The State’s Flawed Case

On March 15, 1976, to satisfy the need for corroboration of the plea, the circuit court heard a summary of the state’s evidence against Mr.Grimm. In addition to testimony from police and  Mr. Grimm’s confession, the state presented forensic evidence analyzed by Ms. Burton. 

This evidence included Ms. Burton’s lab report with results from microscopic testing of the eight   hairs found on Mr. Grimm’s car floorboards and on a child’s sock in the car, as well as on a pea coat found in his apartment. Ms. Burton visually inspected slides made from swabs of the pharynx, epiglottis, esophagus, nasal passage, and oral cavity and a towel recovered from Mr. Grimm’s car that had a stain indicating the presence of what she believed to be sperm. Dr. Fierro, who performed the autopsy, also testified, erroneously, that there was spermatozoa on a “thick white gelatinate material” in C.H.’s mouth. 

After hearing this forensic evidence and the testimony from officers who obtained Mr. Grimm’s confession, the circuit court accepted Mr. Grimm’s guilty pleas on all three counts and sentenced him to life in prison on the murder and abduction charges, plus 10 years on the sodomy charge. 

New Evidence of Mr. Grimm’s Innocence

After years of post-conviction litigation, in April 2023, attorneys from the Innocence Project and Arnold & Porter submitted a petition for writ of actual innocence before the Virginia Court of Appeals, seeking to vacate Mr. Grimm’s murder conviction based on newly discovered DNA and non-biological evidence.

The Virginia Office of the Attorney General joined the petition. On June 18, 2024, the Virginia Court of Appeals granted the petition, based on the newly discovered evidence, including: 

DNA Evidence: In 2011, the Virginia Department of Forensic Science performed DNA analysis of the eight hairs found in Mr. Grimm’s car, a sock in the car, and a peacoat in his apartment that were previously attributed to C.H. Through this testing, C.H. was excluded as the source on six of the eight hairs. Testing on one of the two remaining hairs was inconclusive, and the other lacked sufficient mitochondrial DNA to make a meaningful comparison. Thanks to changes in Virginia law, the two remaining hairs were sent to a private, accredited laboratory that was able to analyze the two remaining hairs. C.H. was excluded as the source of both the hairs, and they were determined to be from different sources. 

Post-conviction DNA analysis also eliminated Mr. Grimm as a possible contributor of the genetic material detected in the swabs taken from the epiglottis, esophagus, oral cavity, and non-sperm fractions of the pharynx swabs. Further, examinations by the Virginia Department of Forensic Science and two leading private labs of the white substance that had been collected on swabs found no spermatozoa, disproving the medical examiner’s theory of the case. 

Toxicology Report: Dr. Jeffrey Brent, a board-certified medical toxicology

physician with a Ph.D. in biochemistry, reviewed the toxicology reports developed during

the autopsy of C.H. In conducting this review, Dr. Brent considered the quantities of the substances present in C.H.’s system, the amount of food identified in his stomach, and his physical size. When all these factors are taken together, Dr. Brent concluded it was more probable than not that C.H. ingested the alcohol, chlorzoxazone, and acetaminophen found in his system at least 90 to 150 minutes prior to his death. This timeline of events would have made it impossible for Mr. Grimm to have committed the crime, since it was undisputed that he was alone in his apartment within 75 minutes after the mother of the child claimed she had last seen her child walk off alone into the woods. 

A Long Fight to Prove Innocence Post-Conviction

The campaign to prove Mr. Grimm’s innocence was fought in the courtroom and the statehouse. 

Mr. Grimm initially requested DNA testing in the late 1980s, but faced a number of hurdles. At that time, Virginia law did not allow post-conviction DNA testing, and a writ of innocence for new biological and non-biological evidence was only available to people who went to trial, not those who accepted a guilty plea, as Mr. Grimm did. 

Years of lobbying legislators in Virginia, an effort led by former Innocence Project Directors of Policy Michelle Feldman and Rebecca Brown, the Mid-Atlantic Innocence Project and the Innocence Project at the UVA School of Law, led to changes in Virginia law. 

Because of their efforts, Virginia permitted access to post-conviction DNA testing, lifted the guilty plea bar for those seeking a writ of innocence for new biological and non-biological evidence, and allowed people accused of crimes to get testing at private, accredited labs. Without these reforms, Mr. Grimm would have been unable to make his case for innocence. 

