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No retrial for Coker in 2007 rape case

RELATED: Story chronicles the impact on Coker’s life

ONLINE EXTRA: Stafford Commonwealth’s Attorney Eric Olsen’s letter notifying Coker’s legal team that he will not seek to retry Edgar Coker.

Edgar Coker’s legal ordeal is over.

Stafford Commonwealth’s Attorney Eric Olsen notified Coker’s legal team over the weekend that he won’t seek to retry Coker in a 2007 case in which the girl who accused him of rape recanted.

Olsen’s decision followed word from the Office of the Virginia Attorney General that it was not appealing the Feb. 10 ruling of Judge Designate Jane Marum Roush that exonerated Coker.

Roush, a Fairfax County judge appointed to the case after Stafford’s circuit judges recused themselves, ordered Coker’s rape and breaking-and-entering convictions vacated, and his name removed from the Virginia Sex Offender Registry.

Roush’s order resulted from her finding that court-appointed attorney Denise Rafferty of Stafford violated Coker’s constitutional right to effective counsel when his case was in juvenile court.

As part of her ruling, Roush gave the attorney general’s office and Coker’s legal team 21 days to appeal anything in the ruling.

The deadline for the appeal was today.

Since January 2009, Coker has been represented by a team of attorneys with the Innocence Project at the University of Virginia School of Law, U.Va. School of Law’s Child Advocacy Clinic and JustChildren/Legal Aid of Charlottesville.

The attorney general’s office notified Coker’s team and Olsen of its decision at the end of last week.

“After thoroughly reviewing the case and the applicable law, and after consulting with Stafford Commonwealth’s Attorney Eric Olsen, the commonwealth will not appeal Judge Roush’s decision,” Michael Kelly, spokesman for Attorney General Mark Herring, said on Sunday.

Olsen had 60 days from Roush’s ruling to decide whether to attempt to retry Coker in a case that began on June 4, 2007, when Michele Sousa returned to her Aquia Harbour home to find Coker in the kitchen and her 14-year-old daughter getting dressed in her bedroom.

Three days later, Coker, then 15, was charged with rape, breaking and entering with intent to commit rape, and abduction.

On Nov. 23, 2007, days after Coker’s final juvenile court hearing in which he was sentenced to an indeterminate period of confinement in the Department of Juvenile Justice and ordered to appear on the state’s Sex Offender Registry for life, his accuser told her mother she had lied about the rape to avoid getting into trouble.

She said she and Coker were friends, she had invited him into the house and the sex was consensual.

After that, Sousa began looking for ways to rectify what she considered an injustice.

In a March 1 letter to Coker’s team, Olsen said he had waited for the attorney general’s office to reach its decision before announcing his own.

“My office will not seek a retrial of Mr. Coker for any offense related to the convictions which have now been vacated/reversed by Judge Roush’s decision in the habeas suit. As far as I am informed this will conclude all of the proceedings involving Edgar Coker,” Olsen wrote in the letter.

He said he would notify the juvenile court of his decision.

Edgar Coker, who now lives in Orange, was working on Sunday and was not available for comment. His mother, Cherri Dulaney, was relieved that the attorney general and Stafford prosecutor decided not to pursue her son any longer.

“It’s the only thing they’ve got right throughout this whole thing,” Dulaney said.

Coker’s attorneys felt the decisions were appropriate.

“We’re really pleased that both the attorney general and the commonwealth’s attorney made the right decision and it’s over for Edgar and his family,” said Angela Ciolfi, legal director for JustChildren. “We’re happy that Edgar can, at long last, move forward with his life.”

But Deirdre Enright, the Innocence Project’s director of investigations, said those decisions fall short.

“Obviously, Mr. Olsen’s decision not to re-prosecute Edgar Coker is the right one under the circumstances. We appreciate that he moved swiftly to bring finality to the relief ordered by Judge Roush,” she said.

But she added that Coker’s case illustrates problems inherent in Virginia’s legal system.

“We need to make the changes necessary to prevent something like this happening again, and to provide relief for the other Edgar Cokers out there, and they are out there,” she said.

“Credible recantations shouldn’t require six years of litigation.”

Enright added that 15-year-olds with no criminal record shouldn’t be threatened with trial as an adult.

It was that threat, put forth by then-Deputy Commonwealth’s Attorney Eric Olsen, that led Edgar Dulaney and Cherri Dulaney to accept Rafferty’s advice to have their son plead guilty to two of the three charges filed against him.

They couldn’t bear the risk of having him convicted in adult court and sent to an adult prison.

Coker, a lanky 6-footer with a gentle demeanor, spent part of his schooling in special education and has been diagnosed as “borderline mental functioning.” He also suffers from an inability to interpret nuanced situations, leaving him vulnerable in social settings, an expert testified in his July 2013 hearing.

In exchange for Coker’s guilty pleas to two felonies on Aug. 22, 2007, Olsen dropped the third and let the case remain in juvenile court. However, Olsen later pressed to have Coker listed on the Sex Offender Registry.

On Feb. 10, Roush issued a 22-page ruling that delineated defense attorney Rafferty’s failures in representing Coker.

Among the shortcomings Roush listed were that Rafferty failed to research her client’s intellectual abilities or listen to his taped interview with a detective and that she failed to investigate the accuser’s reputation for truthfulness.

Roush also rejected Rafferty’s claim that Coker had confessed to her.

“A lot of the relevant and exculpatory information that we uncovered post-conviction was easily available to both law enforcement and to the defense attorney,” Enright said. “I presume that if all the parties had reviewed that information then, all of this could and would have been avoided.”

Matthew Engle, the Innocence Project’s legal director, said he’s been bothered by the attacks he’s heard about Coker’s accuser and wanted to set the record straight.

“In our view, [the girl] is not the villain here,” he said. “She was an emotionally troubled young kid who made a mistake. When she realized what happened, she worked to get it corrected.”

He noted that the girl never testified in court and didn’t realize what had happened until after Coker was sentenced.

The biggest problem was the legal hurdles it took to get a full hearing on the facts of the case, Engle said.

Two attempts to address it in Stafford circuit court failed before the Virginia Supreme Court ordered a hearing, which took place last July.

“If people want to be angry about something, they should be angry it takes six years for an innocent man to get a hearing,” Engle said.

“It’s not her fault that it has taken so long.”

Cherri Dulaney’s demeanor reflected the toll—including seven moves in less than seven years because of harassment—the ordeal has taken on the family.

She hopes to have a small family gathering later this week but doesn’t have the energy for a big celebration.

“It’s been a long road and I think we’re tired,” she said. “We will regroup and attempt to move forward the best way we can.

“It’s been so long and so hard, I’m still trying to figure out if it’s for real. It’s been a nightmare we never knew if we were going to wake up from.”

Pamela Gould: 540/735-1972