By Chris L. Jenkins
They believed that their son was innocent but were afraid that Virginia’s penal system would grab hold of him and never let go.
So his mother and father told him to plead guilty to raping a 14-year-old friend. Their court-appointed attorney told them that was better than risking adult charges and a lengthy prison term.
Two months after their decision, in November 2007, the girl admitted that she had lied.
The family has been fighting ever since to rescue their son from the consequences. He served 17 months in a juvenile prison. He remains on the Virginia sex-offender registry, and the family moved to avoid harassment from neighbors.
Last month, _____, now 20, was arrested during a Friday night football game at the Orange, Va., high school he graduated from after his release from juvenile prison. Unless they have permission from the school, convicted violent sex offenders are not permitted on school grounds. But _____ had received such permission, and he attended school there for more than a year before graduation.
“He can’t do something as simple as go out with his brothers and see a football game,” his mother said as she fought back tears during a recent interview from the family’s modest rambler in Mineral, Va.
_____’s attorneys are working to have the conviction vacated in Stafford County, and the Virginia Supreme Court is expected to hear the case early next year. To his attorneys and other advocates, the case is about the dangers of ineffective counsel and about Virginia’s restrictive post-conviction laws, which make it extraordinarily difficult for people like _____ to get a retrial.
“We have a kid here who’s innocent,” said Andy Block, an assistant professor at the University of Virginia law school and director of the school’s Child Advocacy Clinic, who is helping with _____’s defense. “If the Virginia courts fail to intercede, he will suffer consequences for the rest of his life.”
To his parents, those lasting consequences are the most painful part of this saga. They lament that they couldn’t afford a better attorney for their son.
“He has his whole life ahead of him, and where is he now? With this hanging over his head, he has limited options,” said the father, 44, a warehouse supervisor who often tears up when going over the facts of the case. “We made a mistake in giving up originally. All we want him to have is another chance.”
The sex, the parties now agree, was consensual.
But when the mother caught _____ with her daughter, the girl claimed it was rape. He was arrested in June 2007, and by September he was sent to a juvenile prison outside Richmond.
Just after Thanksgiving 2007, however, her daughter, whose name is being withheld to protect her privacy, told her mother that she lied because she was afraid of getting in trouble. Both _____ and their daughter had learning disorders that required special education when they were in high school. In a letter to the Circuit Court, the girl wrote:
“_____ didn’t rely rape me . . . in fact we did it befor. _____ was a friend of mine befor this even happend . . . but now it just seems that I lied about _____. . . . I will never forgive myself.”
The news set the family on a journey to correct a wrong.
They have written letters, filed motions and appeals, been disappointed and, on occasion, won small victories. They got their son, for instance, an early release from juvenile prison.
The current fight is about the ineffective legal assistance that the _____s claim they received.
‘A false choice’
Deirdre Enright, director of investigation for the University of Virginia’s Innocence Project Clinic, is helping with the case. She understands why the family took the deal.
“It was a false choice,” she said. “All they knew was if they rolled the dice and they were wrong, their son was going to go to prison for a very long time.”
Undoing what’s been done is difficult. _____’s attorneys are aware of very few instances of a person’s name being removed from the state’s sex-offender registry.
“The ball always rolls one way,” Enright said.
But the family is trying anyway.
The family’s argument is that Denise Rafferty, his original attorney, was ineffective. Among their assertions: that Rafferty did not interview school officials who knew that the girl had a history of similar false accusations and that Rafferty did not fight the judge’s decision to put _____ on the sex-offender registry. They also contend that Rafferty told the father that his son should plead guilty because the prosecution had DNA evidence linking him to the crime. A lab report shows that the test was never conducted.
Rafferty, in an interview, acknowledged no wrongdoing. She said she did the best she could with the evidence she was presented. The _____s, she said, often missed appointments, making her efforts to mount a defense difficult.