'Outrageous misconduct': Hash sues Culpeper prosecutor, sheriff

After spending nearly 12 years in prison for a crime he didn't commit, Michael Wayne Hash filed a civil lawsuit in federal court December 28 against Culpeper's top cops: former Commonwealth's Attorney Gary Close, Sheriff Scott Jenkins, Chief Deputy James Mack, and three others.

Last year, a federal judge vacated Hash's capital murder conviction, citing ineffective assistance of counsel and "outrageous misconduct" on the part of law enforcement. Hash was released from prison in March.

"The best way I can put it," says Hash, who's now 31 and lives in Crozet, "I could go to the state and receive monetary compensation or I could opt to file a civil suit against these individuals. I chose the second because the first lacked any accountability at all. I couldn't accept that. It's not guaranteed with a jury trial, but at least there's a chance."

The case stems from the brutal 1996 murder of Hash's mail carrier, 74-year-old Thelma Scroggins, who was shot four times in the head.

The slaying investigation was cold until a new sheriff, Lee Hart, was elected in 1999 and made the Scroggins case a priority. (Hart was an investigator on another notorious wrongful conviction case, that of Earl Washington, who came within nine days of execution in 1985.) Hart assigned Jenkins, later elected sheriff in 2011, and Mack to investigate– even though Jenkins had never investigated a homicide and Mack had never investigated any major crime, according to the complaint.

Mack referred the Hook to Sheriff Jenkins, who had not responded to multiple requests for comment at press time.

Hash was 15 when the murder occurred and 19 years old when he was convicted  and sentenced to life in prison without parole, "despite the total absence of credible evidence against him," says the lawsuit.

Judge James Turk in Roanoke threw out Hash's conviction February 28, calling it "an extreme malfunction of the state criminal justice system." He noted that law enforcement had coached witnesses to provide fabricated testimony by promising them favorable treatment, and withheld exculpatory materials.

Investigators shipped Hash from Culpeper Jail to Albemarle Charlottesville Regional Jail to bunk with a snitch– an unprecedented transfer– and then lied about their reasons for doing so, said the judge.

Former Commonwealth's Attorney Close used perjured testimony to convict Hash, determined Judge Turk, and Close's closing argument "constitutes false evidence of which the prosecutor knew or should have known," the judge said in his decision.

Close resigned from his office March 12 and did not return a phone call from the Hook.

The alleged snitch, Paul Carter, who has provided testimony against at least 20 people, according to the complaint, and whose federal drug dealing sentence was reduced after he testified against Hash, is named in the suit, as are Culpeper investigator Calvin Bruce Cave and former Culpeper chief jailer Mary Peters Dwyer. Carter and Dwyer did not return phone calls from the Hook, and a reporter was unable to locate Cave.

Police and prosecutors are sued "with some regularity, but not frequently," says Hook legal expert David Heilberg. "One reason it's difficult to sue is that they have sovereign immunity."

Violation of civil rights, however, is not covered by sovereign immunity, says Heilberg, nor is "willful, wanton, or intentional misconduct," which is what Hash accuses the police and prosecutor of in his suit.

Hash is represented by Hunton & Williams in Richmond, which put in 2,000 hours of free work to get his conviction vacated. Says Heilberg, "Hunton & Williams is heavy artillery for a civil rights case like this."

The new Culpeper Commonwealth's Attorney, Megan Frederick, is in the awkward position of having both her predecessor and the Culpeper Sheriff's Office accused of misconduct.

"I think there's a new face to prosecution here," says Frederick. "I fully intend not just to prosecute crimes, but to police the police."

Last year was not a good one for Culpeper law enforcement. Former police officer Daniel Harmon-Wright faces a murder charge for blasting 54-year-old unarmed Patricia Cook, who was sitting in a church parking lot.

Albemarle Sheriff Chip Harding was instrumental in the investigation that got Hash out of prison. Harding, a pioneer in the use of DNA testing, pushed funding for Virginia's DNA databank, which became a national model for solving cold cases. Now he sees it as a tool for freeing innocent people.

After reading John Grisham's The Innocent Man, Harding says he became involved several years ago with the Innocence Project, an organization dedicated to exonerating the wrongfully convicted, which also took Hash's case.

"The Innocence Project uses DNA, something I'm very into," says Harding.

He also came across a book by UVA law professor Brandon Garrett, an expert in wrongful convictions, called Convicting the Innocent: Where Criminal Prosecutions Go Wrong, which examined the first 250 exonerations that came from DNA testing.

"That had more impact on me than any book I've ever read about law enforcement," says Harding.

He says he asked Garrett how many times in those 250 cases had prosecutors or law enforcement been held responsible for criminal actions, such as fabricating evidence or knowingly allowing perjured testimony. In only one case had charges been brought, and that resulted in an acquittal.

"To me, that shouldn't be cloaked in immunity," opines Harding. He cites "the shocking facts" set forth in Judge Turk's opinion and says, "In this case, there's strong reason to believe law enforcement, the prosecutor, and others have committed criminal offenses, and if they have, they should be held criminally and civilly responsible."

Michael Hash would also like to see prosecution of those law enforcers named in his suit. "When there's evidence they've committed a crime, they should be held to the same standard as everyone else– if not a higher standard because of the position they hold," he says.

"Criminal prosecution is rare," says legal expert Heilberg. "More frequent are bar sanctions." He points out that no charges were filed against Durham County District Attorney Mike Nifong, who charged three Duke lacrosse players with rape in 2006 and was disbarred as a result of his handling of the case.

U.S. Attorney Timothy Heaphy declined to comment through his spokesperson about whether indictments would be coming against the Culpeper officials involved in sending Hash to prison.

"If there are federal indictments, I will cooperate with those," says Culpeper Commonwealth's Attorney Frederick, who notes that for her office to investigate elected officials, attorney general approval is required.

"My office will cooperate with anything that will provide justice to my community and to Michael Hash," she says. "I am bound and determined not to let an innocent man go to prison."

While most police do a good job, says Hash, there's a few who don't. "I'd like people to be more cautious about believing what they're told," he says. "Most people don't realize how easily their rights can be taken away. They can be in the same position as me, and that's scary."

Hash is not the only Crozet man claiming wrongful imprisonment. Robert Davis has been jailed 10 years for the 2003 murder of Nola Annette Charles and her toddler son, based on what he says was a false confession after a grueling six-hour, middle-of-the-night interrogation by Albemarle police. Davis has a clemency petition before Governor Bob McDonnell.

Unable to find a job because of his conviction, Hash is trying to catch up with with what's happened in the past 12 years. "You come back to a world that's left you behind," he says.

"Mike will never be able to recover the nearly 12 years he spent in jail for a crime he did not commit," his attorney Matthew Bosher writes in an email. "One of the aims of this lawsuit is to hold officials in Culpeper accountable for the misconduct that cost him all of those years."