ARTHUR KELSEY, JUSTICE.
PETITION FOR A WRIT OF ACTUAL INNOCENCE
1970, a jury found Sherman Brown guilty of first-degree
murder of a four-year-old child. The child's mother
("M.B.") testified that, after she rejected
Brown's demand for sex, he knocked her unconscious, and
upon awaking, she discovered that she had been repeatedly
stabbed. While she was unconscious, her four-year-old son had
been stabbed to death. Brown did not testify at his trial or
proffer any evidence suggesting that someone else committed
2017, Brown filed a petition seeking a writ of actual
innocence pursuant to Code §§ 19.2-327.1 to -327.6,
which govern writs of actual innocence based on biological
evidence. Brown asserts under oath that he is "actually
innocent" of the crime, Code § 19.2-327.3(A)(ii),
and that recent DNA testing by a private laboratory, Bode
Cellmark Forensics ("Bode"), conclusively
exonerates him with "clear and convincing evidence"
such that "no rational trier of fact would have found
proof of guilt . . . beyond a reasonable doubt, " Code
§ 19.2-327.5. Reviewing this case under our original
jurisdiction, we dismiss Brown's petition for two
the governing statutes limit our review of allegedly
exculpatory biological evidence to the findings of the
Commonwealth's Department of Forensic Science
("DFS"). DFS analyzed a vaginal smear slide
presented by Brown and was unable to identify sufficient
amounts of DNA in order to render any conclusion as to
whether Brown could be included or excluded as a contributor
to the DNA on the slide. The findings of DFS, therefore, do
not support Brown's claim of actual innocence.
even if we were authorized to consider the private
laboratory's results obtained by Brown, he would still
have the burden of proving that the evidence submitted to us
in this writ proceeding - DNA test results from the Bode
laboratory, the factual proffers in Brown's petition, the
post-trial evidence presented in the Commonwealth's
response, and the evidence presented at the original trial -
provide, in the aggregate, clear-and-convincing proof that
"no rational trier of fact would have found proof of
guilt . . . beyond a reasonable doubt." Id. We
find this evidence falls far short of satisfying this
clear-and-convincing statutory standard of proof.
analysis begins with a restatement of first principles. We
have no common-law authority to grant what amounts to a
judicial pardon - that is, to set free a convict lawfully
found guilty by a jury - based upon his later protestation
that he was in fact innocent. Under English common law, as
relevant today as it was at the Founding,  "the power
to exercise executive clemency lay within the prerogative of
the crown, " Gallagher v. Commonwealth, 284 Va.
444, 450, 732 S.E.2d 22, 25 (2012), and "[t]here simply
was no such thing as a judicial pardon, " Taylor v.
Commonwealth, 58 Va.App. 435, 445, 710 S.E.2d 518, 523
(2011). The "traditional remedy for claims of innocence
based on new evidence, discovered too late in the day to file
a new trial motion, has been executive clemency."
Herrera v. Collins, 506 U.S. 390, 417 (1993).
common law, however, always remains subject to the sovereign
power of citizens to amend our Constitution and the power of
their representatives to enact statutes in derogation of the
common law. In 2002, Virginians did just that when they
amended the Constitution of Virginia to vest this Court with
"original jurisdiction . . . to consider claims of
actual innocence presented by convicted felons." Va.
Const. art. VI, § 1. That newly granted judicial power,
however, is limited. It can only be exercised "in
such cases and in such manner as may be
provided by the General Assembly." Id.
convict seeks exoneration outside of these statutory
boundaries, he may obtain it only from the Governor of
Virginia, who is vested with the power of executive clemency.
See generally Blount v. Clarke, 291 Va. 198, 204-05,
782 S.E.2d 152, 155 (2016). The opportunity to seek executive
clemency serves the dual goals of defining the limited scope
of the judicial role while providing a fail safe for claims
of innocence that fall outside of the statutory writ
procedure. See Herrera, 506 U.S. at 415
("Executive clemency has provided the 'fail
safe' in our criminal justice system.").
