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April 13, 2017

"Three Reasons Why Virginia May Execute an Innocent Man"

The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan.  Here are excerpts:

In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.

How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.

1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...

Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.

2. The Myth of the Right to Counsel ...

Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.

3. Not So Appealing Appeals Process ...

Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."

That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States.  In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.

In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process.  But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.

This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.

UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.

April 13, 2017 at 06:30 PM | Permalink


Professor Berman,

Do you believe that you have any obligation in your blog to correct the misstatements baldly asserted by Prof. Drinan? Have you read the opinion of the 4th Circuit in this case? It shows that alleged "recanted" statements consisted of affidavits and not testimony. It also shows that one such affidavit was made by the habeas attorney who purportedly spoke with someone overseas who claimed to be the witness. It similarly shows that all the law enforcement witnesses who were accused of misconduct testified before the U.S. District Court Judge and all flatly denied all the alleged misconduct. (One such allegation was that the prosecutor visited him in prison and brought cookies she had baked for him...) The Judge found their testimony "credible" and found the recanting affidavits "unreliable".

Education for citizenship indeed.

Posted by: Cal. Prosecutor | Apr 13, 2017 7:42:02 PM

Prosecutor needs a 12 ga vasectomy

Posted by: MidWestGuy | Apr 13, 2017 8:36:17 PM

Prosecutor: Of course, it would have been ideal if the recantations had been in the form of live testimony (and not affidavits), but as the Dist. Ct. judge noted, the witnesses were unavailable to testify. One of the key witnesses had left the US and was not amenable to subpoena power and the other pleaded the 5th because he feared exposure to additional criminal charges.

Posted by: CHD | Apr 14, 2017 8:53:15 AM

So the triggerman killed Stephanie Sipe out of the clear blue sky?

Posted by: federalist | Apr 14, 2017 9:08:03 AM

I see National Review posted a letter from twenty-five conservatives and libertarians requesting the governor to halt the execution because of doubt of guilt:


This includes something used to help show he was dangerous/guilty enough to execute:

"At trial, the prosecutor argued that Teleguz should be sentenced to death, in part, because he was dangerous and involved in another murder in Ephrata, Pennsylvania. Yet, it was later revealed that the testimony about this supposed murder was completely fabricated – the murder in Ephrata never even happened."

The concern in all the analysis I could find focused on the deficiency of the evidenced used to convict. I could not find an alternative theory for the crime being offered. That would be useful, obviously, but not necessary.

Posted by: Joe | Apr 14, 2017 10:11:54 AM

Joe, the problem is that we can't trust "your side" (a term I use loosely)--many of these innocence claims (e.g. Roger Coleman, Troy Davis in 2011 and probably the worst of all, Kevin Cooper) turn out to be completely bogus. A lot of the "conservatives" take headlines and don't go into the weeds and take an opportunity to virtue-signal.

The true believers have time to manufacture innocence claims (Glossip) and a friendly press doesn't ask hard questions.

Your side cries wolf way too often, and it drowns out legit claims of innocence.

Posted by: federalist | Apr 14, 2017 10:41:37 AM

I guess the way to defeat conservatives/libertarians in various instances is to agree with them. The National Review promoting the case here.

Look! A squirrel!!!!

Posted by: Joe | Apr 14, 2017 10:58:06 AM

ETA: Again, the coverage focuses on doubt on the evidence of guilt. While it would be useful, and maybe somewhere it was offered, an alternative theory of the crime is not necessary. And, conservatives/libertarians in this specific case [like liberals sometimes in specific cases joined with their causes] also are doubtful.

The fact federalist is suspicious is duly noted. Likewise, in another case, a liberal minded sort would be suspicious if it was argued (with across the board support) that a claim of racism was unfounded even though the person making it seems trustworthy or whatever. We can move past that and focus on the specifics.

Posted by: Joe | Apr 14, 2017 11:02:20 AM

Fed: Your above statement has a lot of common sense. Why would a stranger kill a person, and not profit from it?

