Rape: After a Man is Convicted of Rape on Eyewitness Testimony, the Prosecutor Can Charge and Convict Another on DNA Evidence Years Later

The Virginia Court of Appeals has held that the Commonwealth’s Attorney can shift factual theories of a crime to convict two different people of the same crime.

In 1987, the Commonwealth tried and convicted Lorenzo Williams of Rape and Murder.  The rape victim testified that he had raped her.

In 2005, Governor Warner ordered all old cases with biological evidence be tested for DNA.  In 2010, such a test revealed that Mr. Williams was not the rapist; instead, Donald Farmer was.

Indicted for the rape soon afterward, Mr. Farmer argued that the victim and the prosecutor had already fingered Mr. Williams.  Moreover, at Mr. Farmer’s trial, the victim testified that she didn’t recognize him.  (Mr. Farmer’s confession certainly didn’t help his cause, however . . . )

The question for the appellate court was whether the prosecutor could so dramatically shift legal theories to convict two different people of the same crime.  The Court held that, absent bad faith, it could.  In this case, in addition to Mr. Farmer’s subsequent confession, he was faced with the issue of accomplice liability.  (Someone who helps one commit rape is just as guilty as the person who actually does the rape).  So, both men could legitimately have been convicted of the rape and the conviction stands.

The case is Farmer v. Commonwealth, No. 0191-12-2 (January 29, 2013).