Was convicted on eyewitness testimony despite alibies for both robberies
By Rebecca M. Lightle
BridgeTower Media Newswires
RICHMOND, VA — A man convicted of two bank robberies is innocent of those crimes, the Court of Appeals of Virginia held on May 22.
Gary Bush, who served almost 10 years in prison, cleared his name after a surprise confession by the true perpetrator.
Represented by the Innocence Project at the University of Virginia, Bush successfully petitioned the appeals court for writs of actual innocence for both convictions. The case is Bush v. Commonwealth.
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Similar trials
In the summer of 2007, two different circuit courts convicted Bush for separate bank robberies.
The Bank of Southside Virginia in Petersburg was robbed in October 2006 by a man wearing a baseball cap pulled low over his eyes. Although they never got a good look at the robber, both a teller and manager identified Bush as the perpetrator, in a photo line-up and later in court.
A BB&T branch in Prince George County was robbed in November 2006, also by a man with a cap pulled low. A teller testified that she only saw the bottom part of his face, but she nevertheless identified Bush as the perpetrator in a photo line-up and in court. Another bank patron, who said he’d seen Bush “around town” and at “drug houses,” also identified Bush as the robber.
At both trials, a state witness said Bush had a serious – and expensive – drug problem. But Bush had alibis for both robberies, and a palm print taken from a note the robber had passed to one of the bank tellers didn’t match the print Bush provided.
Nevertheless, Bush was convicted in both cases — one a bench trial, and one with a jury — and sentenced to a total of 12 years’ incarceration. He did not appeal or seek habeas relief.
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Unexpected confession
In May 2016 — the same year Bush was released on geriatric parole — Christian Amos contacted police and confessed to both bank robberies. His account included corroborating details: the time of day, what he wore, what he wrote on the notes he passed to the tellers, the amount of money taken, and the weather. He was physically similar to Bush.
Amos, a former addict, said he’d robbed the banks to pay off his pain medication supplier. He didn’t know another person was in prison for the crimes.
At sentencing, Amos explained that he decided to confess after an incident with his grandson. The boy had broken some windows and, after first denying it, confessed and apologized to the owner.
Amos said he decided to follow his grandson’s example and “own up to it.”
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No rational juror would have found guilt
Supported by the Commonwealth, Bush petitioned for writs of actual innocence for both convictions under Code § 19.2-327.13. Courts can grant a writ only if the petitioner proves that newly discovered material evidence was unavailable and could not have been discovered through due diligence when his conviction became final. The evidence cannot be cumulative or collateral. And it must prove that no rational trier of fact would have found proof of guilt beyond a reasonable doubt.
The “would” component is a recent change to the actual-innocence statutes. Before 2013, Code § 19.2-327.13 read, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” (Emphasis added.) In its March ruling in In re Watford (VLW 018-6-015), the Supreme Court of Virginia said the amendment “fundamentally changed the nature of our inquiry in actual innocence cases.” Now, newly discovered evidence must make it “reasonably certain that no rational fact finder would have found [the petitioner] guilty.”
The Court of Appeals found that Bush clearly met this high bar. “No amount of diligence by Bush or his trial attorneys could have discovered Amos,” who didn’t confess until nearly a decade after Bush’s convictions, the court reasoned.
Further, Amos’s confession was reliable: He provided specific details corroborated by law enforcement. He also pled guilty to one of the robberies, without evidence of coercion or pressure.
Amos’s confession and guilty plea allowed the court to conclude with reasonable certainty, as the actual-innocence statutes require, that no rational fact finder would have found Bush guilty.
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Justice delayed, denied
In March, Amos told the Richmond Times-Dispatch that he didn’t understand why Bush’s name still hadn’t been cleared. “They know it was me and it’s been two years. I mean, he could have died before he’s even exonerated,” he said. After the court granted Bush’s petitions, Deirdre Enright, one of his Innocence Project attorneys, similarly expressed frustration with the process. “We should take this moment to focus on the reasons he was convicted,” she told the Times-Dispatch. “Gary’s alibis for both crimes – one of which was date-stamped records that he was in a meeting with a state officer – were both rejected” in favor of unreliable eyewitness testimony, Enright said.
Still, Bush may be able to seek statutory compensation or sue the state for damages, according to the Innocence Project’s news release on the court’s decision.
Representatives from the Innocence Project and the Office of the Attorney General were unavailable for further comment by press time.
