Public Square: A conversation with Keith Harward

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Tom Silvestri, RTD publisher: Welcome to the 65th Public Square. ... Keith Harward spent 33 years behind bars, innocent of the crimes of which he was convicted. Now, for the first time in coming back to Virginia, he’s going to sit down with us. You’re going to hear his story. He’s going to tell you about his experiences. In the middle, there’s Keith himself. (APPLAUSE) A little bit of biography. Keith’s 60. An innocent North Carolina man, arrested when he was 26 years old. Spent 33 years, three decades, behind bars for a 1982 murder of Jesse Perron, and the rape of his wife in Newport News, largely on erroneous bite-mark comparison evidence from so-called experts. More on that from Keith.

To his right is his attorney, Olga Akselrod, senior staff attorney for The Innocence Project. Out of New York, she helped exonerate Keith. And among other cases, helped free another man in a story you might have heard about, Richmond’s Thomas Haynesworth, wrongly-convicted in a series of 1984 rapes committed by serial rapist Leon Davis Jr. ... We have our journalist, Frank Green. You’ve read his stories. That’s probably why you’re here. Frank Green has been covering criminal justice and all sorts of major issues since he joined The Times-Dispatch in 1980. He happens to be this year’s reigning Virginia Press Association Journalist of the Year, and we’re quite proud of him.

I’m going to turn this over to Keith. He and Frank are going to conduct a live interview. Some of you don’t always get a chance to see a reporter in action, but that’s part of this year’s Public Square specialty. You’ve seen our reporters in action. ...

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Frank Green, RTD staff writer: Well, Keith got to Richmond yesterday. And as Tom mentioned, it’s his first trip back to Virginia since he was ruled completely innocent of the crime. And he wanted to make sure everybody had gotten that word. Keith, what’s it like being in prison for decades, knowing you’re innocent? How do you cope?

Keith Harward: Well, what I actually did was, I was just so overwhelmed by the fact that the state had convicted me when I knew I didn’t commit the crime, that I held my head up high. I was proud of the fact that I didn’t cave in. I didn’t confess to anything I didn’t do, or anything like that. And I just knew all along that I didn’t do it. I was in a tough spot, and I couldn’t get depressed or down on myself, because it wasn’t my fault. So I just went day to day, just trying to be upbeat and trying to be respectful of others, and just thinking that — you know, maybe someday somebody would say, “Oh, we made a mistake. We need to let this guy out.”

Which actually did finally happen, through the help from The Innocence Project, and Frank. He — you all have a great writer here in Richmond. He wouldn’t let it go. And because of that, I got out early. I wasn’t even expecting to be out ‘til maybe Christmas, because the Supreme Court would have to act on it. But because it came to Frank throwing those articles out there, telling my truth, next thing I know, people decided, “Well, we need to do something about that.” You may have seen on TV where the — what’s his name, the attorney general?

Green: Mark Herring?

Harward: Mark Herring — got on TV and said, “We need to let this guy out. We got it wrong.” And next thing I know, I’m out, like, two days later. I’m standing out, and did a press conference. There at Nottoway prison. But that’s how I got through. I just told myself, “I can’t beat myself up over it, because it wasn’t my fault.” So I had to go day to day. I couldn’t get down and depressed. I mean, there’s no future in that. I mean, you know. You just — it just was so overwhelming that the state did what they did to me. Because, you know, this is America. And if somebody’s innocent, you’re not going to be found guilty. And I cooperated from the very beginning. I told them, answered all their questions. Did everything they wanted me to do. And I said, “Well, they’re not gonna convict me.” And the next thing I know, I’m in prison. And it’s like, “Wow. How did this happen?”

And now we know that it was a lot of wrongdoing on behalf of detectives and other people that were involved. Serologists lying at trials, and crazy bite-mark evidence. ... How can they take a bite mark? I mean, I can understand they can take remains and identify through dental records. But to take somebody’s — a person or a thing that’s been bitten, and say, “Oh, well, this matches.” How is that possible? But there’s people out there making money, testifying in cases. Identifying wrong people. That what’s happened. Six odonatologists all together said I did it beyond a shadow of a doubt, because of bite marks. Regardless of the DNA and the hypnotism of witnesses. And the lying of serologists. Six odonatologists, who just had to make their living, said, “Hey. He did it. No question about it, he did it.” But we found out different.

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Green: You were tried twice, and the first time, the death sentence was on the table. Were you afraid you might get the death sentence?

Harward: Well, once again, it comes back to that proud thing. I knew I didn’t do it. And they — my lawyers had offered to discuss a plea agreement. And I said, “No, there’s no way I could do that. I can’t admit to something I didn’t do. And I would rather be put to death knowing that I didn’t do it, than to sit in prison for the rest of my life, saying I admitted to something I didn’t do.” Because I’d have to spend all those years — I didn’t think I would ever get out, honestly. I didn’t think — until The Innocence Project took up my case. I was set to die in prison. I figured that was going to be my future.

So I dealt with it and lived with it. You know, you have to work with the cards that you’re dealt. You know, everybody out here, every day, you have to deal with what’s given to you. So, you know, I was in prison. So I had to say, “OK. Don’t beat myself up. Do the best I can. Treat people right, and try to be happy and upbeat about things.” But here I am today. Because of The Innocence Project, and Frank writing all those stories.

Silvestri: When you heard back from The Innocence Project, did you get your hopes up? Or did you try to temper your expectations?

Harward: Well, the city of Newport News and the State of Virginia already convicted me for something I didn’t do. So I wasn’t going to jump up and down and be excited, because, you know, they beat me down. They defeated me, even though I told the truth. And until I was standing out in that parking lot that day, I kept myself calm. Because there’s no need to get excited over something that may never happen. Who knows — there’s people out there, guys out there now, that are innocent or undeserving of the sentences they’ve got, that they’ve got to deal with and live with that. And I told myself, I said, “Well, until I get in that parking lot, I’m gonna remain calm.” Because I don’t want to get excited just to get let down. Because I’d already been let down once before, when I went to two different trials. Or, actually been let down twice. I was hoping somebody would step forward. “Oh, we made a mistake.” You know. “We’re gonna let you go.” But that never happened. Because, you know, egos got involved, and people telling lies, and that kind of thing. You know, their jobs depended on — their reputation depended on it. They weren’t going to say, “Oh, I made a mistake. This guy’s not the guy that did it.” They weren’t going to do it.

