News & Events
Posted Aug. 16, 2011

UVA Law Innocence Project, Child Advocacy Clinics Fight to Clear Teen Convicted of Rape

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Innocence Clinic

Innocence Project Clinic directors Matthew Engle and Deirdre Enright, above left, with students from last year's clinic.

It took less than an hour in juvenile court to convict a Stafford County, Va., teen of rape at age 15. But it has taken years of effort by the youth, his family, two legal clinics at the University of Virginia School of Law and a large team of lawyers to try to clear his name — even after the alleged victim recanted her story soon after his conviction in 2007.

"It doesn't take long to push a kid into a deep legal hole, but it can take years and thousands of man and woman hours to get him out," said Child Advocacy Clinic Director Andrew Block, who has been involved in the case since 2009.

The teen, a client of the Law School’s Innocence Project and Child Advocacy clinics, took a small step toward having his name cleared when the Virginia Supreme Court recently agreed to hear an appeal on whether he can proceed with a lawsuit to have his sentence overturned in a Stafford County Circuit Court. (Petition for Appeal)

The teen's lawyers, who argue that he is innocent, say he received ineffective counsel and that his conviction should be overturned. Students involved in the case say it has provided both valuable practical experience and insight into a flawed juvenile justice system that has marred the life of an innocent teenager. They also hope they can remedy one of the most damaging effects of their client's conviction — being included on the Virginia State Police Sex Offender Registry.

Although the Virginia Supreme Court is focusing on a jurisdictional question in the case, it is a hopeful sign that the court took the unusual step of bypassing a typical stage of the appeal, said Matthew Engle, legal director of the Innocence Project Clinic.

Block

Andrew Block Jr.

"This is a discretionary appeal — the Supreme Court didn't have to hear this case at all. The normal process is to file the appeal and then appear before a writ panel to argue why it's worthy of review," Engle said. A week before the date of that hearing, Engle received a call saying the court decided to review the case based solely on the briefs.

A Family’s Plea

Innocence Project Clinic Director of Investigation Deirdre Enright was in her classroom going through the mail when she opened a letter from a desperate mother who claimed her teenage son was wrongly imprisoned after being falsely accused of rape. (The teen's name is being withheld to protect his privacy.)

The clinic receives many such entreaties from prison inmates and their family members, but something about this one was different.

“I turned around to the students at the table and I said, ‘If half of what is in this letter is true, we need to represent this kid,’” Enright recalled.

Cherri Dulaney wrote that her son had been arrested on the strength of a 14-year-old girl’s accusation, and that he was steered into a guilty plea by prosecutors who threatened to try him in adult court.

After the teen was convicted and sent to a juvenile correctional center, the alleged victim recanted her story and told her mother she’d made it up out of fear of getting in trouble. Both the boy and girl have IQs in the lowest 5 percent to 10 percent of the population, according to court filings.

When Enright opened the letter in December 2008, the teen had been in a juvenile prison for more than a year. Despite cooperation from the alleged victim — including a written recantation — his family’s efforts to have the conviction overturned had been rebuffed.

“I thought it was going to be something as simple as going back into the court and saying, ‘Here, this is what happened.’ But it didn’t happen,” Dulaney said.

After several months of work by the Innocence Project and Child Advocacy clinics, the teen returned home after being released early.

The students involved with the case at the time said it offered both valuable real-world experience and an eye-opening look at how difficult it is to rescue an innocent teenager from a criminal justice system that failed him.

For the boy and his family, who were frustrated by their experiences with other lawyers, the Law School students may have helped restore some faith in the legal profession.

“They get an A-plus,” the teen said of the clinic students.

A Rape Charge

The trouble began on June 3, 2007, when the boy and his brother were playing basketball in their Stafford County neighborhood and encountered a 14-year-old girl, according to James Cass ’09, a former Innocence Project Clinic student who worked on the case.

“She asked our client if [he] would like something to drink. He accepted and they went into her house,” Cass said in 2009.

Later, the girl’s mother returned home and found the boy in the kitchen, Cass said. He left the house while the mother went upstairs and found her daughter. Fearful of her mother’s anger, the girl accused him of raping her and they called 911, Cass said. The police arrested the accused as he walked home.

