Virginia must bolster access to police investigations

House Bill 2004 — modeled on the federal public law — is not only important for crime victims, but for those who have been wrongfully convicted

It has been more than a year since Jason Nixon’s wife, Kate, was killed in the mass shooting at a Virginia Beach municipal building. The Virginia Beach police concluded their investigation, but Nixon still doesn’t know what motivated the shooter or how a mass shooting like that one can be prevented from happening again. That is because the police have denied requests for the investigative files, which is perfectly legal under Virginia law.

Virginia’s Freedom of Information Act (FOIA) allows law enforcement to choose whether to release investigative records. With no other guidance in the law, law enforcement has complete discretion over the decision. By contrast, 32 states and the federal government require police to disclose their files for inactive and closed cases to ensure transparency and accountability in the justice system.

Right now, state lawmakers have an opportunity to change the law and bring Virginia in line with the rest of the country with House Bill 2004. The bill, sponsored by Del. Chris Hurst, passed the House of Delegates and the Senate. Now the different versions must be reconciled during the special session and signed by the governor.

Permitting public access to investigative files is not only important for crime victims such as Nixon, but also for victims of wrongful conviction. Our organizations, the Innocence Project at UVA School of Law and the

Mid-Atlantic Innocence Project (MAIP), investigate claims of wrongful conviction and exonerate the innocent in Virginia, but our work is often hampered by our lack of access to police criminal investigative files.

That is not the case in Maryland, where MAIP has helped free six innocent men in less than two years based in part on evidence obtained through public-record requests to law enforcement agencies. If those men had been convicted in Virginia, all six of them would still be in prison today because there is no way for them to obtain the evidence that led to their freedom.

Nearly four years ago, then-Gov. Terry McAuliffe pardoned four U.S. Navy sailors who were wrongfully convicted. The men who became known as the Norfolk Four — Eric Wilson, Danial Williams, Joseph Dick and Derek Tice — each spent between 11 and 18 years in prison for a rape and murder they did not commit.

Robert Glenn Ford, the detective who coerced false confessions from the men, was convicted in 2010 on federal charges of extortion and lying to the FBI in other cases. Since then, the Innocence Project at UVA School of Law has filed four other wrongful conviction claims in cases involving Ford.

Ford investigated more than

200 homicides in Norfolk and may have sent other innocent people to prison, but the Norfolk Police Department has refused to release files in his cases. That makes it impossible to know the true extent of his misconduct and leaves open the possibility — or likelihood — that there are others who have been harmed by his actions but will never find justice.

HB2004 is also important because it would improve public oversight of police-involved shooting investigations, which are conducted by local law enforcement agencies, state police or both. For communities to have confidence that police are thoroughly investigating excessive use of force, police investigative records must be publicly accessible.

HB2004 is based on a proposal put forward by the Virginia Freedom of Information Council in December. Modeled on the federal public records law, it would presume public access to closed and inactive case records unless there are privacy or safety concerns, or disclosure risks to investigative or legal proceedings.

This legislation is a key step towards the larger goal of transparency, accountability and accuracy in our justice system.

The state has an opportunity to shed light on investigations and enhance public safety by passing HB2004.

Jennifer L. Givens is the director of the Innocence Project at UVA School of Law. Deirdre M. Enright is the director of the Innocence Project at UVA School of Law. Shawn Armbrust is the executive director at Mid-Atlantic Innocence Project.