Executive order: Soering sues McDonnell for overstepping authority

Tim Kaine, left, now chairman of the Democratic National Committee, has remained mum about his decision to send Jens Soering back to Germany.
FILE PHOTOS

Convicted murderer Jens Soering tasted the possibility of going home last year when outgoing Governor Tim Kaine okayed his transfer to Germany. However, one week later, newly sworn-in Governor Bob McDonnell revoked the transfer, and now Soering is suing McDonnell, arguing that he doesn't have the power to undo Kaine's signed agreement with Germany.

The lawsuit was first revealed in the Daily Progress, and a new analysis by a top constitutional scholar suggests that this is one prison lawsuit that won't quickly disappear.

Charlottesville attorney Steve Rosenfeld filed the suit for Soering in Richmond Circuit Court January 18 and says it raises important aspects on constitutional and statutory limits to the governor's power.

"Here a governor a few days in office revokes his predecessor's approval on an international treaty," says Rosenfield. "The concern Governor McDonnell ought to have is in the precedence he's set in revoking a predecessor's act, because surely he has to worry when he leaves office, a successor will do the same."

On January 19, 2010, three days after taking office, Governor McDonnell wrote to U.S. Attorney General Eric Holder revoking Virginia's transfer of Soering to federal custody, which happens before a prisoner would be sent to Germany.

McDonnell acknowledges that Kaine's January 12, 2010, letter authorizing the transfer was "one of his official exercises of executive power." but points out that he was not consulted about the decision, and that after discussing it with incoming Attorney General Ken Cuccinelli and the Bedford commonwealth's attorney and sheriff, officials in the community where Derek and Nancy Haysom lived and were murdered March 30, 1985, he decided, "It is imperative that Jens Soering serve out his punishment in the Commonwealth of Virginia."

So how far can a governor go in undoing the work of a predecessor?

Constitutional expert A.E. Dick Howard, a UVA law professor, notes that Virginia's constitution gives governors broad clemency powers, but that Kaine didn't actually pardon Soering.

"Kaine's decision is not a vested right," says Howard. "It's not a pardon, it's not a reprieve. It's simply a transfer. I think this is genetically different from a pardon case."

On the other hand, says Howard, Soering's motion to overturn McDonnell's decision "is not a frivolous motion. It does raise questions about a governor's power under Virginia law."

Soering was a Jefferson Scholar when he met Elizabeth Haysom at UVA in 1984. He confessed to the murder of her parents and was sentenced to two life sentences. Later, Soering said he confessed because he hoped his father's diplomatic status would protect him and spare Haysom from the death penalty. She pleaded guilty to being an accessory to murder, and is serving a 90-year sentence.

Kaine's decision to release Soering into what's widely seen as more lenient treatment in Germany joins his decision to bail out millionaire land speculators by placing a state park in Albemarle County's growth area as controversial acts that he has declined to address despite repeated requests for comment. He now chairs the Democratic National Committee.

“At this point in time we have not been served in this case," says McDonnell press secretary Tracy Thornley. "We will have further comment if and when that occurs.”

The attorney general's office will defend McDonnell, according to Cuccinelli spokesman Brian Gottstein, who says the AG has not seen the lawsuit either.

"However, last year you may remember that one of the first things both the governor and the attorney general did when they first got into office was to fight to keep Jens Soering in Virginia to serve the full length of his prison sentence," reminds Gottstein in an email. "If he had been released back to Germany, he could have been free in as little as two years."

Soering has been jailed since his arrest in London in 1986, and is now housed in the Buckingham Correctional facility in Dillwyn.

Last week was an eventful one for the 44-year-old, who's been imprisoned for almost 25 years. DNA testing from the state forensic lab found neither Soering nor Haysom's DNA in samples collected from the crime scene. That doesn't clear a suspect in a murder case, but it was enough for a Soering attorney to request that McDonnell parole and deport Soering back to Germany.