In Virginia, a person sentenced to death has 21 days to introduce new evidence of innocence after sentencing.  After 21 days, the Appeals Courts are not required to consider any new evidence of innocence.  Virginia is the only state that does not waive time limits on presenting new evidence in capital cases.

This Year:  The bill number is HB1311.
The House Courts of Justice Subcommittee #1 will hear HB1311 (Capital Case Bill of Review- to repeal the 21- Day Rule today, Tuesday Feb. 8 after 3 PM in House Room C in the General Assembly Building.  Del. Almand is compiling a list of citizens who support the Bill.  If you have not done so allready, join the 100's of Virginians who have thus far supported the Bill, by sending your name, locale, and profession to Del. Almand at del_almand@house.state.va.us.

If you live in the following districts please call your delegate and urge them to vote for the bill.

Area code 804:
David Albo (42nd-Springfield)- 698-1142
Morgan Griffith (8th- Salem)- 698-1108
Paul Harris (58th- Albemarle, Greene, Rockingham)- 698-1158
William Howell (28th- Fredericksburg)- 698-1128
Terry Kilgore (1st- Gate City)-698-1101
Robert McDonnell (84th- Virginia Beach)- 698-1184
John Rust (37th- Fairfax)-698-1137
Glenn Weatherholtz (26th-Harrisonburg)-698-1126

Last Year:
The Capital Case Bill of Review (HB 2298),repeal of the 21- day rule, passed in the House Courts of Justice Committee on Sunday night (2/7/99) , but was defeated by the House of Delegates by a vote of 46 yea, 54 nay on 2/9/99.

Floor Voting Record for HB 2298

YEAS--Abbitt, Almand, Armstrong, Baskerville, Brink, Callahan, Christian, Cranwell, Crittenden, Darner, Davies, Day, DeBoer, Deeds, Devolites, Dillard, Grayson, Guest, Hall, Hargrove, Hull, Ingram, Johnson, Jones, D.C., Jones, J.C., Keating, Marshall, McEachin, McQuigg, Melvin, Moran, Morgan, Murphy, O'Brien, Plum, Puller, Rhodes, Robinson, Scott, Shuler, Spruill, Thomas, Van Landingham, Van Yahres, Watts, Woodrum--46.

NAYS--Albo, Baker, Barlow, Behm, Bennett, Black, Blevins, Bloxom, Bryant, Byron, Cantor, Clement, Councill, Cox, Croshaw, Davis, Diamonstein, Dickinson, Drake, Dudley, Griffith, Hamilton, Harris, Howell, Jackson, Joannou, Jones, S.C., Katzen, Kilgore, Landes, May, McClure, McDonnell, Nixon, Orrock, Parrish, Phillips, Purkey, Putney, Reid, Rollison, Ruff, Rust, Sherwood, Stump, Tata, Tate, Wagner, Wardrup, Ware, Weatherholtz, Wilkins, Williams, Mr. Speaker--54.
ABSTENTIONS--0.
NOT VOTING--0.

The following is the letter sent by Del. Almand to all the members of the House of Delegates on the day of the vote.

Dear Fellow Delegate,

House Bill 2298 comes before us today on its second reading and final passage.  This bill would eliminate the 21 day rule of the Virginia Supreme Court which prohibits newly discovered evidence from being heard by an appellate court if the appeal has not been filed within 21 days of sentencing.  While other states impose time limitations on when newly discovered evidence must be considered by the courts, only Virginia refuses to waive this rule in capital cases.  HB2298 would allow a condemned man to offer newly discovered evidence only if the court believes that there is a significant probability that the prisoner is innocent.

You may have heard the argument raised that the elimination of the 21 day rule would hamper the Commonwealth's ability to carry out executions in a timely manner.  This argument is without merit.  Once an execution date is set, no court - neither the circuit court nor the Supreme Court - can grant a stay of execution unless the inmate shows substantial grounds for habeas corpus relief.  HB2298 does not grant any special provision allowing for a stay of execution.

Another argument raised by opponents of HB2298 is that this bill will invite last minute abusive filings by death-row inmates.  This simply is not the case.  HB2298 requires that evidence be presented at the earliest practicable time following its discovery.  The inmate must make a complete explanation as to why the evidence was not discovered previously.  This evidence must establish a significant probability that the prisoner is actually innocent of the crime for which the death penalty was imposed.  If these prerequisites are not met, the court may reject the bill of review.  HB 2298 prohibits the court from considering evidence unless it is presented 60 days or more before execution.  In fact, HB 2298 would eliminate last minute filings and would allow for the timely consideration of evidence.

The final argument against HB2298 is that executive clemency is sufficient to prevent the execution of someone who is innocent.  Executive clemency is an absolutely discretionary act.  This is an administrative, not a judicial process.  There is no requirement, and there can be no expectation that the granting or denial of clemency, or the process provided, be uniform or consistent.  The Commonwealth does not provide an attorney or any other assistance regarding
clemency.  No Governor in recent history has provided for a hearing at which evidence could be presented and its credibility judged.

Please examine the attached editorials from The Virginian Pilot and The Richmond Times Dispatch.  I hope you will join with me in voting for HB 2298 and in doing so, stand for the rights of the innocent.

Sincerely,
 

This year was the most encouraging year since this bill was introduced 3 years ago.  39 Legislators have signed on to Del. Jim Almand's bill.
    You are encouraged to phone (800-889-0229) or e-mail your delegate (see below) and express your view. You can contact your Delegate at del_ (last name)@house.state.va.us  For some reason, Senators do not have similar e-mail addresses.  You can find their address by going to the General Assembly web site at http://leg1.state.va.us.
    Even if they support the death penalty, stress that this bill would by no means abolish the death penalty.  This bill would only provide the Courts the ability to hear new evidence presented, after 21 days after sentencing.  Let them know, that even supporters of the death penalty support this bill.

