This story originally published in 2024, but has been updated to reflect former President Joe Biden’s final clemency action in the days before he left the White House.
The “Waverly Two” are among those set to be released this week. Terence Jerome Richardson and Ferrone Claibone were in the midst of an evidentiary hearing to clear their names in the drug-related homicide of a Waverly, Virginia, police officer. Biden granted over 2,500 commutations to individuals serving life or lengthy sentences in federal prison for a conviction related to the guidelines created within the 1994 crime bill, which he helped sponsor.
SUSSEX, Va. — Before the theme song to another Saturday morning cartoon blared from the TV, Shannequia Gay’s aunt urged her and her little cousin to go outside to play. The pair hopped on their bikes and rode around the Waverly Village Apartments in Virginia.
As the spring air brushed across their cheeks, the echoes from the kids’ giggles were silenced shortly after 11:14 a.m. when the 9-year-old witnessed the murder of a police officer that took place in the woods behind the complex.
Hours later, on the night of April 25, 1998, investigators asked Gay to look through a photo lineup to identify a man she said she saw struggling with police officer Allen W. Gibson. She said a man with locs pulled back into a ponytail was wearing a white T-shirt that she later saw stained with blood. Her account was documented in cursive on three pages that was written by a law enforcement official with the Sussex County Sheriff’s Office. Her signature was handwritten, too, and seemed to match another signatory.
“That’s my name. I didn’t even know I could write in cursive at that age,” the now 34-year-old told a Sussex Circuit Court judge during a crucial hearing last month.
In the hours after the first and only on-duty fatal shooting of a police officer in Waverly, a small town about an hour away from Richmond, Terence Jerome Richardson and Ferrone Claiborne were a part of a round-up of Black male suspects police gathered in the area. Waverly is a suburban-rural-mixed town with a population of nearly 2,700 made up mostly of Black and white residents, according to the U.S. Census Bureau.
Richardson and Claiborne both maintained their innocence, but after a pretrial hearing, they were charged with capital murder which meant they were facing the death penalty. Afraid of trying their luck with a jury, they took a plea deal in a Virginia court to involuntary manslaughter charges. The two were later tried in federal court, where they were convicted on drug charges but were acquitted by a jury of murder. But here’s where their story took a strange turn.
The judge in the federal case put aside the jury’s acquittal and instead sentenced the pair to life in prison. The judge, Robert E. Payne, used a controversial legal precedent and took Richardson and Claiborne’s guilty plea in state court to apply it to the federal case.
Decades later, Richardson is hoping to finally be free. After the two-day hearing in May, he learned on his 53rd birthday that he’s allowed to use newly discovered evidence to continue his 26-year legal battle to overturn his federal and state convictions.
Gay, her statements, as well as other evidence that named another suspect in Gibson’s death, had been hidden from prosecutors and defense attorneys for nearly two decades. Without those key pieces of evidence, attorneys for Richardson and Claiborne in their state murder case were stifled from putting on their best defense.
In 2018, Jarrett Adams, an attorney for Richardson and Claiborne, filed several petitions in Virginia courts on behalf of Richardson that rose to the state’s Supreme Court. An evidentiary hearing was ordered to prove that previously suppressed evidence can now be considered to prove Richardson’s innocence. Claiborne’s case will be handled separately.
“While there is still more work to be done, this evidentiary hearing represents a significant victory for Richardson, Claiborne and the family of Officer Gibson, who deserve to know the truth about what happened,” said Adams, co-founder of Life After Justice, a legal advocacy nonprofit organization.
Prior to the May 22 hearing, attorneys for Richardson spent years trying to contact Gay about that fateful morning. Following a series of “I don’t remember” responses, the judge said that he did not fault the young woman for her memory being foggy.
Before Gay finished her testimony, she asked for Richardson to turn his face and look in her direction from the defense table. Wearing an orange prison jumpsuit, Richardson, with his mostly salt-and-pepper colored hair cornrowed straight back, obliged. He remained handcuffed throughout the several hours of witness testimony and occasionally took notes.