The Recantation

Based on what the girl told her mother, prosecutors believed they had evidence that the boy had broken into the house and raped her, Block said. Block and the clinic joined the case at Enright’s behest and involved his clinic students.

In August 2007, the boy pleaded guilty to rape and breaking and entering charges in Juvenile and Domestic Relations Court. In return, authorities dropped an additional charge of abduction. He was sentenced to serve time in a juvenile correctional center and was placed on the sex offender registry for life.

“However, not long after he was sentenced, [the alleged victim] told her mother that the sex had been consensual and that she had fabricated much of the story because she was afraid of getting in trouble with her parents and getting punished,” Block said.

Even after the girl provided a written recantation, nothing seemed to happen with the case and the prosecutor maintained that he was guilty. After hiring another lawyer, who unsuccessfully tried to get their son’s conviction overturned, the Dulaneys were increasingly desperate.

“Every time we would leave the courtroom, I was really, really frustrated,” said Edgar Dulaney, the boy's father. 

Disheartened and running low on resources, Edgar and Cherri Dulaney discovered the Law School’s Innocence Project Clinic during an Internet search, and Cherri Dulaney wrote the letter that would capture Enright’s attention and get the law students involved.

“Deirdre took hold of it, and didn’t let go. She and the people she had with her,” Edgar Dulaney said.

Law in the Real World

For the law students who became involved, the case provided both a chance to do much-needed work for a client in dire straits and an opportunity to hone legal skills and gain practical experience. Over the years they have also teamed up with lawyers working pro bono with Richmond law firm McGuireWoods, including 2005 Law School graduate Jeremy Byrum, and attorneys from the Legal Aid Justice Center's JustChildren Program in Charlottesville, including its director, 2003 Law School graduate Angela Ciolfi.

Eight students in the past semester alone have worked on the case, Block said, and "it will likely take years more of student involvement before this gets resolved."

Rising third-year law student Cindy Kung began working on the case last year and helped write the brief to the Supreme Court.

"There's something about meeting [the teen] — things start clicking. You realize this could be you or me," she said. "I learned a lot about the criminal justice system and I learned a lot about the gratifying feeling of helping someone who really needs it. Being able to provide that is really wonderful."

Kung said the hands-on experience of working on real cases has been instrumental in her legal education and development as a lawyer. She plans to continue to work on innocence cases in her final year in law school and later pro bono as an attorney.

"I'm learning black-letter law in all my other classes from a textbook and not actually seeing it," she said. "Working on this case, writing briefs to courts — it's obviously much more real when you're waiting for a real court's decision on your real case. It's just invaluable experience."

Block said having a team of bright and motivated students working on the case has resulted in more work being done than would have been possible had the family gone with private representation.

“It has been an amazing opportunity for the students in both the Child Advocacy Clinic and the Innocence Clinic to dig into a compelling case where we were the last hope for the client, where his case exemplified so many problems with the system,” he said.

“They got to learn what it feels like to have someone’s future literally in their hands, and dependent on the work that they do. They got to see how one child’s plight and tragedy is connected to all these other policy decisions that we’ve made as a country and as a commonwealth.”

When asked about his case and his time in the facility soon after his release, the teen said he was grateful for their efforts.

“They actually tried and cared,” he said. “The [other lawyers] didn’t care. They just said things, they didn’t do anything.”

A Long Appeal

In August 2009, the team of lawyers filed a lawsuit against the Department of Juvenile Justice with the aim of overturning his conviction and removing his name from the registry.

The suit claims that the teen received inadequate legal counsel. The boy's first attorney only asked for the minimum required fee for representation — $120 at the time — which suggests she only spent an hour on the case, Block said.

"An hour of work, and then he spends 18 months in a juvenile detention facility, goes on parole, is on the sex offender registry for life," Engle said.

At issue in the current appeal before the Supreme Court is whether Stafford County Circuit Court, which dismissed his case, has jurisdiction to hear the youth's writ of habeas corpus.

"We never even got to the merits of the claim," Engle said.

A Stafford County judge agreed with the Virginia Attorney General Ken Cuccinelli opinion that the teen did not have jurisdictional standing to file an appeal because he was not in custody by the time the case was heard.

