Jason Lively was just 29 years old when he was sentenced to life in prison for a murder he did not commit and a fire he did not set.
In 2006, he was convicted of first-degree murder and first-degree arson in the death of Dr. Ebb K. “Doc” Whitely in a fire at his home in Iaeger in 2005. Expert testimony during his trial said the forensic evidence indicated two intentionally set fires. And one witness, who was later discredited, testified that Lively had been seen the morning of the fire in the vicinity of Whitley’s home.
However, by 2020, the prosecutor who secured Lively’s original conviction had executed affidavits questioning the validity of the conviction, in light of new scientific evidence. This included a report by a state-hired, acclaimed fire investigator who concluded that the fire was not intentionally set. Further, additional expert examination proved that no ignitable liquids or accelerants were present at the scene, more proof that the fire was not the result of arson.
But, because Lively didn’t have a statutory pathway to have this new evidence heard in state court, his exoneration last year — after 14 years behind bars — relied on an agreement with the prosecutor.
Innocent people shouldn’t have to contort their cases into constitutional claims, like ineffective assistance of counsel, or rely on rare, unlikely agreements with the prosecutor who put them in jail. They need a mechanism to get back into court to prove their innocence.
That’s why I sponsored House Bill 2888, which would give the wrongfully convicted an avenue to get back into state court based on discredited forensic evidence. The legislation passed the House of Delegates and Senate unanimously and is now with Gov. Jim Justice for his signature.
Making this bill a law is not only the right thing to do, it’s also a necessary action in the interest of justice.
According to the National Registry of Exonerations, 45% of DNA-based wrongful convictions and nearly a quarter of all wrongful convictions stem from false or misleading forensic evidence. This can include forensic analysis or testimony that was false, inaccurate or might have been generally accepted at the time but was later debunked by scientific advancements.
In West Virginia, however, an astonishing 90% of all exonerations have involved flawed or misleading forensics, with innocent citizens spending more than 100 combined years in prison for crimes they did not commit.
In many of these cases, scientific testimony that was generally accepted at the time of conviction has since been undermined by scientific advancements. In recent years, the National Academy of Science has detailed major flaws in bite marks, arson, hair comparisons and other types of forensic evidence used to convict people.
While forensic science can help correctly identify perpetrators of crimes, if not properly overseen and updated according to the latest standards, it also can implicate innocent people.
West Virginia has long appreciated the power of forensic evidence in the courtroom, and my legislation will continue that work by ensuring that science also can be used to exonerate.
Six states, including Texas and Wyoming, have “discredited forensics” laws on the books. In those states, when a judge is considering whether a convicted person should be able to get back into state court based on “new evidence” of his or her innocence, the new evidence may include scientific advancements, new guidelines or expert repudiation.
Additionally, several state high courts already have recognized that new evidence may include discredited forensics.
With scientific progress happening every day, and faster than ever, it’s critical that our justice system keep up. When bad or outdated science convicts an innocent person, it means the true perpetrator is still out in the community. HB 2888 is important for West Virginia because it will improve our courts, enhance public safety, help convict the guilty and protect the innocent with the power of science.