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Green: Can you describe how you found out that the Virginia Supreme Court had exonerated you, and how you felt?

Harward: Well, I was sitting in the cell trying to read one of your latest articles. ‘Cause I already try to read ‘em. You know, try to keep ‘em if I could. But I had to share my newspapers with everybody in my pod in the prison. But they called me, told me I needed to go to medical. So I went — off to medical I went. And they got there and said, “Well, you’re gonna spend the night here. We’re not going to let you go back to your cell.” I said, “What? I don’t want to — I’ve been here before. I’ve had medical issues and I’ve had to stay in the infirmary.” I said, “I don’t want to — this is the walking dead. I don’t want to stay here. I’m healthy. Nothing’s wrong with me.” And they said, “Calm down. Calm down.”

So next thing I know, they’re taking the handcuffs off of me, and I’m walking up to part of the prison where inmates don’t go. You’ve got that line. Do not pass that line, or trouble’s going to be bestowed upon you. And then I’m sitting in this nice room, carpet on the floor, big-backed chairs and stuff. And the warden walks in. He says, “Mr. Harward, you’ve been exonerated. The Supreme Court of Virginia signed the papers. You’re a free man, and I can’t let you back in the prison, because you’ll be a security risk.” ‘Cause they didn’t want me to be hurt by somebody else. Because now I’m a free person, sitting inside of a prison. And — you know, other than employees and stuff, that doesn’t happen. So.

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Silvestri: Olga, what went wrong in this case, and how did an innocent man get convicted of crimes like this?

Olga Akselrod, attorney for The Innocence Project: Well, a lot went wrong with this case, unfortunately. You know, the thing that was clear that went wrong when we first looked at the case, was that he was convicted based almost exclusively on the testimony of bite-mark experts. And you’ve heard Keith mention that. I mean, literally, what these experts did is, they had photographs of bite marks on the victim’s legs — the perpetrator bit her during this assault. And they compared those marks to molds of Keith’s teeth.

Well, there’s several problems with that. The first question is, are teeth unique? Right? So are Keith’s teeth so different from Frank’s teeth, so different from the many, many other people, such that we can tell them apart? That’s the first issue. The second is, can human skin accurately create an image of teeth? We know skin bruises and swells and all the stuff that can happen with skin. And so these experts testified that to medical certainty, that they’re positive that Keith Harward bit this victim. And that’s what convicted him. And what we have learned over time is that there’s absolutely no scientific basis for that whatsoever. This has never been scientifically validated. And yet these experts were allowed to come into court and convict Keith based on this testimony. And potentially subject him to the death penalty. It’s really quite frightening. ...

But other things went wrong as well that we discovered as we were working on the case. We discovered first that there was very important exculpatory information that had never been turned over to Keith’s attorneys. One of those pieces being that in addition to the bite marks, there was a security guard at the Newport News dock who testified that he saw somebody with blood on him stagger into the dock, which is where they thought the perpetrator was from. And his testimony was already pretty problematic. He saw this guy for a couple of seconds and didn’t make the ID until seven months later. He identified Keith.

Well, what we learned is that he was hypnotized. He had been hypnotized prior to the identification. There were major changes in his testimony or in his story, from the pre-hypnosis to after. The defense attorneys never knew that, so the jury never heard that. And the other big thing was that they had done testing on samples collected from the victim at the hospital. And the serologist from the Department of Forensic Science testified, “Well, I tested this one sample and I got nothing. I got no results and that could mean that there just wasn’t enough there to get a result.” Well, what we learned when we actually got a copy of the bench notes, which is his notes that he’s taking as he’s actually doing the testing, is that he had actually tested many samples, not just that one. And one of them contained serological results that would have excluded Keith.

So the reality is that this conviction should have never happened. This is not just, you know, a “mistakes happen.” This was a preventable situation. And Keith should have never spent 33 years incarcerated for a crime that he did not commit. Thank God that there is DNA that was able to prove it. But the reality is that he should never have been convicted.

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Green: Were Virginia authorities at Newport News and the Attorney General’s Office cooperative in this case?

Akselrod: They were very cooperative with us with the post-conviction investigation. Howard Gwynn’s office — he’s the Newport News commonwealth’s attorney — he consented to the DNA testing in this case. If he hadn’t have done that, we might have been litigating for years. The other really big thing that Howard did was, he consented to releasing the police file. And that’s huge. People need to understand that — you know, in Virginia, there is no standard that commonwealth’s attorneys have, where they have to turn over files. Even at the time of trial, it’s really kind of up to the commonwealth’s attorney and what their individual practices are with regards to what they turn over to the defense attorneys.

Post-conviction, we pretty much have no right to anything. And most of the time, if I’m trying to get documents, once somebody’s been convicted, I can’t get them. And so some of the things that we discovered in Keith’s case, we wouldn’t have been able to discover were it not for the fact that Howard Gwynn allowed for the Newport News Police Department to turn over their file. So, he was very cooperative. And the Attorney General’s Office, as Keith mentioned, was very cooperative once we actually got the exculpatory results. They fairly quickly made the determination that he was innocent and that he should be released. And we’re grateful for that.

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Green: I’d like to point out to everyone here, we have another exonoree here, Mr. Thomas Haynesworth, who was exonerated — was it 11? 2011. And — 27 years in prison. (APPLAUSE) Keith, you’ve been out 48 days.

Harward: Forty-eight days today.

Green: What’s been the best and what’s been the hardest part of that?

Harward: Well, the best, I guess, is the food. ... You know, they’re not gonna spend a lot of money on convicts — prisoners, inmates, offenders, whatever they want to call them. And the hardest part is technology. Everybody here, you’ve had a chance to learn, every day, something new. How this works, how that works. ... I had to start running right at the beginning. You know, cell phones. I have a little flip phone that The Innocence Project gave to me to use, and half the time I’m hanging up on people. I don’t know how that thing works.

Going into public restrooms. Years ago, and also in prison, everything’s handles. Flush the toilet, turn the water on. Going into airports and restaurants and things like that, you have to do a little happy dance to get things to work. So you walk in, I’m standing here, and I’m like this. And they’ll say, “What’s that creep doing standing around looking at the sink?” I’m trying to figure out how it works. Where to put my hand, you know? And the worst part is to find one that does not work. So I’m there half an hour doing this. Not knowing that it’s broke. The technology, it’s difficult. But I’m learning. You know, it’s not y’all’s fault. You all are there, and I’ve got to catch up. It’s gonna take me a while to do it. One day at a time. But.

I mean, everything’s great. Pouring down rain, lightning, people say, “How you doing?” I say, “It’s a wonderful day. It’s a beautiful day.” Because it is. You know, you don’t realize. Everybody takes so much for granted. But when you’re behind bars, behind fences and stuff, you know, just the simplest things — to be able to see things without a fence in the way. Just that alone. And just to be able to go places and do stuff and be with family, and like that. So, it’s all great. There’s nothing wrong. I mean, I haven’t had a meal yet that I didn’t love. Deep fry me a stick, I’ll eat it and it’s great. You know. ‘Cause in prison, you don’t — nowadays, you don’t get deep-fried foods. There’s the whole thing about the — they had the french fry riot some years ago and they took all the french fries out. So deep-frying’s not a way to go. But I’m from North Carolina. So, you know, it’s fried foods. Whatever it is, give it to me, it’s fried. So, everything’s great. I mean, it’s wonderful. Being here. To be here. And it’s because of these people. They helped me get out. ...

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Green: Olga, can you talk about why you pursued Keith’s case, and how difficult it is in general to find cases, to pick through the people who ask for help?

Akselrod: We are absolutely overwhelmed with requests for assistance. We get about 2,000 new requests for assistance per year. And sifting through all those is an enormous task. Because our project just handles DNA cases. So we have a lot of people writing to us who may be innocent, but it’s not a DNA case. And figuring that out — is it a case where DNA can prove innocence? — is something that can take a lot of collection of documents, and a lot of review. A lot of time to figure that out. So it’s an enormously difficult task.

Keith wrote to us in 2007. And he was basically in a wait list, waiting to have us decide whether or not we would take on his case. We, unfortunately, have a very long wait list, years, as a result of just how overwhelmed with requests we are. And in 2014, we started to say, you know, “Well, look. We know that bite marks are particularly problematic. Let’s go in our queue and see if we have cases where in our system, it actually says they were convicted based on bite marks.” And we were able to find Keith’s case that way. And we sort of bumped him out of the line, and started working on his case right away. And then a couple years later, we were able to get him out.

Green: Were you surprised at how quickly the Virginia Supreme Court acted? And can you tell the folks a little bit about what that did to your work?

Akselrod: We were very surprised at how quickly it happened. You know, we had filed our Writ of Actual Innocence in March, but there was some additional DNA testing that needed to happen after our initial filing. And as soon as the additional DNA testing was done, we filed supplemental papers. And about — I think maybe a week or two later, the attorney general filed a response saying, “Yes, Keith is innocent.”

Well, we, from past experience, thought that it was going to take months. In Thomas (Haynesworth’s) case — Thomas is sitting right here, as Frank mentioned — we had similarly very compelling DNA results, that the attorney general agreed Thomas was innocent. And he had a very complicated case in other ways. We were in front of the Supreme Court, and later in front of the Court of Appeals. But in the Supreme Court, even though everybody agreed he was innocent, and even though the Supreme Court granted an order to expedite, they still took four months to issue that decision. And so going based on that, we thought it was actually going to take quite a while for them to make a decision.

And we were absolutely shocked when the very day after the attorney general filed their response, the Supreme Court issued a writ. Keith’s entire legal team was actually in Texas for a conference that we have every year where all of The Innocence Projects around the country get together. And so we were frantically getting ourselves booked on flights to come to Virginia while also making arrangements for getting him out. Making arrangements for his family to be there. So it was quite a whirlwind.

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Green: I didn’t know this ‘til yesterday evening. But Keith is quite an artist. Can you talk a little bit about that? How you got into that?

Harward: Well, in prison you find things to do. Right or wrong, good or bad. And I always liked birds when I was little. So I started doing a little bit of artwork. Drawing, and things like that. And you’ve got plenty of time to do things, in between the eating, going to chow hall and outside rec, that kind of stuff. So I just — and basically what it was, was I was trying to make a little bit of money. I would draw on envelopes, and sell them to guys. And then I used to do some little pictures of birds. And just to kill some time. And have something to look forward to. Something to do, and feel like you accomplished something. You know, it’s hard to do in prison, to feel like you accomplished anything, because it’s a routine.

And, you know, now in the state of Virginia since (Ron) Angelone, (director of the Virginia Department of Corrections from 1994 to 2002), you don’t get many opportunities to accomplish things. They have a few classes and courses and stuff like that. But it’s dire. You know. It’s real bad. It doesn’t give — it’s warehousing in the state of Virginia as far as the Department of Corrections is concerned.

But I would do the artwork, and I just wanted to try and make a little bit of money. And I made — you know, a little bit here and there. Not a lot. But since I’ve been released, a friend of mine, a pen pal out in California, she’s taken and had some of my pictures made of prints, and she’s selling them through P.A.T.H., which is (Prison Arts Touching Hearts, prisonartstouchinghearts.org). ... And they’re setting stuff up to try to help me out, get a little funds. You know, that kind of thing, so I buy more fried food. (LAUGHTER) ...

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Green: I’d like to ask both of you. This is a horrible tragedy. Is there any good that you hope can come from this? Any lessons to be learned?