Mr. Grimm’s exoneration took decades of painstaking investigation and litigation by a long list of attorneys at the Innocence Project and Arnold & Porter, in particular Ms. Friedman and former Innocence Project attorney Olga Akselrod. These two lawyers spent a combined two decades working on behalf of Mr. Grimm. Innocence Project’s Senior Staff Attorney Tim Gumkoski also joined Ms. Friedman. More recently, Mr.Neufeld and Innocence Project’s Director of Special Litigation Vanessa Potkint added their expertise to the Innocence Project team. Arnold & Porter collaborated with the IP for many years, led by Partner Jeffrey Horowitz and now retired Partner Glenn Pogust, Senior Attorney Robert Grass, and Senior Associate Angelique Ciliberti.

From 2008 to 2017, the University of Richmond School of Law’s Institute for Actual Innocence, directed by Professor Mary Tate, also supported the legal efforts. 

“Working to exonerate Mr. Grimm was truly a team effort involving not only our Arnold & Porter team, but also multiple attorneys over the years from the Innocence Project, and could never have been accomplished without the unwavering support of Marvin’s sisters and entire family.” said Mr. Horowitz. 

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Innocence Project

The Innocence Project works to free the innocent, prevent wrongful convictions, and create fair, compassionate, and equitable systems of justice for everyone. Our work is guided by science and grounded in anti-racism. For more information, please visit www.innocenceproject.org.  

Arnold & Porter

Arnold & Porter combines sophisticated regulatory, litigation, and transactional capabilities to resolve clients’ most complex issues. With over 1,000 lawyers practicing in 15 offices worldwide, we offer deep industry experience and an integrated approach that spans more than 40 practice areas. Through multidisciplinary collaboration and focused industry experience, we provide innovative and effective solutions to mitigate risks, address challenges, and achieve successful outcomes.

The Virginia Department of Health is continuing its forever hunt to find the amount of per- and polyfluoroalkyl substances, known as PFAS, present in the state by testing for them in water systems serving small and disadvantaged communities. 

“We suspect they haven’t done PFAS monitoring yet, and so they don’t know what they’re up against,” said Robert Edlemen, director of technical services at the office of drinking water at VDH, in an interview. “And certainly we don’t either.”

PFAS are the thousands of different chemicals used in several household products ranging from winter jackets to cookware to firefighting foam because of the tight chemical bond they possess to repel water and heat. 

Because of that tight bond, the chemicals are nearly impossible to break down, meaning they end up in landfills, can leak into groundwater, and then get soaked up by clouds that send them back into the environment and food sources through rainfall.

The new testing comes as part of the federal government passing final PFAS rules in April to enforce a 4 or 10 parts per trillion maximum contaminant levels, or MCL, for a limited number of types of PFAS. One part per trillion is the equivalent of 1 drop of water in 20 Olympic-sized swimming pools.

The new standards will reduce PFAS exposure for roughly 100 million people, prevent thousands of deaths, EPA Administrator Michael Regan said when announcing the new rules this spring. 

The chemicals have been linked to serious health problems including cancers and reproductive and fetal development issues.

When issuing the rules, the U.S. Environmental Protection Agency created a grace-period for public water systems to monitor levels of PFAS chemicals until 2027 before needing to treat any exceedances of the MCLs in drinking water starting in 2029.

Types of systems

Nationwide and in Virginia, public water systems, or waterworks, are defined as those serving 25 people or more a day for 60 days or more a year. 

In Virginia, there are 1,072 community systems that serve towns, cities and counties and about 500 non-transient, non-community systems that serve schools or an office building where people return day-after-day but don’t live. 

There’s also 1,245 transient non-community systems, which serve restaurants, a campground or a highway rest-stop that sees groups of people coming and going rather than live in or repeatedly return to the same area.

The community systems and non-transient, non-community systems are subject to the new rules. The transient, non-community systems do not need to follow the rules, with the thinking that the same people aren’t exposed to the potential contaminants from the same system over and over again. 

Private wells, which are unregulated in Virginia and primarily serve individuals’ homes in rural, mountainous areas, are not subject to the rules either.