"If allowed to stand, this decision will make it much harder for all defendants, but particularly juvenile defendants who are much less sophisticated and have shorter sentences and parole periods than adults, to protect their right to overturn a constitutionally flawed adjudication," Block said. Engle said juveniles are frequently sentenced to indeterminate sentences, so the length of custody is unclear.

"To force juveniles to not only get in the door with their petitions by a certain date, but to be able to do all the briefing, have a hearing, allow the judge time to adjudicate it and fully resolve their petition before some deadline that they don't even know what it is would really close the door for a lot of kids," he said. "Ironically, it would make our least serious offenders the least protected, because if you serve your time and are out, then the door is forever closed to you."

Only One Direction

Following the teen's release in 2009, he graduated from high school, where he was a track star. But since graduating, the effects of being on the sex offender registry have become all too clear, as he has struggled to find a job.

"He's talked about going back to school," Enright said. "The times I have seen him since this he has been at home playing basketball or writing rap songs."

Virginia has one of the harshest sex offender registry laws, with no opportunity to get off it without having a sentence vacated, the lawyers said.

“At age 15, he was up on the sex offender website. And there was his name and his face and his address,” Block said. “And that’s information that he’s going to be forced to disclose for the rest of his life. And that will have a real impact on employment, and where he lives, and what kind of education, if any, he receives, and how he is treated by people. It will be an ongoing nightmare that will only exacerbate what he’s had to live through already.”

Enright told the story of how, at one point, the teen's family moved into a townhouse complex. Their neighbor's daughter accused the teen's brother of rape, Enright said. After Cherri Dulaney showed police that her other son was on the registry, and not his brother, police confronted the accuser, who admitted to making up the story because the family didn't want to live next to a sex offender. The Dulaneys and their children ended up moving.

Enright said she had never heard of someone being removed from the sex offender list, juvenile or adult.

"There's only one direction on the sex offender registry — it's on," Enright said. "No circuit has held that being on the registry is a collateral consequence sufficient to give the court jurisdiction to get that removed from your sentence. It's just an 'administrative collateral consequence.' It's not penal."

If what state prosecutors and the attorney general argue is true — that the teen cannot sue to have his conviction removed from his record because the court has no jurisdiction following his release from the parole system — then there is no mechanism for juveniles to clear their names or be removed from the sex offender registry, Enright said.

If the Virginia Supreme Court agrees that the circuit court has jurisdiction, the teen could have a chance to clear his name and apply to the Virginia State Police to be removed from the registry. The case may be heard by the court as early as November or as late as February.

"I think we have a very good chance to win" at the Supreme Court, Engle said.

Clinic student Kung said two other cases at the circuit court level with similar facts regarding jurisdiction were decided differently.  

A number of children's rights organizations signed onto an amicus brief in support of the Supreme Court appeal, Block said, and the brief points out troubling facts about Virginia's system. The state has the lowest-paid court-appointed attorneys in the country, and is one of only a handful with juvenile courts that don't track hearings through transcripts.

"The combination of the lack of record and the low attorneys' fees can all too often lead to a less-than-stellar, and even nightmarish, outcome for youth the court was intended to serve," Block said.

Enright said Virginia's juvenile system was formed with good intentions.

"Everyone was envisioning that juvenile courts would be warm and fuzzy: We're not going to have all these stenographers, we're going to have these caring adults and caring children, and we're going to all hug and think of the right thing to do — and of course that very same system of no record that was supposed to protect juveniles is now harming them," she said.

Enright said the length of time required to overturn a rape conviction with a clear recantation in hand is disheartening.

"It's absurd. At the center of it are these two mothers and two children, and the four of them are all in step that this mistake happened," Enright said. "We can't seem for the life of us to fix this thing. How often does it happen that those four people come together, but no one else will listen to them?"

For their part, Edgar and Cherri Dulaney said they think their son would have been locked up for much longer if it weren’t for the work the two clinics and the team of attorneys did on their case.

“After dealing with the Innocence Project, we are more relieved,” Cherri Dulaney said. “We have more faith, when we had none. We have a glimmer of hope we didn’t have before. We had nothing.”

Reported by Rob Seal and Mary Wood