Harward: Well, I mean, it shines a bright light on the fact that there’s wrongdoings in the justice system. I mean, you think this is America. But you see it all the time, where police officers are bad, or detectives are bad or judges are bad, and that type of thing. But it just instills the fact that just because somebody’s in prison, doesn’t necessarily mean that they should be there or be there as long as they are. Because honestly, prisons, corrections, it’s a business. And one thing relies on the other which relies on the other. So to be able to have a Department of Corrections, you have to have inmates, or offenders, or convicts. And to be able to support the companies that deal with prisons and things like that.

But anyway. There’s a whole lot of stuff going on with the justice system in Virginia and around the country, where people don’t realize — because unless you’ve got a family member that’s been convicted, you have no idea. But once you find out, when you have a family member, you find out there’s stuff going on that should not be going on. And maybe in some way some light can be shown on it. People can see. ...

Akselrod: Well, one good thing has already come of this case, which is that the Department of Forensic Science has agreed to do an audit of serology cases. And that’s something they agreed to very quickly, and we’re very happy about that. I would not be surprised if more cases like Keith’s are found, where improper serological testimony was given.

But, you know, one thing that we really hope comes out of this case, is that we hope that this case will mean that courts will stop allowing bite-mark testimony. This is not a thing of the past. This is testimony that experts are still using to this day, that people are being convicted on today. And it’s our sincere hope that Keith’s case will be a major warning. And that it will mean, hopefully, that prosecutors in Virginia will stop allowing this into their courts. Will stop presenting it. The Texas Forensics Science Commission recently issued a directive that bite-mark testimony no longer be allowed in, until it’s scientifically validated. We don’t expect that it ever would be scientifically validated, given the problems that I mentioned earlier. And we really hope that Virginia follows in that footstep of Texas. Stops allowing it in the courts. And also does an audit of the old bite mark cases.

It’s very hard for us to find these old cases. But they’re out there. Keith is not the only person in Virginia who would have been convicted based on bite-mark testimony. And the people that are in the best position to find those cases and review them are the authorities of the commonwealth. So we would very much hope that the commonwealth would take that up.

Also, there’s legal fixes that need to happen. People need to understand that Virginia — I litigate all over the country — and Virginia is one of the hardest places to overturn convictions where people have been wrongfully convicted. The legal standard that you have to meet in Virginia is so much higher than it is in most states. And there are these enormous barriers. In Virginia, for example, if you have evidence that proves that you have a major constitutional violation, where there is a really unfair trial — if you have that kind of new evidence but you discover it more than two years after your trial, or more than a year after your appeal, you can’t get that into court in Virginia. And that is very different than the law in just about every other state. ... There’s a lot of changes that need to happen here with regards to the criminal justice system in Virginia. And I really, really hope that Keith’s case is a springboard for those changes.

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Silvestri: ... I’m wondering if Mr. Haynesworth would say a few words. If you will. I don’t mean to put you on the spot. But we had mentioned your case before you came here. And all of a sudden, instead of hiding in the back, you’re up front over here. You heard Keith’s story. What can you add to it from your perspective?

Thomas Haynesworth: I can relate with Keith — I was going through the same thing. You know, when you’ve been in a place that you’ve got no say in the matter — you know, I was 18 years old when I went in the system. Came home at the age of 46. And I was a senior in high school. But I made the best of a worst situation. I got my GED. I got four years of college. And I got six trades learned in prison. So I kind of bettered myself. But the whole thing, I just want to prove that the judicial system there was wrong. In my case, I’m a child accused of raping and attacking five females. And the real perpetrator, in my case, he lived right down the street from me, named Leon Davis Jr.. And I told my lawyer and I told the detective in my case, “Look at this dude named Leon Davis.” But they were so bent on my case, that they got five witnesses who picked me out. They said all five couldn’t be wrong. And so the detectives, they never looked at my neighbor. By them not looking at my neighbor, they allowed this man to rape 25 more women. ... I went to the conference (Olga) mentioned out in San Antonio, and Keith — when you got exonerated, we were up there cheering for you. ...

I work for the Office of the Attorney General. And he came to me the day before he had a press conference. He said, “What can we do to help Keith?” And I gave him some pointers, what they could do to help this man. And I said, “What you can do is meet with this man and meet with his family. Let them know that y’all got his back, and that he’s an innocent man, and open up the doors for him.”

Twenty-some years it took me, I had to fight — I mean, I fought for everything. Like Olga said, I wrote the Innocence Project in 2004. And I was on the waiting list, you know? But they got back to me in 2010. And 2011, I was fully exonerated. And when you’re going through something at the age of 18 — like Keith said — when I first got home, I didn’t know how to work a gas pump. You know? When I got there ... I stood there about 15 minutes. I said, “Miss, can you help me?” And the whole thing is, you lose touch with reality when you go in so young. And all I had to do is put the switch up. I didn’t know how to do that. When I came I was so frustrated, because a lot of things at my age, I should know how it’s done. And I was robbed of that.

But now, I’ve been a civilian and back in the community for five years. I work with the Office of the Attorney General. I’m a co-owner of a mechanics shop. I made the best out of a worst situation. And Keith, it’ll take time. But you can get there, though. Last night I went to Walmart — I went about (midnight). My niece said, “Why’re you going out?” I said, “I want some ice cream.” But in prison, you can’t do that. You’re in a cell with somebody else, you’ve got rules and regulations. And every morning I woke up in prison, the first thing I said, “Lord, I thank you for another day. I hate this place.” When you’ve been in a place where you have no amount of say in, and your life has been taken from you, and you go tell people that you’re innocent but nobody hears you, nobody pays attention to you.

Then I got The Innocence Project with Olga. Frank Green — we became close over the course of the year. This man came to the prison and wrote my story. One thing that you knew about Frank is that when my case was going through court, Frank was new at this. And to this day, Frank Green says he feels bad that as a young journalist, he could not connect the dots between me and the Leon Davis case. Because everything in my case and Leon Davis’ case, this man was doing the same thing and doing the same thing to his victims that I was supposed to be saying, and doing the same thing. And we lived right in the same neighborhood. Same blood type. One year apart.

