RICHMOND, Va. (WRIC) — Virginia Attorney General Jason Miyares does not want Mark Herring or his representatives to appear in court next week to support an innocence claim from one of the men serving life in prison despite being acquitted of killing a Waverly police officer in 1998.

Terrence Richardson and Ferrone Claiborne said fear of facing the death penalty in the killing of officer Allen W. Gibson led them to plead guilty to lesser charges in 1999 to avoid trial in state court. Prosecutors brought the case to federal court, where a judge sentenced them to life after the jury found them guilty of drug crimes but not guilty of murdering Gibson.

Before Herring left the attorney general’s office, Virginia backed the effort in a federal appeals court seeking to prove Richardson’s innocence. Miyares’ office sent a letter to the Virginia Court of Appeals to reverse the state’s position in the case, leading the attorney for both men to ask the court to order Herring or his team to argue in support of the state’s earlier position during a Feb. 22 hearing.

The attorney general’s office filed a motion Tuesday to have the court strike the request, arguing they were not properly notified of the motion in accordance with rules of the Supreme Court of Virginia.

“Furthermore, there is no legal or factual basis upon which this Court should allow Petitioner to pick and choose which arguments the Commonwealth of Virginia advances in this matter or which counsel represent the Commonwealth,” Brandon Wrobleski, special assistant to Miyares for investigations, wrote.

Jarrett Adams, the attorney for Richardson and Claiborne, filed a response asking the court to deny Miyares’ motion to strike the request, claiming the attorney general’s office is “engaging in unnecessary motion practice” and has misinterpreted his letter to the court as a motion.

“Second, the Commonwealth should not be permitted to have its cake and eat it too,” Adams wrote to the court Wednesday. “If the Commonwealth unnecessarily interprets the Petitioner’s February 7 Letter as a motion, then, the Petitioner and this Court should also interpret the Commonwealth’s February 4 Letter as an improperly filed motion for supplemental briefing and/or supplemental briefing.”

A spokeswoman for Miyares did not respond to 8News’ request for an interview or comment regarding the case.

“This isn’t about finding the truth. This is about burying it,” Adams told 8News on Thursday. “They [Miyares’ office] do not want the truth of what happened to officer Gibson to come out.”

Adams reiterated his belief that the case is being politicized by the attorney general’s office. Miyares, a Republican, defeated Herring, a Democrat who was seeking a third term in office, in the 2021 elections.

Adams said his office has been in contact with the members of Herring’s office who worked on the case and helped prepare the state’s 78-page brief supporting Richardson’s innocence claim. He added that he has no issue if the court decides they don’t need Herring to appear in court or if they consider Miyares’ reversal of the state’s position.

“I’m all for it. I’m not just representing Terrence Richardson and Ferrone Claiborne, I also represent the truth,” Adams said.

Initially facing capital murder charges in Sussex County Circuit Court, Richardson received a five-year sentence for involuntary manslaughter and Claiborne pled guilty to being an accessory after the fact.

In 2001, federal prosecutors pursued charges of drug trafficking in connection to Gibson’s death. The jury in federal court found the men guilty of the drug crimes but acquitted them in the murder. The judge in the case, however, decided to use their pleas in state court to sentence them to life.

Adams filed an innocence petition to clear Richardson’s convictions in state court. Claiborne pled guilty to a misdemeanor in state court, so his charges are not eligible for a writ of innocence. Adams asked the court to have Herring or his team included in oral arguments if Miyares was permitted to reverse the state’s position.

Richardson and Claiborne have exhausted their appeal efforts, including in the Supreme Court, and former President Barack Obama also denied their executive clemency request when he was in office.

The men contend they did not kill Gibson with his own handgun over two decades ago in a wooded area behind an apartment complex and questions have emerged over their case.

Gibson told a state trooper who arrived at the scene after he was shot that the gun “just went off” during a struggle with two men, one of which had dreadlocks. Richardson and Claiborne did not have dreadlocks at the time of their arrest and the lawyer asserts there are other suspects who could be responsible.

Crissianna Gibson, the daughter of officer Gibson, said in a statement last week provided by Miyares’ office that she always believed that Richardson and Claiborne were guilty and she was “shocked and hurt” by Herring’s decision to back Richardson’s innocence claim. Efforts to reach Herring were unsuccessful on Thursday.

When he took office, Miyares fired and replaced all of the members of the four-person Wrongful Conviction Integrity Unit. The current unit is being led by Theo Stamos, a Democrat and a former commonwealth’s attorney in Arlington, according to Miyares’ office.

Arguments in the case at the Virginia Court of Appeals are set for Feb. 22. After the hearing, the court could grant Richardson’s request or deny his petition. The court could also order an evidentiary hearing, as Herring’s office requested, for more facts to be discovered in the case.