“Mr. Richardson, look at me. I always thought I would remember if I saw you,” Gay said as she leaned in closer from the witness stand. “Nope, I don’t remember if I saw you or not. I haven’t seen him.”
A guilty plea to avoid the death penalty
Richardson and Claiborne have been dubbed by journalist Kerri O’Brien as the “Waverly Two.”
The federal jury had convicted them on drug charges. Yet, “there were no drugs in the car, no drugs found on them and no drugs found at their home, and the whole case is built on a conspiracy to sell crack cocaine. So, where’s the drugs?” O’Brien questioned in 2018. And they were found not guilty of the murder. Yet, they were sentenced to life behind bars.
Police said Gibson was on patrol in the neighborhood that morning when he reportedly attempted to stop the pair from committing a drug trafficking offense. Gibson, a 25-year-old rookie officer and single dad, was shot with his own service weapon. Prosecutors said Richardson, then 27, was the shooter. Claiborne, then 22, was present for the alleged botched drug bust and that made him equally responsible for the homicide, according to heavily criticized felony murder laws.
The stakes were high for whoever would be prosecuted by the Sussex County commonwealth attorney.
As local and state law enforcement officers randomly rounded up Black men in the area and brought them in for questioning, Gay provided a description that matched Gibson’s dying declaration of what his assailants looked like.
Gibson was shot in the abdomen as he said he struggled for his gun with a tall, skinny Black male with locs. The alleged shooter was wearing a white T-shirt and an old blue baseball cap. The other alleged suspect was short, balding and had a medium-build, according to the last words spoken by Gibson and relayed during an October 1998 probable cause hearing by a Virginia state trooper who responded to the scene minutes after the shooting.
“The record does not reveal why they eventually became the chief targets of the investigation, as neither matched Officer Gibson’s description — Mr. Richardson was shorter than Officer Gibson and wore his hair in cornrows; Mr. Claiborne was tall and bald,” according to Richardson’s petition for appeal.
It wasn’t until 2017 when Adams thumbed through Richardson’s state investigation file and grew suspicious of scattered mentions of Gay. Adams then requested Richardson’s federal investigation file that contained thousands of pages of documents that were not turned over and were favorable for their defense in the state case.
Adams, who is an exoneree, filed a petition in April 2021 to prove Richardson’s innocence and submitted a pardon application with the Justice Department’s pardon attorney to get President Joe Biden’s attention. Former President Donald Trump denied his request to commute his sentence in 2017, records show.
Their petition received support from Gibson’s daughter and the former state’s attorney general. But under a new regime, federal prosecutors quickly changed their tune by continuing to stand behind the convictions. Throughout the first day of the hearing in May, Brandon Wrobleski, senior assistant to the Virginia office of the attorney general, did just that by spewing dozens of objections related to any of the unearthed evidence.
Richardson’s trial lawyer from 1998, David Boone, testified on behalf of his former client via video conference from his retirement home in Florida. Boone said if he had been privy to any of the newly discovered evidence, he would have crafted a different trial strategy and not encourage Richardson to take a plea.
Boone says he believed the former Sussex County Commonwealth Attorney J. David Chappell provided him with all forms of evidence his office had that was favorable to Richardson’s defense — also known as Brady material. Chappell also testified during the hearing and agreed that he believes he did turn over all the favorable evidence.
The retired defense attorney said he was aware of Gay, but his private investigator didn’t have luck speaking to her in person with her parents’ consent, and prosecutors didn’t have her listed as a witness. Also, Richardson’s alibi witness, Shawn Wooden, became the prosecution’s star witness, giving inconsistent statements about his own role in the alleged drug operation.
“If he went to trial it would be a great risk,” Boone said, adding, “This was 1998, in Sussex County. I have a young Black man accused of killing a police officer, a white police officer … knowing this was a capital murder case, it was too big of a risk.”
Richardson pleaded guilty in December 1999 to involuntary manslaughter and received a 10-year prison sentence. Claiborne pleaded guilty to a misdemeanor charge of accessory and served no jail time.