Compare, e.g., Governor Timothy M. Kaine, List of
Pardons, Commutations, Reprieves and Other Forms of Clemency,
S. Doc. No. 2, at 22 (2010) (granting absolute pardon to
Arthur Lee Whitfield), with, e.g., In Re:
Whitfield, Record Nos. 042086 and 042087, slip op. at 4
(Va. Oct. 21, 2005) (unpublished) (dismissing Whitfield's
petitions for writs of actual innocence because the Court did
"not have the statutory authority to consider
these reasons, we limit our analysis to the actual-innocence
statutes applicable to petitions asserting newly discovered
or previously untested biological evidence. Implementing the
authority established by Article VI, Section 1 of the
Constitution of Virginia, Code § 19.2-327.2 vests the
Court with "the authority to issue writs of actual
innocence" based upon biological evidence. In exercising
this authority, we must base our determination upon "the
petition, the response by the Commonwealth, previous records
of the case, the record of any hearing held under [Chapter
19.2] and the record of hearings held pursuant to [Code]
§ 19.2-327.1 [the testing statute], and if applicable,
any findings certified from the circuit court" pursuant
to a remand order from this Court. Code § 19.2-327.5.
settled principles, we may also take into account factual
matters properly within the scope of judicial notice.
See Va. R. Evid. 2:201(a). These facts include those
"not subject to reasonable dispute in that [they are]
either (1) common knowledge or (2) capable of accurate and
ready determination by resort to sources whose accuracy
cannot reasonably be questioned." Id. See
generally Charles E. Friend & Kent Sinclair, The Law
of Evidence in Virginia § 3-2 at 174-88 (7th ed. 2012
& Supp. 2017); Kent Sinclair et al., A Guide to the Rules
of Evidence in Virginia 13-14 (2017-2018 ed.).
incorporate all of these sources into our review of the
relevant facts and our application of the statutory criteria
to this case.
Evidence at the 1970 Trial
record before us begins with the evidence presented by the
Commonwealth at Brown's 1970 jury trial. Witnesses
established that M.B. was at home on October 1, 1969, with
her two young children, a two-year-old and a four-year-old.
After lunch, M.B. put the two-year- old in his crib for a
nap. M.B. then put on a nightgown, read to her four-year-old
in bed, and then turned off the light to join him for an
afternoon nap. Before either of them fell asleep, M.B.'s
father arrived for a visit.
her father's visit, M.B. received a phone call from
Brown. He repeatedly asked her if he could come
over to her home to talk. She said no each time and was
unnerved by his persistent requests. After her father left,
M.B. and the four-year-old returned to the bedroom intending
to take the planned nap. Just as M.B. started to untie her
robe, she heard the front gate of the fence in front of her
residence swing open. She looked out the window, saw no one,
and walked to the front door with the four-year-old. When she
cracked the front door slightly open, she saw Brown through
an exterior screen door. He asked to come inside. She said
no. He insisted, but she continued to refuse his request.
still standing outside, Brown asked M.B. if she would get him
a cup of water. She walked to her kitchen to fetch a paper
cup of water, and when she returned, Brown had opened the
screen door and stepped into the home. She was upset to see
him inside the home, but she handed him the cup of water
anyway. Brown continued to insist that he wanted to talk to
her and even asked her to give him a tour of her home, but
she continued to refuse each of his requests. At one point,
she "thought that [she] smelled alcohol on his breath,
" and she "asked him if he had been drinking,
" which he denied. Trial Tr. at 167. Eventually, Brown
abruptly asked her, "Will you have sex with me?"
Id. at 162. Now "terrified, " M.B.
replied, "Of course not." Id. After Brown
asked her why she would not have sex with him, M.B. answered
that she was married, that Brown was not her husband, and
that Brown should leave. M.B.'s four-year-old was also in
the room with them at the time, and M.B. indicated that
"little ears were listening" when she requested
that Brown leave. Brown finally declared, "I'm so
sexed up I don't know what to do." Id.