You know, I kept telling them, “Look at this dude named Leon Davis.” And this man, to this day, had not come forward and confessed, and accepted what he had done. But, you know, through my trial and journey, I just want to say, when you just live in a place where you’re at, and you’ve just got that perseverance to press on — I never gave up. I wrote numerous organizations. When doors were slammed in my face I said, “I’ll never give up.” I didn’t lay there and accept this. Every day, I wrote — I wrote until somebody took my cases on and listened to my cry.

And the same thing, what I do is, I never forget. I go back to prison. I visit the guys on a constant basis. Every weekend I’m at the prison seeing somebody. Because I know what they’re going through, you know. Everybody makes mistakes. Nobody’s perfect. But I understand what I’ve been through. And where I came from, where I’m at. And I made the best out of a worst situation. ...

(Keith), through your trials and your situation, what can you say that — you know, one of the uplifting things that you can say, you can give to somebody who’s coming after you. What kind of hope you can give them?

Harward: Well, the thing is that there’s support systems set up now that really helped me. I mean, I was lucky in the fact that I have a family that was there for me when I got out. I constantly think about the guys that get out on parole. They step out that gate, and there’s no one there. See, I had family. I had nine lawyers with me. So, I had great support. But I think about the guys that get out, that there’s nobody there. And then when you go on parole, you know, you get the bus ticket and a few dollars. That’s not going to get you halfway down the street. And then you’re standing there, “What do I do now? Where’s my health?” And that’s why recidivism is so great. Because after a while, you’re going to return back to what you were doing before to get you through. And then you’re right back in again. And I think that for exonorees, there’s a whole lot of support. Great people like y’all coming to see me. But for everyday guys that’s getting out, there needs to be some type of system set up.

When (Ron) Angelone came in (at DOC) ... one of the first statements was — and you probably remember this — that prisoners in Virginia were living a country club lifestyle — so we got to do away with that. This is prison. OK, it’s prison. You go in there because you did something wrong. But when you start jerking out classes and programs and things that guys have something to look forward to, something to do like that, that’s wrong. It’s a warehouse. That’s all we are, we’re in a warehouse. ... I mean, so you’ve got no support on the inside. And you’ve got no support on the outside. You’ve got no way to do anything once you get out that gate. I was extremely lucky. But most everyday guys getting out, there’s nothing there. The family’s either died or won’t have anything to do with them because they committed crimes. They’re criminal. So where do they turn? You know, churches look out for them a lot. But that’s not enough. They need to start setting up more halfway houses. The state, if they spent some money on setting up programs to help people when they get out, they won’t have to pay for them when they go back in, you see. You know, spend a hundred, two, three hundred dollars on them now, or $30,000 later here. ...

But hold hope. Don’t give up. I mean, it took me 34 years, because I was 11 months in jail before I was convicted. And then I spent 33 years. So it was 34 years altogether. I didn’t give up hope. Even though I didn’t think I would ever get out of prison. But there was no need to beat up on myself. And have hope. You know, you never know. And Virginia now has that 85 percent deal, where guys are spending 85 percent of their conviction time. Whereas it used to be less before. But, you know, they’re always hoping that the legislature’s going to come up and say, “Well, you know, we’ve got people in here for drugs and small crimes and stuff like that, that doesn’t need to be here forever. We need to let them out. Give them another opportunity. Or find other avenues.” You know, they don’t need to lock people up in prison because they have drugs. I mean, it’s big in the Department of Corrections. Drugs are bad. You know, people being convicted of it. And it’s a disease. In a lot of cases, it’s something that can’t be helped, just like alcoholism and things like that.

And if there’s no programs, or no way in prison to do it, well, find alternatives outside of prison — drug treatment, things like that. You all see stuff on the news all the time where other states are doing things. And they’re not wasting the money. Because the prison system is set up to make you fail. Because if you do get on parole, there are so many restrictions on you that you’re going to fail. And it gets back to that thing about the money. You know, the Department of Corrections is a big business. People rely on that big business to make their money.

Silvestri: All right, we’ll go to the audience. ...

***

Roy Fauber, Richmond: This is a question for Olga. What is our political or legal justification for giving so much authority to commonwealth’s attorneys to decide whether or not they’ll release information? Whether or not they will let things proceed, and so forth? It sounds like it’s pretty much in their hands.

Akselrod: ... In most states, you have more centralized discovery rules at the time of trial that say this or that has to be turned over. In Virginia, it’s really left up to individual commonwealth’s attorneys. And a lot of commonwealth’s attorneys have what they call an “open file” policy, which sounds like that means, our files are open. You can see them. Right?

But in reality, what “open file” policy often means is that the commonwealth’s attorneys are sort of deciding what goes in there. And that’s what the defense attorney gets, and not something else. So the reality is at the trial level that there needs to be clearer rules. ... You shouldn’t have different access to information in Richmond than you do in Newport News. But that’s the reality of how it is. So there needs to be laws that really establish what the practice should be across the board in Virginia.

And with regards to post-conviction, it’s just, again, there’s no clear access to it. In Texas, in response to one of the exonerations, there’s now a rule that allows you to actually get — very clearly allows you to get files post-conviction. And there needs to be something like that in Virginia. In addition to what happens in the course of litigation, the Virginia Freedom of Information Act laws are also more restrictive than they are in most places. In a lot of states — and Frank probably knows this from doing reporting work — in a lot of states, I can actually get information on my clients’ cases through Freedom of Information Act requests. In Virginia, it’s very rare that you can get that. There’s a law enforcement exception, and most of the time the police actually use that discretion to deny you your request.

So these are all things that can be changed. They are creatures of Virginia law. And so to the extent that the proper pressure is being put on the lawmakers, they can be changed. But the reality is that right now in Virginia it’s very, very hard to get information. And once you have it, it’s very, very hard to actually get legal relief based on the information that you got.

***

Dale Brumfield, Doswell: I have a question I guess for The Innocence Project. There have been 16 or 17 DNA exonerations in Virginia since over the last few years, I guess. And all of these were crimes where conviction and sentencing occurred in the 1979 to 1989 time period. Now, while the No. 1 cause of improper conviction is victim misidentification, the second leading cause appears to be improper or faulty forensics. Is there any type of top-to-bottom review of the Virginia Department of Forensic Science during this time period, over and above just bite marks?

