September 29, 2012
McDonnell's desk: Governor gets clemency plea in Crozet killings
By: Courteney Stuart
A little over a year after a man convicted in the 2003 slayings of a Crozet mother and son went public with his allegations that police put an innocent man in prison, the attorney for the allegedly innocent man has filed a petition asking for clemency or full pardon and remains hopeful that Governor Robert McDonnell will free his client.
"I think this is an extremely strong clemency petition," says attorney Steve Rosenfield, who's representing Robert P. Davis and who says his client made a false confession after a grueling six-hour, middle-of-the-night interrogation by Albemarle County police at the time of the crime.
As previously reported in the Hook, a then-18-year-old Davis was implicated by teenaged siblings, 19-year-old Rocky and 15-year-old Jessica Fugett, both of whom admitted their own involvement in the stabbing death of their 41-year-old neighbor, Nola Annette Charles, and the subsequent arson that killed Charles' three-year-old son, William.
During their interrogations, both Fugetts claimed fellow Western Albemarle High School student Davis was an accomplice. Unlike another teenager fingered by Jessica Fugett, who maintained his innocence during police questioning and who was ultimately cleared after he presented an allegedly airtight alibi, Davis eventually admitted to involvement after an hours-long interrogation in which he first asserted his innocence 78 times before asking, "What do I have to say to get out of this?"
According to a nationally recognized expert on false confessions, who's penned a letter in support of Davis' clemency petition, Davis' confession "may be unreliable, and certainly seems to be the result of improper interrogation procedures." Officers pressured the then-18-year-old, allegedly exhausted and suffering from asthma, and– in a previously unreported new detail– informed him that his mother may suffer consequences if he failed to admit involvement.
According to the letter from Joseph Buckley, author of Criminal Interrogations and Confessions, a leading textbook on proper police interrogation techniques, Albemarle officers engaged in numerous tactics likely to elicit a false confession. Even after he confessed, Buckley points out, Davis told police it wasn't true.
According to Buckley's letter, Davis asks police, "Do you think by me telling this I'm going to get to go home tonight? Today?"
"Tonight? Today? I doubt it," the officer responds.
"Today, you doubt it?" Davis asks.
"No. You'll see a judge Monday," the officer tells him.
"Then why am I lying to you about all of this just so I can go home?" the teenager asks.
"You're not lying," the officer says.
"I am lying to you," Davis responds. "I'm lying to you full fledged, full front to your face. I am lying to you."
Also supporting Davis' clemency petition is the Center on Wrongful Convictions of Youth at Northwestern University School of Law in Chicago, which has submitted a 64-page report outlining ways in which Albemarle police may have broken protocol to elicit a confession.
"Robert repeatedly had to ask police what to say," the report states as one example. "When they did not feed him information about the crime, he was unable to accurately describe how the crime occurred."
Davis' confession provided much of the basis for his conviction, but eight years after both he and the Fugett siblings were convicted, Rocky Fugett, serving a 75-year sentence, recanted his original statement describing the crime. In a sworn affidavit taken August 25, 2010, Fugett claimed he'd lied during interrogation when he implicated Davis.
"When I was arrested and pounded with questions, I figured that if I passed the blame on to others, it would deflect blame from me," Fugett states in the affidavit. "The more I kept talking to police, the more I kept blaming Robert Davis," he continues in the statement, referring to his "history of fighting" with Davis.
Subsequent guilt over his implication of a "completely innocent person" prompted the recantation, Fugett states, and "causes me unspeakable nightmares and sick feelings."
A special prosecutor appointed by Judge Cheryl Higgins in the wake of Fugett's recantation has decided against pursuing any additional charges in the case.
"Given the questionable credibility of Rocky Fugett and the number of contradictory statements that he has made regarding this crime over the years, I do not see any way to bring charges against anyone based solely on his statement," writes the prosecutor, Fluvanna County Commonwealth's Attorney Jeff Haislip, who also cites the alleged consistency of Jessica Fugett's testimony in which she has maintained that Robert Davis was involved.
Haislip's letter, however, makes no mention of Jessica Fugett's constantly changing story, the night of her arrest, in which she implicated other teenagers who were later cleared.
"I kept my focus on what the court ordered me to do," says Haislip, adding that the consistency he mentions in his May 4 letter was only referring to Jessica Fugett's statements about Davis.
Although Haislip discounted Rocky Fugett's claims, Rosenfield says Haislip's unwillingness to prosecute others shouldn't undermine the clemency petition submitted on behalf of Davis.
Rosenfield points out that Haislip was "evaluating Rocky Fugett for purposes of credibility to convince a jury beyond a reasonable doubt."
In a clemency petition, there is no such standard– it's simply the Governor's judgment.
Rosenfield says he mailed the petition on September 25, but there's no guarantee or requirement that the Governor will respond quickly.
"Tim Kaine took four years on the Norfolk Four, who all had falsely confessed," says Rosenfield, referring to the four Navy veterans who spent 11 years behind bars for a wrongful rape conviction until then-Governor Kaine ordered their release in 2009.
Already, Davis, now in his late 20s, has spent nearly a decade behind bars, and Rosenfield hopes he won't have to serve out the full 23 years he received after entering an Alford Plea, in which he maintained his innocence but acknowledged the Commonwealth had enough evidence– in the form of his confession and both Fugetts' threatened testimony– to convict.
"He's an innocent man," says Rosenfield. "He shouldn't be behind bars."