Washington Post, Nov. 10 2000
Virginia Attorney General Mark L. Earley (R) has formally opposed the Virginia Supreme Court plan to eliminate the state's shortest-in-the-nation deadline for death row inmates to introduce new evidence of their innocence.
In a letter hand-delivered to the court Wednesday, Earley said that the proposal "very well may be unconstitutional" and that it infringes on matters best left to the governor and legislature. More practically, he wrote, an open-ended deadline "would be exploited to delay and thwart execution dates. . . . The devastating impact of such abuse on the victims' surviving family and friends cannot be overstated."
Virginia has drawn national criticism for giving death row inmates just 21 days after sentencing to ask for a new trial based on new information. Last month, the state's generally conservative high court surprised the legal community by setting out a new rule that would allow death row inmates to bring newly discovered evidence of innocence directly to the justices with no time limits.
The court set a Nov. 13 deadline for public comment on the rule change, and lawyers, politicians and interest groups on both sides of the death penalty issue are rushing to meet it. Gov. James S. Gilmore III (R) is studying the proposal, said spokeswoman Lila White.
Earley's office handles all capital case appeals, so his opposition is not surprising, but it nonetheless carries significant weight, observers said. A number of commonwealth's attorneys and victims groups have weighed in against the proposed rule change.
But the defense bar has been generally favorable.
"It's a much needed and much welcome change. If you're going to exact the ultimate penalty, you had better be right," said Marvin D. Miller, president-elect of the Virginia College of Defense Attorneys. "The only people who would oppose it are not interested in a fair and open process."
Earley may be correct about his assessment that the rule would use an unconstitutional method of handling claims of innocence, said University of Richmond law professor Ron Bacigal. The justices' plan treats these claims as separate from the standard appeals process, and Earley argues that this method would violate the state's limits on the kinds of new--as opposed to appellate--cases that the Virginia Supreme Court can hear.
"Technically, [Earley is] right," Bacigal said, but he added that the problem could easily be surmounted if the inmate were allowed to bring the new evidence to a trial court instead.
Earley's concerns about unnecessary delays in the capital appeals process were echoed by prosecutors and victims groups. The existing appeals process and the final appeal to the governor for clemency provide more than enough protection against executing the innocent, they said.
"I oppose . . . an open-ended judicial process that will take away the only thing that victim survivors and their families have that is of any comfort: a sense of finality and that justice has been done," said Stanley Rosenbluth, the Arlington man who founded Virginians Against Crime after his son and daughter-in-law were murdered.
Rosenbluth and Alexandria Commonwealth's Attorney S. Randolph Sengel both suggested that 60 or 90 days might be enough time to bring new evidence.
The Virginia Supreme Court proposed the rule change two weeks after Gilmore pardoned Earl Washington Jr., who was sent to death row for a 1982 rape and murder in Culpeper. New DNA testing found no trace of Washington at the crime scene.
Meanwhile, the defense bar wants the justices to go even further. The current proposal limits the special appeals to inmates who can show "substantial likelihood of actual innocence." But Miller said his group will suggest changing that wording to include inmates who have new evidence that "substantially undermines confidence in the verdict." That standard comes from existing U.S. Supreme Court decisions and may be somewhat more favorable to inmates than the Virginia court's version.
The Virginia Supreme Court can modify or scrap the proposal in light of the comments it receives. But the justices are unlikely to have the last word.
The legislature can change or overrule the Supreme Court on this kind of issue. Several members and the State Crime Commission are moving forward with plans to bring the 21-day issue up when the General Assembly comes back into session in January. A bill to extend the deadline to 3 years
passed the House of Delegates but died in the Senate last year.
21-day rule blocks truth in death penalty appeals
Editorial, Daily Press, March 14, 20000
What is Virginia afraid of?
The General Assembly rejected a proposal that would have given death row inmates a better chance to overturn unjust convictions. Lawmakers acted as if they were afraid to allow defendants the right to undo a wrong.
In death penalty verdicts, following sentencing, Virginia prisoners are allowed 21 days to present exculpatory evidence -- the type of proof that could show they were innocent. The rule is the most restrictive in the country.
Lawmakers must know that recent technological breakthroughs are solving old crimes. Within the last year, DNA evidence has helped nail suspects in the sexual assaults of schoolgirls in Newport News; the 1983 murder of a 13-year-old boy in Hampton; and the 1980 slaying of a Hampton woman.
Conversely, though, DNA evidence can also exonerate people who were convicted though innocent.
No one wants to put the family and friends of victims in a never-ending court drama. In serious cases, however, defendants deserve more than 3 weeks to submit significant new evidence.
The Assembly refused to change the deadline from 21 days to 45 days. The fact is, for this change to be meaningful, 3 years is more reasonable.
Judges, defense lawyers, prosecutors and police can make mistakes, and innocent people can be convicted. Without inviting frivolous appeals, the Assembly should open the door to correcting those mistakes in the next session.
The Roanoke Times, Editorial, April 11, 2000
Virginia's troubling death-penalty record
A recent report adds statistical and analytical weight to criticisms of the way the state administers the death penalty. The General Assembly should heed its findings.
Texas still exceeds Virginia in the number of people subjected to capital punishment, but the commonwealth falters abysmally in the service of justice in the way that it administers the death penalty.
Several organizations opposed to capital punishment on Sunday released a report offering statistical reinforcement of contentions that those convicted of capital crimes in Virginia face an overwhelming gantlet of legal obstacles to a fair trial. Among them are excessively restrictive legal procedures; capricious application of the death sentence according to race and geography; and an imbalance in the competence and resources of defense counsel at both the trial and appeals levels.
The report was released by the American Civil Liberties Union of Virginia, the National Association for the Advancement of Colored People of Virginia, the Office of Justice and Peace of the Catholic Diocese of Richmond, Virginians for Alternatives to the Death Penalty and the
Virginia College of Criminal Defense Attorneys. Such organizations may be the "usual suspects" as opponents of capital punishment, but the research presents credible findings that deserve thorough scrutiny by the General Assembly.
Perhaps the most egregious aspect of Virginia law is what can only be described as a hostile judicial environment for trying capital cases. New evidence discovered after trial must be submitted within 21 days, and may not be considered afterward even if it proved a person's innocence. In addition, the report said, appellate courts have been erratic in applying
standards of reversible trial errors.
Among the states, the average rate of reversal of death sentences on appeal is 40 %, and even Texas reverses 28 %. In the 22 years since reviving capital punishment, the Virginia Supreme Court has reversed only 8 %. Consequently, Virginia governors - to their credit - lead the nation in halting executions, because of doubts about guilt or concerns about mitigating or exculpatory evidence that trial courts did not allow juries to hear.
About 95 % of capital defendants qualify for court-appointed counsel, but the state's monitoring and assurance of competent legal representation is particularly deficient. In fact, the report was critical of the entire record-keeping process of the state, which it contended prevents a systematic, objective assessment of the administration of the death penalty.
Despite the clear predisposition of the groups challenging Virginia's capital-punishment procedures, their report lends statistical and analytical credence to an obviously distorted system that advocates of fairness have been criticizing for years but without the depth of
empirical data contained in the study.
Legislators should not be content with the ethic that has guided many grizzled combat veterans: Kill 'em all, and let God sort 'em out.
|