Previous testing

In addition to some sampling the Virginia Department of Environmental Quality has done, the Virginia Department of Health conducted two phases of testing across Virginia’s publicly regulated water systems.

The first of those happened in 2021 with 45 of 50 systems that VDH reached out to agreeing to participate. The effort targeted larger systems serving about 5.25 million of the state’s about 7 million population, Elemen said.

Phase II, in 2022 and 2023, sampled 274 systems which were smaller community systems, and a handful of non-transient, non-community systems that were near areas that included known sources of PFAS, such as large airports that may use firefighting foam with the chemicals, and unlined landfills. 

As a result of that sampling, PFAS was found to be present in the Roanoke, Newport News and Potomac River areas.

New testing

Now, in Phase III, VDH is sampling small and disadvantaged communities, which include the “vast majority” of systems in Virginia, Edelman said. These systems include those serving populations of less than 10,000 and are deemed burdened under the EPA’s Environmental Justice screening tool. 

The effort is expected to collect about 400 samples in all areas of the state over the next two or three months, Edelman said.

“If you consider that we have over a thousand community water systems, 400 samples isn’t enough to get the job done,” said Edlemen. “But it’s the next step in making progress identifying the PFAS levels across the state…it’s a doable step.”

Some of the about $27 million the state received from the federal government for 2022 and 2023, and $13.5 million this year can be tapped into to offset the costs of testing, Edelman said at a recent waterworks advisory committee meeting.

More testing

The testing is all seen as a way to get a handle on understanding where PFAS are in Virginia before beginning to figure out where the substances are coming from. 

Chris Pomeory, attorney for the Virginia Municipal Drinking Water Association that represents waterworks that serve about 3 in every 4 Virginians, said in a statement that the “VMDWA is pleased to know that VDH intends to assist small disadvantaged communities with PFAS testing, which will be helpful for determining where PFAS testing is needed.”

The testing of the smaller systems “absolutely needs to be done,” added Betsy Nichols, vice president of the Potomac Riverkeeper Network, a local environmental group, since those might be in rural areas that are more likely to use biosolids from wastewater treatment plants as fertilizer. 

The level of exposure in private wells also needs to be understood, Nichols added. She suggested the state could set up a grant program to help users of those systems conduct the testing. 

It costs her group about $90 to $100 to conduct small tests, which require strict protocols for handling and storage because of the ease of outside particles contaminating the test subjects, Nichols said.

“Maybe [the wells] are all fine, but you don’t really know until you test,” Nichols said.

Also of importance is knowing where PFAS is coming from, such as carpet manufacturers, metal finishers and pesticides that use them, in order to “shut off the tap” and begin using alternatives, Nichols said.

“If we don’t start moving more quickly, we won’t have made all the changes that are needed to be implemented when that deadline hits,” Nichols said.

This past session Republican Gov. Glenn Youngkin signed a bill setting up a process for the Department of Environmental Quality to identify “significant” sources of PFAS. The bill passed despite some advocates initially wanting a more direct report from those using the chemicals to identify how they were introduced into the environment in the first place. 

VDH will also be embarking on a $500,000 study, due to the General Assembly by Dec. 1, to determine how much it may cost to have waterworks make upgrades to treat PFAS, which could cost millions.

RICHMOND, Va. — Andrew Cortez cares deeply about the Chesapeake Bay.

“The Chesapeake Bay is our natural heritage,” Cortez said. “A healthy bay helps everyone.”

The retired law enforcement officer was an investigator for 36 years, working to keep the Chesapeake in check with different agencies as a special agent with U.S. Fish and Wildlife.

He now has concerns about the group meant to do just that: the Virginia Marine Resources Commission, which oversees Virginia Marine Police.

“One of the things that really struck me is the amount of money they’re spending on what I would consider to be toys, unnecessary squandering of public money,” Cortez said.

He’s talking about the recent purchase of a 2024 Pathfinder, a boat commonly used for fishing, costing $183,529.16.

Documents he received through a Freedom of Information Act Request, which he shared with CBS 6, show the purchase was made on March 5. The paperwork said it would be needed by April 4, 2024.

“They’ve got these rocket launchers; they’re sort of a holder for rods. For fishing rods,” Cortez said. “And it’s got the full fisherman package on it. It’s not something that would be used for law enforcement or for fisheries research.”