Akselrod: Well, the Virginia Department of Forensic Science wasn’t doing bite-mark analysis. That was actually being done by what Keith referred to, odontologists. So they’re kind of like independent experts. So what was happening is that if you had a bite-mark case, the authorities ... were contacting these forensic dentists to come and do the analysis. So it wasn’t actually being done by the Virginia Department of Forensic Science. And in some ways, if it had been done by them, it would be easier to find the cases. Because we could go to the Virginia Department of Forensic Science. They’re willing to do the serology audit. If it was a centralized body that had been doing it, it would actually be easier to find these older cases.

There is a movement actually nationwide to try to deal with some of these problems. In 2009, the National Academy of Sciences came out with a report that was sort of a study of forensic sciences across the board. And in some ways, bite marks are kind of the worse of the worse. But there’s a lot of other forensic disciplines that are equally problematic, that have not been scientifically validated. Hair comparison is one that we hear about a lot now, where experts were taking hairs and putting them next to each other under a microscope and saying, “This hair matches.” There have been a lot of wrongful convictions based on that.

Even stuff that people think is more established is problematic. Ballistics. There actually isn’t a ton of testing that’s been done to support something like ballistics, where we’re comparing a bullet, and whether it could have come from a particular gun. So this is a problem sort of across the board. There is some movement to establish national standards around forensics, but it’s really just at the beginning. We’re really just beginning to deal with this problem. And the reality is that the experts that have been working in these fields for years and years are hesitant to admit that they’ve been testifying that something is a science, and there actually isn’t any backing to it. The courts are hesitant to admit that they’ve been allowing this stuff in for years and years, and there may be a lot of wrongful convictions based on it. So we know that it’s a major problem. And people are just beginning to deal with it.

***

Dave Burton, Midlothian: I wondered whether either of you gentlemen has received a sincere expression of regret from anyone involved in your prosecution, be it a prosecutor or a detective, or anybody like that, has come to you and said, “We really messed this up, and I cannot tell you how sorry I am, or how much I regret it.”

Harward: Well, the attorney general called me the day I was released. We were sitting in Farmville at a restaurant, and I was eating my first free meal. We had some fried stuff around. I keep bringing that up. I don’t know why. It gets a laugh, so I guess it works. And he called me on the phone and told me, he apologized. Just like he did on his press conference. He said, you know, in 30 years, he had gotten married and had children and lived a life and was able to be prosperous, and that kind of thing. And he was sorry he couldn’t realize what it was for me to lose 30 years. Because I was older than Tom (Haynesworth) was. I was 26 years old. And if you think back to when you were 25, 30 years old, and you take 30 years outta that, and then you jump back in — those are the best years of your lives. Because you had kids. Your kids had kids. You got to go to graduation. You got to be able to earn a living, become somebody. Retire, maybe, from your work. I didn’t get that. Those criminals down in Newport News that wanted a conviction and not the truth — that’s what they were after. A conviction, not the truth. Just like with him. They were so mystified at the period of time they couldn’t find anybody, so when I came along they latched on to me. And you heard what they did to me. They didn’t do. Those years were gone. You know. Those years were taken away from me.

Green: The prosecutor, the judge, and the lead detective in Keith’s case are all deceased.

Harward: But the attorney general did call and apologize. And I told him, I said, “Well, there’s one thing wrong about this. The fact that I’m from North Carolina and I can’t vote for you.”

***

Mark Ailsworth, Richmond: Mr. Harward, at the time of your prosecution and conviction, I was a young, wet-behind-the-ears attorney in Newport News, Virginia. I had no involvement in your case in any way. But I do want you to be aware of the fact that your case was the subject of great conversation among many members of the defense bar at the time of the prosecution and at the time of the trial. I knew all of the people who were involved in your trial, from the detectives right down — I even noticed in a Times-Dispatch photo, I even recognized one of the bailiffs.

And our discussion centered on the fact that there seemed to be a great deal of — there was a great question about whether or not the evidence that your conviction rested on was legitimate evidence, and whether it should have been admissible. My great regret — and I will offer you an apology for this — is that all we did was talk about it. We didn’t act on it. And for that, as an officer of the court and as a member of the bar, I’m very, very sorry for that. Because we could have taken action, and we didn’t do it. We just talked about it.

I do have a question for your attorney. You mentioned that your organization only deals with cases involving DNA evidence. It’s been mentioned before, but certainly there are scores of individuals convicted in this country on a daily basis, convicted of violent crimes, on the basis of very, very persuasive but often very unreliable evidence, and that’s eyewitness identification. Is there an organization similar to yours that is addressing that issue? And if so, could you tell us about it?

Akselrod: Thomas mentioned this, because eyewitness identification was the reason that he was convicted. Five different women mistakenly identified Thomas as their attacker, and all five of them were wrong. Their real attacker was actually Leon Davis Jr. And that’s just one case amongst many. In about 75 percent of our cases, we see mistaken identifications. Our organization just handles cases where DNA can prove innocence one way or the other. But we do actually do a lot of work trying to change police practices around how identifications are done.

And there’s a lot of reasons for mistaken identifications that police can’t control. They can’t control how well-lit the crime scene was. They can’t control how long a witness was able to see the perpetrator. They can’t control the race of the perpetrator. Cross-race identifications are much more unreliable than when people are identifying somebody of the same race. So there’s a lot of things that police can’t control.

But there’s also a lot of things that they can control. And there’s been a ton of social science research showing that the traditional way that we all know line-ups occur — I mean, we’ve all seen line-ups on TV at least, right? So, you know, they get five or six guys in a room. One of them is the suspect, right? And then you’ve got — they’re called “fillers.” The other guys are in the room together, and the witness looks at the line-up all at once and says, “OK, it’s that guy.” Well, it turns out that what witnesses do when faced with that kind of line-up is that they’re not comparing the people they see to their memory of the perpetrator. They’re comparing them to each other. And they’re saying, “Oh, that person looks the most like the perpetrator.” And if, instead of doing it that way, you actually show the people one at a time, it actually has a huge impact in leading to more reliable identifications.