Posted by: David Behar | Apr 14, 2017 11:59:55 AM

Cal. Prosecutor: is there an affirmative misstatement in when Prof Drinan wrote, or are you just asserting that this advocate should have made the case for the other side? I am eager to avoid reprinting any blatant misstatement, but I am not sure I see what fits that description here.

Posted by: Doug B. | Apr 14, 2017 1:51:58 PM

The Fourth Circuit analyzed the "other murder" issue. Apparently, the evidence at trial did not show that Teleguz was involved in the other murder but rather that he was present when threats were made and about a week later somebody was killed. The witness's testimony was either ambiguous about the location of the murder or was mistaken as the murder. The threats took place in one location. The witness's testimony suggests that the murder took place in the same location. The evidence at the federal habeas hearing showed that the murder took place at a different location in a nearby town and that Teleguz was connected to that murder. So the claim that the alleged murder did not happen is wrong; it happened but at a different location than described by the witness (who while he witnessed the threats was merely relaying hearsay about the murder). As such, the claim that the other murder did not happen and everybody agrees that it did not happen is misleading at best.

Posted by: tmm | Apr 14, 2017 1:55:45 PM

From today's Washington Post:

"Gilkes, one of the men Teleguz allegedly asked to kill Sipe, confessed that, as a part of his testimony, he had fabricated a prior murder said to have occurred in Ephrata, Pa., and pinned it on Teleguz. The prosecution then used this testimony to paint Teleguz as a dangerous man to convince the jury to sentence Teleguz to death. Since Gilkes’s retraction, both federal law enforcement and a senior assistant attorney general have confirmed there is no evidence the Ephrata murder ever occurred."


Posted by: CHD | Apr 14, 2017 2:04:16 PM

Prof. B,

Could we start with the title of the post?

Reading the 4th Circuit opinion shows that none of Drinan's claims hold water. I expect her kind of snake-oil peddling from the anti-DP crowd, but that does not mean you have to fall over that cliff. One of the primary reasons I read your blog daily is because I have found you to be a thoughtful advocate for your positions and not a shrill zealot, willing to obfuscate, if not flat out lie. Even a brief mention of the findings by the 4th would have served that purpose. Does someone "recant" court testimony by a mere affidavit (let alone one done over the phone across the ocean)? "The Commonwealth repeatedly told the third witness..." when the District Judge hearing the matter found otherwise? The IAC issue? Appeals don't deal with "guilt or innocence"?

I quoted the OSU motto at you because I want to be educated by your pieces, not rendered insensible by extremists who far-too-often ignore anything contrary to their claims of "innocence". We have far too much of that going on from both sides of the political spectrum.

Posted by: Cal. Prosecutor | Apr 14, 2017 3:28:39 PM

Civilized world lives well and safely without capital punishment and the peril to kill an innocent person.
Il resto son cazzate.

Posted by: Claudio Giusti | Apr 14, 2017 3:40:13 PM

The title of this post, Cal. Prosecutor, is a direct quote of the title of the Prof. Drinan's commentary. When I feel like the title of a piece that I have decided to spotlight captures its essence effectively and provocatively, I often use the title (in quotes) as my post title. Doing so is not meant as an endorsement of that title, as I hope you and others understand. For example, the post just prior to this one quotes the title of a Cato commentary, "Four Decades and Counting: The Continued Failure of the War on Drugs," which I am certain Bill Otis and many others could describe as reflecting a certain kind of zealotry.

I do not think simply reporting/reprinting a commentary from a widely-read publication (HuffPo) authored by a tenured lawprof amounts to "falling over a cliff." I get that you see Prof Drinan as an anti-DP extremist based on this commentary, but I did not extensively dig into the case before posting this commentary because I know of Prof Drinan's work on other matters and her writings generally do not strike me as extreme or shrill or lies.