VRMC told CBS 6 that the vessel was purchased through the competitive bidding process in compliance with all state laws and policies.

“This vessel will be deployed in the Middle Area Law Enforcement Region for the Virginia Marine Police as a daily patrol vessel to enforce Virginia fishing and safe boating laws, as well as search and rescue operations. It has not been deployed in the field for law enforcement use yet because we are in the process of up-fitting it with law enforcement specific equipment (i.e. blue lights, siren, overt police markings),” Zachary Widgeon, VMRC’s Director of Communications sent CBS 6 in an email statement.

WTVR

Widgeon said the fishing rod holders will be removed, along with recreational fishing features that do not have a function for law enforcement patrol.

“Any attached fishing rod holders or live wells are standard on these models when they are delivered to the dealership before sale and there is no avenue for buyers to purchase these hulls without this equipment pre-installed. Fiberglass hull vessels are not custom built for each buyer and are adapted and upfitted from a pre-formed model to adapt them to law enforcement-specific needs and uses,” Widgeon continued in the email.

The response goes on to say: “This 2024 Pathfinder met the Statement of Need at a price that was reasonable in line with industry standards, superfluous features that do not affect its usage as a law enforcement patrol vessel are not relevant or considered in the purchasing process.”

“This is wasteful for an agency with a budget about the size of the Virginia Museum of Fine Arts,” Cortez said.

That’s not the only thing Cortez is concerned about.

There’s also been a drop in VMRC-related arrests and subsequent convictions.

Between 2017 and 2018, there were 1,202 arrests and 988 convictions, according to Virginia Marine Police Arrests/Convictions data.

Between 2021 and 2022, there were 667 arrests and 533 convictions.

Based on the numbers, Cortez thinks that’s far too few.

“Their conviction rate is 73 percent, which is dismal,” Cortez said. “In wildlife law enforcement, marine law enforcement, it should be in the high 90s, because you’re catching people in the act.”

WTVR

Widgeon said in an email that conviction and arrest numbers have fluctuated in the time frame comparing 2017-2018 and 2021-2022.

“The disparity in total numbers between the 2017-2018 and 2021-2022 period comes from three categories: saltwater reactional license violations, Fisherman Identification Program (FIP) violations, and miscellaneous law enforcement (i.e. non-conservation violations, traffic, etc.),” the email reads.

Widgeon said the shift away from focusing on non-conservation violations, traffic offenses, recreational license violations, and FIP violations is based on an intentional shift in the way that the Virginia Marine Police leadership focused the patrol and enforcement efforts of officers.

“The Virginia Marine Police are the only law enforcement agency whose main charge is protecting Virginian’s marine resources and tidal waters, and so we should focus our efforts on that charge,” Widgeon said.

Widgeon said VMRC is giving officers more discretion in how they enforce the law.

“I have friends still in the agency,” Cortez said. “They tell me that about six officers write half the tickets. That’s kind of lopsided.”

Cortez isn’t the only one challenging the VMRC’s practices.

In April, the Virginia Police Benevolent Association sent a letter to the attorney general’s office, claiming Marine Police Officers were illegally recorded while in the workplace.

It also claimed several “police package” Dodge Durangos that were said to be used for “agency police usage” were going to non-sworn officers, costing thousands of dollars.

WTVR

Rich Goszka, a spokesperson for the association, shared paperwork with CBS 6 showing the purchase of Dodge Durangos going to Specialist/Agency Transporation Officer Jeremy Toth and Assistant Commissioner John Cosgrove.

Goszka worked with the Virginia Department of Game and Inland Fisheries for years.

“They’re supposed to provide law enforcement services by the Marine Police, rather than being used for civilian use, which takes away from services from the taxpayers,” Goszka said. “We’re going to expose whatever corruption is out there. Because that’s just the right thing to do.”

“This external complaint is currently being investigated by the Office of the State Inspector General. We cannot comment on this as it involves an administrative investigation, but we would like to state that the purchasing of vehicles at VMRC is done in complete compliance with the Department of General Services guidelines and that we are always receptive and cooperative with any outside inquiries into how VMRC operates in our administrative functions. VMRC operates in complete transparency as a state agency. We would direct you to the Office of the State Inspector General if you would like further information regarding this external complaint,” Widgeon said in an email.