The other big thing that police can do is, instead of having an officer who knows who the suspect is conduct the line-up, they should have somebody who doesn’t know anything about the case do it. And what that allows for is, it allows us to protect from — you know, I think most of the time the officers are actually trying to do the right thing, and they’re not intentionally contaminating. But you do have some officers that are gonna give some cues to the witness, and say, “Why don’t you take another look at number three,” right? But even putting that aside, you have officers who are trying to do their job, but they unwittingly give cues. And things like telling a witness, “You did a good job,” after they pick somebody, can actually lead a witness who’s maybe not that certain to becoming very certain by the time of trial. So there’s things that police can do. We are working with police departments directly to try to get them to adopt best practices. We’re working with legislatures to try to get them to mandate best practices, and courts to try to change the laws around this stuff. ...

***

Donovan Unland, Mechanicsville: I was a Navy corpsman the same time you served, and then I was a prison medic for 20 years at a maximum prison in Joliet, Illinois. I just gotta say, I know what goes on behind those walls. So Keith and Thomas, you guys ... you’re the true survivor men. So my question is, 24 hours. That’s got to drag, drag. Compare 24 hours now that you’re physically free again, compared to the 24 hours locked up.

Harward: Well, there’s — now, there’s more than 24 hours in a day, it seems like. I mean, there’s so much stuff to do and things I have to do, that by the end of the day, I am beat. But when you’re in prison, you know, other than — you go to chow. You might have a little outside rec. If you take a class or something, if you’re lucky enough to have a class to take. The rest of the time, it’s — you’re just sitting around, just vegetating. And a lotta guys, they’ll sleep. I’ve known guys that, they’ll get up and go to breakfast. Go back and go to sleep. Get up for lunch. Go back, go to sleep. Go to dinner. And they sit up and watch TV ‘til four, five in the morning. Go to sleep, go to breakfast. Over and over again.

It’s ‘cause there’s not a lot of stuff to do. And it’s a routine. You being in the military, thank you for your service to our country, sir. With that routine, you know, you kind of meld it in. “Well, I’ll walk back slow from the chow hall. That way, you know, when I get back to the bunk or back to the pod, I can kind of drag that out.” So you make — and I used to do artwork. You know, I did that for a while, to occupy some time, because it seemed like there was so much time. And you get in that routine. And every day, you know, you’ve got those periods where you’re just like, “Wow. What can I do?” And you find something to do. I mean, you can take the simplest things. You know, rearranging envelopes, or moving things around in your cell. You don’t have much, but you can spend a couple hours with just a little bit. Because you get that routine. And you just find ways to fill time.

But now, I mean, it’s — I get up at 6:00 in the morning. I hit the ground running. And by 10:00 at night, I’m through. I mean, phew. I’m done. And every day it’s something I have to do. Like today, the day was scheduled for this. So that’s what occupied my day. Thinking about it, doing it. Realizing afterwards how well I did, or what I should have done or should have said. Then I got — I’m on a little adventure. I took a bus up here. I could have flown, took a train. They would have come got me. I’m in Greensboro, four hours away, something like that. But, I want to ride a bus. So I rode a bus yesterday. And that was fun. I had a great time. (LAUGHTER) I mean, you know, it’s kind of like the scene from Star Wars, the bar scene in Star Wars. But it was great. You meet people. You want to meet people? And they’re not the same kind of people that I was. You know, in prison, everybody kind of becomes the same. Because you do the same. You have the same clothes, you eat the same meals, and all that kind of stuff.

But to be on a bus, and ride. I’m gonna take one back. And be able to look out the window, and things like that. So there’s 48, 50 hours in my day right now. And I’m kind of enjoying that. I hope it doesn’t run out, but it will. You know. But I’m kind of — ‘cause everything’s new. I mean, it’s just — everything’s new. ...

***

Silvestri: Olga, the family situation. You’ve got the person in jail, and the family. Can you talk about the lawyer relationship in The Innocence Project, and how the family plays a role in that?

Akselrod: Keith mentioned that he has a very supportive family. And that’s something that makes all the difference. I have had several clients released who don’t have family. Keith has talked about the incredibly difficult journey that he’s on right now, and sort of reintegrating back into this world. Well, imagine how that journey would be if he didn’t have his brother to live with, and to get that support. That’s a situation that several of our clients are in. Thomas, thank God, has his mother that he could live with when he got out. So family plays a huge, huge role in standing by their wrongfully-convicted loved one while they’re incarcerated. And in helping them back into the world when they get out. Because it’s a very, very difficult thing that Keith is going through, and that Thomas has gone through and probably is still going through, even though it’s been a few years. It’s very, very difficult to do if you don’t have the support of loved ones.

Harward: ... And here I’m going to get emotional. I lost my parents while I was in prison. And that was the worst part about it. Because they knew I was innocent. And now they’re dead, and that’s the worst part about it. ...

***

Emily Irwin, Manakin Sabot: As a college student and an aspiring journalist, I have a question for Frank and Keith. I just want to know what it’s like to be on the reporting side of things, knowing that you have the power of journalism, but you don’t have any sort of legal power, so to speak. What was that like? And Keith, how much did it mean to you to have a journalist on your side? Someone that could report on what was going on, and how powerful is that, to have just sort of the journalism on your side?

Frank Green: Well, these are very sad stories. But also, in a way, very happy ones. I like telling important, good stories. And that’s what these are. I don’t get people out of prison. People like Olga do it. They’re the ones with the skills and the means of doing it. That’s why I write about what they do. And I think it’s important. I don’t think we have a bad justice system, but it can certainly be improved. And these are the kinds of cases that can really lend themselves to improving our justice system. Anything that involves people, there are going to be errors. And hopefully we catch them, and do something to make sure they don’t happen in the future.