"I'm sorry, " M.B. responded, "you will
have to go somewhere else. I'm not available."
next memory was "pitching forward" after
"receiving very painful blows" to her side, which
rendered her unconscious. Id. at 163. When she
awoke, she was unable to move. Her sister-in-law arrived
later that afternoon and found M.B. on the floor in a pool of
blood. After she discovered that M.B.'s phone was hanging
from its wires with its receiver broken in half, the
sister-in-law drove to a neighbor's home to ask them to
call both the rescue squad and her husband, who could pick up
M.B.'s husband from his job. M.B.'s sister-in-law
returned to M.B.'s home and found the two-year-old
unharmed in his crib, but she discovered the four-year-old
lying face down on a bloody bed. When the rescue squad
arrived, they discovered that M.B. had been stabbed multiple
times and still had a knife blade without its handle lodged
in her chest. Her underwear had been taken off and were on
the floor nearby. The medical examiner later declared the
four-year-old dead from repeated stab wounds.
was taken to the hospital for emergency surgery. She had
suffered knife wounds to her chest, lower back, and abdomen
and had open scalp lacerations from what the surgeon assumed
were "blow[s]" to her head. Id. at 119.
One of the stab wounds went 12 to 14 inches through her
abdominal wall and into her liver and spleen. The child
victim was transported to the morgue. He had suffered two
stab wounds piercing his heart, four lacerations to his scalp
exposing his skull, stab wounds to his left lung and right
wrist, and multiple contusions to his forehead, face, arms,
legs, and ears.
Commonwealth charged Brown with a single crime, the murder of
M.B.'s four-year-old son. Witnesses at Brown's trial
established that on the day of the murder, Brown spent the
morning with his brother-in-law, Larry Waller, and
Larry's cousin, William Waller. They drank a fifth of
whiskey together while working on Brown's car and then
drove to Ivy, a town just outside of Charlottesville, for
lunch. At Brown's request, William dropped off Brown and
Larry at Brown's father's house, which was directly
across the road from M.B.'s house. At Brown's
father's house, Larry overheard Brown make a telephone
call. Shortly after that call, Brown and Larry walked across
the road so that Brown could jog in the field on M.B.'s
property in front of her home. After watching Brown jog a few
laps, Larry caught a ride on the school bus after 3:00 p.m.
and left to visit a friend, who was about to get out of
school for the day.
spending about twenty minutes at his friend's house,
Larry returned to his home, in which Brown also lived, at
approximately 4:30 p.m. Larry discovered Brown in his own
bedroom washing up. Brown turned to Larry and simply said,
"I messed up." Id. at 232, 251. Larry did
not know what Brown had meant by that statement, and Brown
did not provide an explanation. Brown went to work that
evening where he was arrested around 6:15 p.m. and then
questioned by police about the murder of M.B.'s
four-year-old son. After reading Miranda warnings to Brown,
see id. at 208, 214, officers drove Brown to
M.B.'s home where an investigator asked him if he had
been on M.B.'s property that day, which Brown denied.
Commonwealth's opening statement at Brown's trial
focused entirely on the only charge against him, the murder
of M.B.'s son. The Commonwealth never once suggested in
its opening statement that Brown raped M.B, and M.B. did not
make that accusation during her testimony. Furthermore, none
of the evidence offered at trial demonstrated vaginal pain,
injury, or trauma, which often accompany rape. Instead, the
Commonwealth's theory of the case was that Brown may have
"attempted to have intercourse with her"
before stabbing and beating her. Id. at 432
(emphasis added). Given the ambiguous circumstantial
evidence, the Commonwealth conceded that whether "he
tried to rape [her] or did rape her[, ] we will never
know." Id. at 402.
closing statement to the jury, Brown's counsel pointed
out that the Commonwealth did not introduce any evidence of
sperm found on Brown or M.B. "You can be certain if they
found [semen]" on the victim, witnesses "would have
been here to testify to it." Id. at 418. That
evidentiary omission, counsel argued to the jury, discounts
any "motive" suggesting that Brown murdered
M.B.'s four-year-old son and attempted to murder M.B. in
order to cover up an actual "rape, " id.