That all said, I very much appreciate the push back here so that I make sure I do not fall over any cliffs, and I especially see the value of adding a link to the Fourth Circuit opinion in order to allow readers to get another perspective on the case. And so I will.

Posted by: Doug B | Apr 14, 2017 4:02:50 PM

"...or are you just asserting that this advocate should have made the case for the other side?"

This subject has been reviewed many times. David Duke, former head of the KKK, hates Jews and blacks. He does not lie about them on his web site. He selects news stories that make them look bad. He should be considered a liar by that biased selection, by his repeated violation of the exception fallacy, by his not providing the other side of the story.

Journalists have a Code of Ethics duty to provide both sides of each story. When they fail to do so, the defamation should be per se since they are violating their own rule. That makes the NY Times, NPR, HuffPost equivalent in credibility to the David Duke web site, a hate speech, false propaganda outlet.

I believe all college professors or even kindergarten teachers should be neutral transmitters of information on a subject. Indoctrination by biased propaganda is a rip off of tuition fees, and should be seen as a tort of fraud. Professors who fail to present both sides are advocates, and should clearly label their utterances as such. Otherwise, the use of the title, Professor, is misleading, since the expectation is one of complete presentation of all sides of a subject. The author called herself a professor of law. David Duke is honest. She is not.

Posted by: David Behar | Apr 14, 2017 11:18:00 PM

Virginia has had a disgusting history for at least the past 25 years in sending innocent people to death row because unscrupulous prosecutors and states Attorneys General like Mary Terry who served as a nominal Democrat chose to suppress evidence that would have proven innocence of clients. Her decision to suppress evidence is an admission of the defendant's innocence and that crooked politicians like her have something to hide. People like her who knowing lie under oath and suppress exculpatory evidence shows felonious obstruction of justice. Ms. Terry and others of her ilk belong in prison for a good long time and should have to pay massive restitution to the innocent people they have knowingly railroaded. In the case of one defendant in 1990 (a Getano, I believe)came close to execution. The only thing that spared his life was when Governor Wilder, the nation's first black governor, commuted his sentence to life imprisonment. (Virginia did not allow its governors, at least back then, to free the wrongfully convicted). The fact that Ms. Terry called herself a Democrat makes her behavior all the more repugnant. It's bad enough when a Republican does that, but at least one can expect that type of crap from a Tea-Party Republican. But for a nominally Democrat to do that is totally unacceptable.

Posted by: wiliam r. delzell | Apr 15, 2017 3:47:40 PM

tmm's comment is appreciated but find it a bit interesting various qualifiers like "apparently" are included. The details seem a bit hazy.

In various cases, the question of doubt on the facts simply isn't really a strong argument to use. Here, and the mixture of the support to block the execution to me is notable, it does seem appropriate to highlight that fact.

This is not one of those clear-cut cases where taking a life, if you support the death penalty, should be done.

Posted by: Joe | Apr 16, 2017 12:22:19 PM

Joe, as someone who has handled multiple appellate cases, I do not fully trust any opinion's recitation of the evidence. Courts get to choose what part of the facts of the case they wish to emphasize in their opinions and different people reading the full record may come to a different conclusion. Not having the full record, I can only say what appears to have happened based on the opinion.

Posted by: tmm | Apr 16, 2017 7:09:42 PM

Joe, as someone who has handled multiple appellate cases, I do not fully trust any opinion's recitation of the evidence. Courts get to choose what part of the facts of the case they wish to emphasize in their opinions and different people reading the full record may come to a different conclusion. Not having the full record, I can only say what appears to have happened based on the opinion.

Posted by: tmm | Apr 16, 2017 7:09:43 PM

"Apparently" ... "suggests" ... "either ambiguous"

then ... "evidence at the federal habeas hearing showed" ... no qualifier.

I duly note the comment but am not sure that this agnosticism is consistently shown in tmm comments. But, won't assume to properly judge that from my limited memory there.

Posted by: Joe | Apr 18, 2017 4:16:37 PM

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