Harward: Well, don’t sell yourself short. The Innocence Project did all the law work. Because of you, I’m here today. Otherwise, I’d still be sitting at Nottoway, waiting for the justice system to act. Because you turned that light on. And those that didn’t scurry away realized, “We’ve got to do something. This is wrong. We’ve got to get this guy out.” And that’s because of you, Frank. I know you don’t want to accept that, but that’s the truth. If you — (APPLAUSE). So to have someone like Frank Green, which — all you people from Virginia are lucky to have a man — this is Woodward/Bernstein right here. Because it’s true. If it weren’t for him, I’d still be sitting in a prison, waiting for the system to play itself out. And I always said it might be Christmas before I got out. But to an aspiring journalist, do good stuff. This is the kind of guy you want to mold yourself after, right here.

***

Rhonda Rowland, Farmville: I commend you, Mr. Green, for your journalism. That’s why I’m here. I followed all of your articles about Keith. And when I found out (he was) going to be released from Nottaway ... I came over there. Not knowing that I would be able to come in. But I want you to know, that was one of the highlights of my life. To be able to see you walk out of that prison as a free man. I was upset that our governor, nor anyone from his office, was there. So I would like to apologize to you from —

Harward: It wasn’t your fault.

Rowland: — for those of us from the state of Virginia. I am so happy for you. And you made a very interesting comment that day, that there were a lot of evil and sadistic people back there. And you said, “And there are some bad inmates, too.” (LAUGHTER) I know some people who work at Nottaway, so I would be interested in what you have to say, to elaborate on that.

Harward: Well, I mean, there are some great people there. Just like anywhere. You know, you’ve got a percentage of great people, and a percentage of bad people. It’s a tendency, I would say, in the Department of Corrections — maybe 75 percent are kind of sketchy. For the pure fact that for some, that’s their last step before living in a box under the bridge. I’ve said that many times. So they’ve got issues already. So you take those people and put them in charge of other people that have issues. Inmates, convicts, offenders. That’s not a good soup. But there are some great, great staff members with the Department of Corrections. There are. Some with good hearts. But they’re very few and far between.

***

Deborah Miller, Mechanicsville: In your 34 years, you’ve had a lot of conversations with a lot of men. What percentage of those men do you think shared your predicament, that they were there unjustly?

Harward: Well, it’s really hard to say. Thomas will tell you, everybody in prison, nobody’s guilty. I mean, you know, because they’re afraid of what they did, or denying themselves the truth, or whatever the case may be. But there’s a lot of guys that are in there, that shouldn’t be in there that long. You know. I run across people every day, and I — you know, you’re good people. You shouldn’t be here like this. And they got — they’ve been taken away from their families. And young guys have children and things like that. That’s the worst thing you can do to to a child, is take their father away — or a mother — away from them for a long period of time for something that shouldn’t be like that. I get back to that drug thing. There’s a lot of guys that are in prison because of drugs, either because of selling them or being on them, or whatever the case may be. And as far as being on the drugs, you know, to incarcerate people for long periods of time, there’s no future in that. You know, you’re just throwing money away. You’re just throwing money away. ...

I just recently found out that the detective in my case, he took — after the trial was over and I was convicted, he took the molds and had brass molds made of my teeth for paperweights for his desk. Now, he knew what he did to me. But he still said, “I got him.” It was a bad situation. ...

But a lot of times, you know, I tell people, “If you run into any kind of problem with the justice system, seek help.” Don’t do like I did. I just freely gave information and went about like, “Well, I’m innocent. So what do I got to hide? I got nothing to hide. I’ll cooperate.” But in hindsight, if I would have knew, I would have lawyered up like that. And maybe, maybe prevented what happened to me.

***

Deb Durant, Richmond: God bless you, Keith. And you too, Thomas. We want you around for a little while, so knock off the fried food. (LAUGHTER) I want to thank The Richmond Times-Dispatch, too, for keeping this story alive. And all these stories. ...

***

Diane Boone, Ruther Glen: Keith, you seem to be a mild-mannered man. You know, you’re not of large stature. How did the other inmates treat you? You seem like you would be encouraging to other people that you were with.

Harward: Well, that’s what got me through my time. I’ve always been kind of happy and upbeat. And like I’ve told other people before, you know, I use humor. You all have laughed at a few of my jokes. But I used humor a lot, and I was respectful. And like I tell ‘em, I say, “Well, as long as they’re laughing, they’re not stabbing or beating.” So, you know, they give you the opportunity to get away. But I treat everybody with respect. You know? I’m not a hater. People can be whatever they want to be. And I always kept everything upbeat. If I saw that — you know, misery loves company. And if I saw that coming, I would try to find some way to avoid it. Because — for my own self, you know? I want to stay upbeat. And people want to drag you down in prison.

But I — you know, they treated me good. I’m still writing guys now. I hope one day to be able to — once I get a few months or years down the road, I want to be able to go visit. Plus, I want to walk in there and say, “Hey. I’m on this side now.You don’t have to put handcuffs on me anymore.” You know? Show ‘em, say, “See, I told you. I told you I was innocent. But no, you didn’t believe me. It’s been proven.” But that’s the way I got through. I did OK.

***

Andy Jenks, Henrico: ... What are two or three additional examples of things you’d like to see, do, or learn, that you’ve been hoping to but maybe haven’t had a chance to do just yet?

Harward: Well, I want to get a driver’s license. That’s one thing. Because I rely on my family and friends to cart me around everywhere, and I feel like I’m putting them out. Even though they tell me, “No, no, we’ll carry you wherever you need to go.” I wanted to do that. And — and I would like, sooner or later, to be able to go around and travel, and see the people that were pen pals. I mean, nowadays you all own phones and Twitter and all that kind of stuff. But in prison, writing’s still a kind of important thing. And I have several pen pals around the country. I’d like to go visit them. And I’d like to be able to do more things like this. You know, to help people out. And show how there are good people in this world. And, you know, we shouldn’t all be down. There’s — there’s a good, bright future out there. So I’d like to be able to help out, you know? To be able to speak, and to help out for the next guy that comes along. Be able to do fundraisers for The Innocence Project. Because they got me out. And I want to be able to help the next guy get out. ...