Today's Virginian Pilot publishes the editorial, "A fair, transparent path to justice."
For nearly two years, experts on Virginia's criminal justice system have reviewed policies and procedures used in capital murder cases. The goal: Not to eliminate the death penalty but to ensure that the process, from identifying suspects to execution, is fair.
On Thursday, the Virginia Death Penalty Assessment Team reiterated the need to adopt standards in the way police identify and interview witnesses and suspects. It said the facts uncovered by prosecutors must be available to the defense to bring to light any evidence that would clear suspects. It suggested that the state should be required to preserve biological evidence for the long term, and that DNA testing should be an option for defendants who didn't have access to it at trial.
The team recommended that the state set an execution date only after all state and federal appeals are exhausted, and that inmates be allowed a full year to file a habeas petition for relief.
These aren't the suggestions of a group of activist death penalty opponents; these are common-sense recommendations that would go a long way toward ensuring that the path to justice is transparent, that investigations are thorough and fair and that inmates have the option of forensic testing and time to appeal. These recommendations ultimately are likely to save the state money at trial and in appeals.
The study was part of an American Bar Association initiative assessing death penalty procedures in various states. The commonwealth's team, led by University of Richmond law professor and former federal prosecutor John Douglass, included criminal defense lawyers, a commonwealth's attorney, judge, state senator and a former attorney general and legislator.
The Staunton News Leader editorial is, "Virginia must end the death penalty."
Yesterday the American Bar Association released an assessment of Virginia’s death penalty. A bipartisan team of prosecutors, defense attorneys, a retired judge, a law school dean and former Attorney General Mark Earley studied the Commonwealth’s use of the death penalty and unanimously decided that “as long as Virginia imposes the death penalty, it must be reserved for a narrow category of the worst offenders and offenses, ensure heightened due process and minimize the risk of executing the innocent.”
The team made several recommendations about improving pretrial and post-trial procedures on capital and felony cases.
Our recommendation is that Commonwealth end the death penalty altogether.
Since the death penalty regained national use in the 1970s, Virginia has executed 109 people, second only to Texas. Not because it reduces crime. It doesn’t. Not because it saves money. It doesn’t, even without the lengthy appeals process.
Not because the public wants it. It doesn’t necessarily. Given the choice between life without parole and the death penalty, more than half of surveyed citizens choose imprisonment over the execution.
Even conservatives are quietly coming on board with abolishing the death penalty.
They find it goes against their pro-life and small-government beliefs. They understand that the justice system is by its nature flawed. And a flawed system will make mistakes. Virginia almost executed an innocent Earl Washington Jr. in 1985. Some would say the system worked as Washington wasn’t put to death. Meanwhile, faulty state law kept Washington, a mildly mentally retarded farm worker, in prison until 2001 for a crime he did not commit.
There is also expanded news coverage of the report. "ABA report cites flaws in Va. death penalty," is Larry O'Dell's updated AP filing, via the San Francisco Chronicle.
Virginia is more restrictive than other states in allowing capital murder defendants access to evidence against them, the report says. It recommends that the Virginia Supreme Court modify discovery rules, including by requiring prosecutors to disclose the identity and any prior statements of witnesses who will testify.
One of the biggest concerns, the report says, is a state appeals process that "emphasizes finality of convictions and death sentences over fairness." It recommends giving Virginia inmates more time to file state petitions and providing funding for defense attorneys to hire investigators and other experts. It also suggests starting the post-conviction review in the trial court rather than the Virginia Supreme Court, which has granted evidentiary hearings in only five cases since 1995.
Among the other recommendations:
— Require long-term preservation of DNA evidence and allow the defendant more opportunity for testing samples if there is evidence previous testing was unreliable.
— Create a position for an appellate specialist within the public capital defender's office.
— Revise jury instructions to make it clear that jurors never have to return a death verdict and to clarify common misconceptions about mitigating evidence.
— Update the state's definition of mental disabilities, allow a pretrial determination of whether a defendant is mentally disabled and ineligible for the death penalty, and prohibit the execution of a defendant who was suffering from a severe mental illness at the time of the offense.
Among the recent changes lauded by the panel are the accreditation of the state's crime labs and medical examiner offices and establishment of regional capital defender offices.
"Recommendations offered for Va. death penalty process," is Frank Green's Richmond Times-Dispatch article.
A review of Virginia’s death penalty aimed at improving fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases.
The recommendations are among more than a dozen in the two-year effort sponsored by the American Bar Association’s Death Penalty Assessment Project that since 2003 has studied and reported on the death penalty in 10 other states.
“If you’re going to have a death penalty, I think everyone would agree we have to get it right,” Mark L. Earley, a former Virginia attorney general and member of the Virginia Death Penalty Assessment Team, said Thursday.
“This wasn’t a project about whether Virginia should have the death penalty or should not have the death penalty. It wasn’t a project about whether we should have a moratorium on the death penalty,” Earley said.
“It was really a project that (considers) this: If a state is going to have the death penalty, how can we be sure it has integrity and that it is accurate and fair in all respects,” he added.
A top-priority change urged by the study is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups.