Virginia eyes new sentences after juries didn't get key fact

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Posted: Dec 31, 2015 12:02 PM
Virginia eyes new sentences after juries didn't get key fact

RICHMOND, Va. (AP) — In 1998, the jury deciding LeMar Jamie Anderson's fate had an important question for the judge: "Do we — in Virginia — have parole?"

The answer was no. Virginia had abolished parole in 1995.

But Anderson's jurors would not learn that from the judge.

"You all have been a wonderful jury; and I hate to tell you this, but I can't answer" your question, the judge responded. "I apologize, but that's the law."

Nearly 20 years later, those words still haunt Anderson, who believes that he and perhaps hundreds of other Virginia inmates were unfairly punished because their juries were kept in the dark.

Virginia was among more than a dozen states to abolish parole in the 1990s amid a national push to crack down on crime. Virginia also lengthened sentences for some violent offenders and mandated that anyone convicted in 1995 and beyond must serve at least 85 percent of their term.

But while Virginia took parole off the table in 1995, judges weren't required to inform juries about that change until 2000.

As a result, uninformed jurors during those five years gave some offenders inflated sentences, thinking they'd serve just part of their prison term before being paroled, advocates and attorneys say. Virginia is one of just a handful of states where juries decide on a sentence as well as guilt or innocence in non-death penalty cases.

Now, Gov. Terry McAuliffe's administration and advocates hope to give those inmates a second chance.

"We have got to get this right. We need justice," said Lillie Branch-Kennedy, founder and executive director of the Resource Information Help for the Disadvantaged, a nonprofit group that advocates for inmates and their families.

When Anderson was 22, he and two other men attacked the Virginia Beach town home of a rival drug dealer, according to court documents and news reports. Nathaniel Brown Jr., 19, was killed and his girlfriend and her 16-year-old brother were wounded.

The jury sentenced Anderson to 132 years in prison for first-degree murder, robbery, malicious wounding and other charges. Despite having a lengthy previous criminal record, Anderson maintains that his sentence would have been lower had the jurors known parole wasn't an option.

"It's not really about innocence or guilt. It's about me receiving a just sentence for my actions," the 40-year-old said from the River North Correctional Center.

Until a state Supreme Court ruling in 2000, it wasn't clear what Virginia juries should be told. While some judges agreed to inform juries that the state did away with parole, many courts refused to do so.

In 1997, the Virginia Court of Appeals upheld the 43-year first-degree murder sentence of Marvin Leroy Mosby, who claimed he was unfairly punished because his jurors weren't instructed about the abolition of parole. The appeals court said it was up to the General Assembly to address the issue.

Thomas Tignor, a juror on Mosby's case, told The Associated Press at the time that the jury probably would have recommended a shorter sentence had it known there was no more parole.

"We had read in the paper that they were talking about abolishing parole but nobody knew for sure whether it had actually gone into effect. Some of them wanted to recommend 20 years but we thought if parole was in effect he might get out in five years," Tignor told the AP.

The state Supreme Court later ruled that it "simply defies reason" not to give jurors the information. The court said Richard David Fishback, who appealed his 18-year prison sentence, could be resentenced, but its ruling applied only to future cases and those under appeal — not sentences already imposed.

Branch-Kennedy and other advocates now want state lawmakers to consider allowing inmates who were sentenced by juries between 1995 and 2000 to get a new sentencing opportunity.

Brian Moran, secretary of Public Safety and Homeland Security, says the administration is committed to addressing the issue, but he questions the logistics of resentencing what could be hundreds of inmates. The administration is crafting legislation that would instead make those inmates eligible for parole, Moran said.

"It's strictly a matter of fairness," said Moran, who said he learned about the issue while leading the Governor's Commission on Parole Review this fall. "I'm certainly glad it came to the forefront as a result of the governor's commission and we're going to take action," Moran said.

It's unclear how many inmates would be affected by such legislation.

Nearly 500 people who were sentenced by a jury between 1995 and 2000 received a prison term of more than 20 years and likely remain incarcerated, said Meredith Farrar-Owens, director of the Virginia Sentencing Commission. It's unknown how many were sentenced by jurors who believed Virginia still had parole.

Any such proposal would likely face tough scrutiny in Virginia's conservative General Assembly, where criminal justice reform efforts are often portrayed during political campaigns as "being soft on crime," said criminal defense attorney Steven Benjamin.

But Anderson still hopes one day to get a second chance he says he deserves.

"Ever since Fishback was decided, I've been hopeful, just praying on it and waiting my opportunity, trusting that something with happen for me," he said.

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Follow Alanna Durkin on Twitter at twitter.com/aedurkin. Her work can be found at http://bigstory.ap.org/author/alanna-durkin.