The Attorney General’s Office told CBS 6 it is not commenting on the letter at this time.

WTVR

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Cortez expressed concerns to CBS 6 about a decreased number of hours spent inspecting and enforceming menhaden fishing regulations.

Menhaden is considered a vital resource to the Chesapeake Bay’s ecosystem.

According to VMRC, the following hours spent on menhaden enforcement and inspections conducted are as follows:

• 2015: 44.5 hours, 194 inspections
• 2016: 60.5 hours, 53 inspections
• 2017: 33.5 hours, 165 inspections
• 2018: 49.5 hours, 174 inspections
• 2019: 45.5 hours, 307 inspections
• 2020: 82.0 hours, 221 inspections
• 2021: 106 hours, 356 inspections
• 2022: 52.5 hours, 575 inspections
• 2023: 30.0 hours, 151 inspections

“It is worth noting that since 2015, with over 2,000 inspections having been conducted on the menhaden fishery in Virginia, no state fisheries violations have been found,” Widgeon wrote.
Last year, Chesapeake Legal Alliance (CLA), on behalf of the Southern Maryland Recreational Fishing Organization, filed a suit challenging the VMRC, saying the group allowed overfishing of menhaden.

Last November, a motion made in Richmond City Circuit Court required VMRC to comply with Virginia fisheries law “to rely on the best available science to set responsible menhaden harvests and avoid acting solely to protect the economic interests of a single commercial entity,” according to CLA.

According to a study on osprey and its ties to menhaden, by Dr. Bryan D. Watts, Director of the Center for Conservation Biology at William and Mary, “menhaden harvest policy has become a political mind field with special interests on all sides.”

A study by Phil Zalesak, the President of South Maryland Recreational Fishing Organization, says “the latest scientific data indicates that there are insufficient Atlantic menhaden in Virginia waters during the Atlantic menhaden reduction fishing season to sustain life for fish and birds dependent on Atlantic menhaden for their survival.”

“Although the statement that ‘Atlantic menhaden are no overfished and overfishing is not occurring’ may apply to the Atlantic Coast,’ it does not apply to the Chesapeake Bay,” Zalesak wrote.

Widgeon told CBS 6’s Zalesak’s study is not a peer-reviewed study.

“The most recent Atlantic menhaden stock ecological assessment and update showed that the stock was not overfished and not undergoing overfishing,” Widgeon wrote, citing data from 2020 and 2022. “THE ASMFC has discussed a Chesapeake-Bay specific stock assessment to recommend a scientifically supported Chesapeake Bay Cap but has prioritized further refining the ecological reference points model in the next benchmark stock assessment, as this represents the best available science for the coastwide Atlantic menhaden stock. With the lack of Chesapeake Bay-specific assessment and no concreate evidence that localized depletion is occurring in the Bay, ASMFC and the VMRC continue to maintain Chesapeake Bay Cap as a precautionary conservation measure to protect Chesapeake Bay nursery grounds,” Widgeon wrote.

Originally reported by the Virginia Mercury, Virginia lawmakers recently delayed deciding on conducting a study on if menhaden in the Chesapeake Bay are declining or not.

Cortez also shared concerns about several board members having special interests and not recusing themselves in cases where their businesses may benefit from commission decisions.

Associate Commissioner A.J. Erskine joined Cowart Seafood Corporation and Bevans Oyster Company in 2005 to develop oyster aquaculture programs, according to VMRC. Associate Commissioner Lynn Kellum is the President of Ampro Shipyard & Diesel.

“While the Code of Virginia does not spell out circumstances that a board member must recuse themselves in, we have full confidence that Associate Commissioners will and have recused themselves from participating in regulatory processes when they have a reasonable conflict of interest in-line with all ethical considerations. Associate Commissioners actively consult attorneys versed in conflict of interest and take all steps prudent to avoiding to avoiding a conflict of interest in their duties. We expect and are confident that Associate Commissioners operate in full transparency during commission meetings,” Widgeon wrote to CBS 6.

Depend on CBS 6 News and WTVR.com for in-depth coverage of this important story. Anyone with more information can email newstips@wtvr.com to send a tip.