During Richardson’s guilty plea hearing, Chappell listed the evidence stacked against Richardson to prove his guilt to a jury. There wasn’t a mention of Gay, the photo array, or notes about an April 30, 1998, call to 911 from an anonymous “male caller” identifying another person who recently cut off his locs as a possible suspect.
Their backs were against the walls, Adams said, and if they didn’t take those pleas, they would not have been alive today to fight to clear their name. The state abolished the death penalty in 2021.
How does someone get sentenced for an acquitted charge?
In 1999, there was public outcry over Richardson and Claiborne’s lenient sentences. This was Richardson’s first conviction, and the case had several problems that Chappell said at the time may fall apart in front of a jury.
Less than a year into Richardson’s 10-year sentence, Gay was 12 years old. In October 2000, federal investigators showed up at her home to interview her about Gibson’s death. Her mom and dad were present in an adjacent room with a wall dividing them, according to court documents.
A month later, Richardson and Claiborne were federally indicted for conspiring to distribute crack cocaine and murdering Gibson when he attempted to stop them from allegedly negotiating a sale. Once that single bullet exited Gibson’s service weapon during a struggle and he died, Richardson and Claiborne became accessories to murder. This time, they took their chances with a jury. After an eight-day trial, they were acquitted of murder, but convicted of a drug trafficking charge.
During their September 2001 sentencing hearing, Judge Payne utilized a legal precedent — United States v. Watts — to sentence Richardson and Claiborne to life in prison by leaning on their guilty pleas from state court as a form of admission to their role in Gibson’s death.
“The Sentencing Commission and Congress … has concluded that any murder that occurs in the context of a drug trafficking crime merits punishment of the same effect as if it’s a first-degree murder charge,” the assistant U.S. attorney said during their sentencing hearing.
Had Richardson and Claiborne been sentenced for their sole federal conspiracy drug trafficking conviction, they would have paid their debt to society two times over with the charge’s 10-year minimum sentence terms.
The conversation surrounding the use of United States v. Watts has been awaiting action by the U.S. Supreme Court since it ruled in 1997 that judges are allowed to consider conduct that an individual was previously acquitted of for sentencing in a separately convicted case.
Last month, the U.S. Sentencing Commission, an independent agency that tracks federal sentencing practices, voted to restrict the controversial practice and will consider retroactively applying those restrictions for those currently incarcerated for an offense they were acquitted of.
Nailing down an exact number of the over 158,000 individuals currently incarcerated in federal prison who were convicted after trial and acquitted of one or more of the charges against them, is not simple. Since less than 1% of cases go to trial, the U.S. Sentencing Commission was able to narrow those figures down to 13,500 individuals who went to trial, were convicted and sentenced to prison.
The researchers then took a random sample of 10% of those incarcerated individuals and estimated that 1,971 were acquitted of one or more of the charges against them and might benefit from retroactive application of the amendment.
Richardson’s case may or may not have been included in that headcount, but it is an avenue Adams said his client will also pursue. Until those new rules are implemented, they’ll continue to wait on the judicial process. In the coming weeks, Virginia 6th Circuit Court Chief Judge William Edward Tomko III will issue his written opinion that will grant the newly discovered evidence into Richardson’s actual innocence appeal.
Yet, closure and some semblance of justice for the Richardson family is long overdue.
Iquisha Wyatt-Richardson was only 5 when her father was arrested, and her little brother was 2 by the time he was sentenced. As she got older, she often worried about her dad.
In 2015, she became a state prison guard where she saw and read about dozens of wrongfully convicted, mostly Black men, being released from prisons across the state. She was aware of how incarcerated people were often mistreated by her former colleagues and prayed her dad was spared by a prison guard like herself. She worked as a guard for seven years.
As the number of exonerees continues to grow each year, Wyatt-Richardson says that prisons may want to rethink and reform their punitive disciplinary policies to not be one-size fits all. Virginia has had 26 exonerations since 2015.
“We just want my dad to have justice so he can be out here and be able to, not get time back because he can’t do that, but to spend time with his family and everyone who has missed him all these years,” she said. “I have faith.”
This story has been been updated. Terence Richardson’s first name only has one “r,” not two as it’s written in court records. His attorneys are in the process of trying to correct that in official documents.