work and what, exactly, it would do. As envisioned, the panel could help oversee the creation and implementation of model policies for police procedures and review claims of innocence, he said.

He drew inspiration for the idea from John Grisham’s “The Innocent Man,” Harding said, but the book that he has offered to send any chief or sheriff who asked is UVa law professor Brandon Garrett’s “Convicting the Innocent: Where Criminal Prosecutions Go Wrong.” He has mailed about 75 copies, he said.

Garrett said Sunday that his work demonstrates the importance of adherence to model policies. Misidentification by a victim or witness was a factor in 13 of 16 convictions in Virginia that were later proved wrongful by DNA evidence, he said.

A survey in August of law enforcement agencies across the state found that only a few had implemented the best practices for eyewitness identifications recommended by the Department of Criminal Justice Services in 2011, Garrett said.

Reliance on best practices is crucial, said Charlottesville Commonwealth’s Attorney Dave Chapman, who recalled an incident in the past decade where the wrong man was identified and arrested in a sexual assault case after a suggestive identification procedure.

“Within five days we had DNA results that made it clear it was a misidentification,” Chapman said. “You always have to be on guard, because our responsibility is enormous, both to the people involved in the case and to the community.”

Police in Albemarle and Charlottesville use the model policy, officials said. Both Chapman and Charlottesville Police Chief Timothy J. Longo said they support the commission in concept.

“Improvements need to be made, the question is how to do it, and the justice commission is not a panacea,” Chapman said. “A commission may be just the thing that’s needed, or it may be part of the solution that’s needed.”

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