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IS EVIDENCE LAW TOO TOUGH?

No inmates have been freed by new petition process; supporters say system works, by Frank Green, Times-Dispatch Staff Writer

Virginia court rejected 1st appeal

Three years after felons were allowed to petition the Virginia Court of Appeals with non-DNA evidence of innocence, few have done so, and none has been found innocent.

Critics say that is because the law is impossibly tough; others disagree.

"The criticism from the beginning was that the procedures were too complicated and the hurdles too high," said Kent Willis, executive director of the American Civil Liberties Union of Virginia. "While in principal it was important to pass this bill, the practical effect was minimal."

"It was essentially set up to fail by creating too many obstacles," he said.

Not so, said J. Tucker Martin, spokesman for Virginia Attorney General Bob McDonnell. "The law is working as it should. . . . The fact that no writs have been awarded is a demonstration that the judicial system in Virginia is fair and reliable," he said.

Martin said he would not speculate on whether there are innocent people in Virginia 's prisons who cannot be helped by the law. The record suggests there are.

DNA testing has cleared 10 Virginians convicted of rape, murder and other serious crimes. A sample testing of 31 old cases several years ago cleared two men of rape who had never sought DNA testing.

A wider testing program of old cases is under way, and the Virginia Department of Forensic Science expects it to clear more people.

In 2001, after DNA testing led to the pardon of a former death-row inmate, the legislature made DNA the only exception to a rule barring state courts from considering evidence of innocence if it was discovered more than 21 days after sentencing.

Inmates with new evidence have always been free to petition the governor for clemency or a pardon, but not the state courts after the 21-day period.

"The problem with going to the governor," Willis said, "is that that is ultimately a political process. The idea behind this law was to create a presumably fair and objective process by which you could review convictions based on newly discovered evidence."

Proponents of the 21-day rule argue verdicts must have finality -- that there must be an end to appeals at some reasonable point. Opponents say that in a system that is just, innocence must always trump finality.

Most states have no time limits. Virginia 's 21-day rule is the toughest in the country.

A problem with limiting exceptions to the 21-day rule to DNA is that most inmates were convicted of crimes that cannot be cleared up using DNA testing -- there either was no biological evidence involved or it no longer exists.

To bring Virginia in line with other states and to assist felons with non-DNA evidence of innocence, in 2002 the Virginia Supreme Court proposed doing away with the 21-day rule.

Instead, the General Assembly, after listening to the concerns of prosecutors, the Virginia attorney general's office and victims' rights advocates, passed a "writ of actual innocence" law for non-DNA evidence.

Proponents said the new law would be the toughest exception to the toughest finality rule in the country and that non-DNA evidence virtually would have to be as persuasive as DNA evidence to prevail.

Critics say it is difficult to imagine how that can happen.

"If you're just going to limit it to DNA evidence, say that," said Betty Layne DesPortes , a Richmond criminal-defense lawyer and forensics expert. "Don't give this false hope of a writ of actual innocence that you are never going to be able to prove."

Among other things, the writ of actual innocence requires that the new evidence could not have been discovered before the 21-day limit expired and that, when considered with the other evidence, it proves "that no rational trier of fact could have found proof of guilt beyond a reasonable doubt."

DesPortes noted that if the new evidence was available during the 21-day period, then the petitioner is out of luck and an innocent client is punished because of their lawyer's failings, she said.

Also, she complained that the law does not permit anyone who pleaded guilty -- the majority of those in prison -- to use the law. At least two wrongly convicted people cleared by DNA testing had pleaded guilty, one to avoid a death sentence.

The law took effect July 1, 2004. According to a spokesman for the Virginia Court of Appeals, as of the end of 2006, 92 petitions had been filed. Eighty-five were dismissed and seven were pending.

DesPortes suspects that many of the petitions were dismissed because of filing errors by inmates who had to file papers themselves without the help of a lawyer. A petitioner only gets one chance, she said.

The cases go to three-judge panels of the appeals court, which can dismiss them or ask the Virginia attorney general's office to respond. At that point, the inmate is assigned a court-appointed lawyer.

Many of the petitions are based on the recantation of the trial testimony of witnesses or the victim, or new statements from purported witnesses.

A problem, said state Sen. Kenneth W. Stolle , R-Virginia Beach , is that new testimony and recantations can be subject to abuse and fraud. Stolle played a key role in drafting the law and tried to satisfy the concerns of all sides.

At the time the law was being drafted, there was great concern about its potential for abuse by inmates. So it was designed to minimize that potential, he said.

"I think that unless somebody is actually innocent and actually has to a large degree irrefutable evidence that they're innocent, they will not be able to take advantage of this writ of actual innocence," Stolle said.

"All things considered, if the testimony of a victim is the only evidence . . . maybe under that circumstance a recantation could lead to a writ of actual innocence being granted. But that's so rare . . . it very, very rarely ever happens."

Stolle added: "It would be very difficult for any other evidence . . . to rise to the level that DNA evidence rises to reverse the finding of guilt."

Stolle , a former police officer, also fought off criticism of the legislation from state officials.

At one point, opponents got so frustrated they said the law was not needed for non-DNA evidence because the state does not lock up many innocent people. Stolle told them that argument was hollow.

The ACLU's Willis said it is time for the legislature to revisit the law and make it available to more inmates.

"Maybe then we will get a glimpse of how fair the judicial system is in Virginia ," he said.

However, the Virginia attorney general's office sees no need for change, nor does Stolle .