at 417-18, a theory of guilt the Commonwealth never advanced
jury found Brown guilty of first-degree murder of M.B.'s
son and sentenced him to death. On appeal, we affirmed the
death sentence and rejected Brown's challenge to the
finding of guilt. In response to his sufficiency challenge,
we stated that "[a] detailed review of the evidence of
the circumstances surrounding this murder and the evidence
pointing to the defendant's guilt as the murderer leaves
no doubt in our mind that this evidence, viewed in the light
most favorable to the Commonwealth, amply supports the
jury's verdict." Brown v. Commonwealth, 212
Va. 515, 516, 184 S.E.2d 786, 787 (1971), vacated in part
on other grounds, 408 U.S. 940 (1972).
early 1970s, the United States Supreme Court interpreted the
Eighth Amendment to declare capital punishment categorically
unconstitutional. The de facto moratorium began with
Furman v. Georgia, 408 U.S. 238 (1972), a 5-4 per
curium order accompanied by nine separate opinions from each
of the Justices, and ended with Gregg v. Georgia,
428 U.S. 153 (1976), which reinstated, with qualifications,
the constitutionality of the death penalty. During the
moratorium, Brown appealed to the United States Supreme Court
and obtained a summary order reversing our affirmance on
direct appeal "insofar as it leaves undisturbed the
death penalty imposed." Brown, 408 U.S. at 940.
In response, we remanded Brown's case to the trial court
for resentencing. After receiving a jury verdict fixing the
sentence at life imprisonment, the trial court entered a
final order approving the sentence without
Brown Accepts "Full Responsibility"
a parole interview in 1991, Brown stated, "I accept full
responsibility for my crime and I feel sorry for the victim,
but I can't undo what's been done."
Commonwealth's Mot. to Dismiss Ex. 7, at 12 [hereinafter
MTD]; see also id. Ex. 5, at 1 (expressing
"fervent regret and remorse" in a 1985 interview
for the Parole Board's consideration). During an earlier
parole interview in 1984, Brown offered a detailed statement
to the Parole Board explaining how the crimes occurred. After
a bout of "drinking" alcohol and "taking some
LSD, " he approached M.B. at her home knowing that
"she did not want to see him." Id. Ex. 6,
at 1. After M.B. gave water to Brown, "she turned into a
snake." Id. In a later parole interview, he
recalled standing over M.B. with the "knife handle in
his hand." Id. Ex. 7, at 4 (capitalization
recalled feeling like "he was 'tripping' at the
time of the offense." Id. Ex. 6, at 1. Brown
could not specifically recall the acts of stabbing M.B. and
murdering her four-year-old son, but he remembered "that
he had blood all over him and he knew something was
wrong." Id. Brown told the Parole Board in 1991
that he thought "he committed the crimes, stabbed [M.B.]
and killed her 5 y/o son." Id. Ex. 7, at 4
(capitalization omitted). Brown discussed the circumstances
of the crimes because "he now kn[ew] what drugs and
alcohol can do to a person" and because he did not
"want another 4 year old's life taken in vain."
Id. Ex. 6, at 1.
Brown Claims Actual Innocence
2016, Brown filed the present petition seeking a writ of
actual innocence. Brown asserts that he is "actually
innocent" of the crime as opposed to not guilty due to
insufficient evidence,  Code § 19.2-327.3, and that recent
DNA testing by a private laboratory conclusively exonerates
him with "clear and convincing evidence" such that
"no rational trier of fact would have found proof of
guilt . . . beyond a reasonable doubt." Code §
to an order by the trial court for post-conviction DNA
testing under Code § 19.2-327.1, DFS performed DNA
testing on various pieces of evidence from Brown's trial
beginning in 2008. After five supplemental orders, the
testing concluded in 2015 when Bode conducted DNA testing on
a vaginal smear slide. The final DNA test formed the basis of
Brown's petition for a writ of actual innocence.
the doctors at the hospital treated M.B., they "called
the GYN Service to make an examination before she left the
operating room." Trial Tr. at 118. The Department of
Pathology at the University of Virginia issued a report
signed by Dr. A.E. Sproul who examined a vaginal smear slide
taken from M.B., which was referred for examination by
"Dr. Flanagan, GYN."Pet. Ex. C, at 1. The report
listed "10/2/69" as the date, listed
"349442" as the number for the slide,
and stated that "[t]he specimen [was] received on a
glass slide" and was "submitted for H&E
staining." Id. Dr. Sproul's only
diagnosis stated: "Sperm present." Id.
Neither the slide nor the pathology report were entered into
evidence at Brown's trial, and neither Dr. Flanagan nor
Dr. Sproul testified about the vaginal smear slide.
2015, the slide was located at a storage facility for
UVA's Department of Pathology. Upon Brown's motion
for post-conviction DNA testing, the trial court ordered DFS
to perform a DNA analysis of the slide and M.B.'s
nightgown and to compare them "with other DNA developed
in this matter." Id. Ex. D, at 1-2. DFS created
a DNA profile for M.B. from DNA recovered from the nightgown
but could not create a DNA profile from the vaginal smear
slide. See id. Ex. E, at 3.
from a DFS forensic scientist stated that the vaginal smear
slide was fixed with an "intact" coverslip, but a
microscopic examination of the slide revealed that it would
be "too difficult to discern cell morphology"
because of a "dry" or "cracked"
coverslip. MTD Ex. 8, at 1. The "fixative on [the]
edges" of the slide was "scraped away from
coverslip, " and the "coverslip was removed
intact." Id. Then the forensic scientist
scraped both the slide and the coverslip into a weigh boat
and swabbed the scraped debris. See id. The
scientist also swabbed the slide and coverslip with a second
swab. See id. These swabs were combined and DNA
extracted from them, separating the sperm fraction and
non-sperm fraction. See id.
portion of the sperm fraction was used to create a new slide
to attempt to identify sperm cells, but none were found.
See id. at 2; Pet. Ex. E, at 3. The sperm fraction
yielded "[n]o DNA typing results, " and the
non-sperm fraction yielded "[a] DNA type of no
value." Pet. Ex. E, at 3. In a conversation with one of
the attorneys working on Brown's case, the forensic
scientist conveyed that the "DNA type of no value from
the non-sperm fraction" resulted in "one type at
locus D5, but that it was not compared to the victim."
MTD Ex. 9, at 1. When asked by the attorney "if there
was any sample remaining on the slide, " the forensic
scientist answered "that it was possible" because
"there could be residue left on the glass."
Id. Because "D5 is a small locus, " the
attorney inquired about the use of MiniFiler
testing. Id. The forensic scientist
stated that DFS did not have "Mini[F]iler online,
" but the "suitability of the testing
could be discussed with the [Commonwealth] and [the]
Technical Leader" of DFS. Id. DFS performed no
further testing on the vaginal smear slide.
couple of months after DFS completed its DNA testing of the
vaginal smear slide, Brown made a motion in the circuit court
for further post-conviction DNA testing of the slide by Bode,
and the Commonwealth made no objection to this request.
"[I]n the interests of justice and for good cause shown,
" the trial court ordered that "the vaginal smear
slide and any extracts, scrapings, or other remnants
therefrom" be packaged and sent to Bode for further DNA
analysis. Pet. Ex. F, at 1. Bode examined the original
vaginal smear slide and determined that it was
"inconclusive for the presence of spermatozoa"
because of "heavy pink staining/debris which prevented
an accurate confirmation of spermatozoa." MTD Ex. 12, at
2; see also Pet. Ex. G, at 1-2. The extracts that
DFS obtained from the vaginal smear slide and coverslip were
processed with a MiniFiler kit, but "[n]o DNA profiles
were obtained." Pet. Ex. G, at 1.
then swabbed both the original vaginal smear slide and the
new slide, which was created by DFS from a portion of the
sperm fraction, and both of those swabs were combined and
sent for differential extraction, which again separated any
DNA from the sample into a sperm fraction and a non-sperm
fraction. See id. at 2; MTD Ex. 12, at 2.
Brown's attorney elected to forego further staining of
the sample to identify spermatozoa "during the
extraction" because "the hospital saw the sperm
already" in 1969. MTD Ex. 12, at 4-5. Before Brown's
attorney elected to forego this test, the Bode forensic
scientist explained that the test "could potentially
reduce the available DNA within the ...