NOTE:
    The vote in the House Courts of Justice Committee went along party lines except for Del. Michele McQuigg (51st District- serving Prince William County, Woodbridge).  If you live in Del. Mcquigg's district please contact her and show your appreciation for her vote.
    Let the following Delegates know how you feel about their vote.

Voting in Favor of HB2298  `                         Voting Against HB2298
Jim Almand- 47th, Arlington                           Thomas Baker- 7th, Dublin
Dick Cranwell- 14th, Vinton                            David Albo- 42nd, Springfield
Joseph Johnson- 4th, Abingdon                       Eric Cantor- 73rd, Richmond
Jerrauld Jones- 89th, Norfolk                           Richard Black- 32nd, Sterling
Ward Armstrong- 11th, Martinsville                 Morgan Griffith- 8th, Salem
Creigh Deeds- 18th, Warm Springs                  Terry Kilgore- 1st, Gate City
Johnny Joannou- 79th, Portsmouth                  Paul Harris-  58th, Albemarle
Vivian Watts- 39th, Annandale                                             Greene, Rockingham
Donald McEachin- 74th, Richmond                  Roger McClure- 67th, Centreville
Ken Melvin- 80th, Portsmouth                        Robert McDonnell- 84th, Va.Beach
Brian Moran- 46th, Alexandria                         John Rust- 37th, Fairfax
Michele McQigg- 51st, Woodbridge            William Howell- 28th,Fredericksburg
John Tate- 5th, Marion

 Talking Points:

The Bill does not affect or repeal the death penalty and applies to capital
cases only

It has five restrictions to prevent frivolous appeals:
    -new evidence may be presented in the bill if it pertains to innocence only
(not procedure)
    -the evidence must be newly discovered
    -the bill must explain why the evidence wasn't presented in the original trial

    -it has to be filed at least 60 days before execution (it's not a last-ditch
strategy)
    -it must be demonstrated that the evidence is being presented at the earliest
possible time

 This is not a liberal or conservative issue--it is an issue of justice, guilt
or innocence

        Below is the Capital Case Bill of Review which would repeal the 21 Day Rule.  Please note that 39 Legislators signed on to the bill sponsored by Delegate Jim Almand of Arlington.  If you notice your Legislator(s) as one (2) of the patrons, please let them know how much you appreciate them supporting the Bill.  Notes to Del. Almand supporting his sponsorship of the Bill would also be nice.
 

                                                                                                                           summary | pdf
 

Patrons-- Almand, Abbitt, Baskerville, Brink, Callahan, Christian, Crittenden, Darner, Davies, Day, Deeds, Dillard, Grayson, Johnson, Jones, D.C., Jones, J.C., Keating, McEachin, Melvin, Moran, Murphy, Plum, Robinson, Scott, Spruill, Van Landingham, Van Yahres, Watts and Woodrum; Senators: Edwards, Gartlan, Howell, Lambert, Lucas, Marsh, Maxwell, Miller, Y.B., Puckett, Ticer and Whipple

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Article 4.1 of Chapter 15 of Title 19.2 a section numbered 19.2-264.6 as follows:

§19.2-264.6. Capital case bill of review.

A. A prisoner under sentence of death, or whose sentence of death has been commuted to life imprisonment by the Governor, may at any time present a capital case bill of review as a civil proceeding, to the circuit court which entered the order fixing the prisoner's punishment at death provided the following conditions are met:

1. It is alleged in the bill of review that there exists newly discovered evidence that establishes a significant probability that the prisoner is actually innocent of the crime for which the death sentence was imposed;

2. It is alleged in the bill of review that the evidence claimed to be newly discovered was not known by the prisoner or his trial counsel at the time the prisoner was tried upon the charge resulting in the sentence of death;

3. It is alleged in the bill of review that the evidence claimed to be newly discovered is being presented to the court at the earliest practicable time following its discovery;

4. The bill of review contains a sufficient recitation of the evidence claimed to be newly discovered, together with a complete explanation of the reasons the evidence has not been previously discovered and presented to the court, for the court to determine whether there exists a basis to reopen the original case which resulted in the sentence of death;

5. The bill of review is filed with the court no less than sixty days prior to the scheduled execution.

A copy of the capital case bill of review shall be served upon the Attorney General of Virginia and the attorney for the Commonwealth for the county or city in which the original case resulting in the sentence of death was tried. The attorney for the Commonwealth shall represent the Commonwealth in such proceeding, but the Attorney General, in his discretion and with the consent of the attorney for the Commonwealth, may also appear on behalf of the Commonwealth.

B. If, upon review of the capital case bill of review and any pleadings filed in response by the Commonwealth, the court finds that the conditions of subsection A have not been met or that the evidence claimed to be newly discovered, if true, does not establish a significant probability of actual innocence, the court shall dismiss the bill of review without an evidentiary hearing.

C. If, pursuant to the provisions of subsection A, sufficient basis is found, the court shall hear the newly discovered evidence and such evidence as the Commonwealth may present in rebuttal. If the court, upon considering all such evidence, finds that there is a significant probability of actual innocence, it shall enter an order granting the bill of review.

D. The decision of the circuit court to grant or dismiss the bill of review may be appealed by the prisoner or the Commonwealth by the filing of a petition for appeal in the Supreme Court within thirty days of the decision of the circuit court. If the decision of the circuit court to grant the bill of review is not appealed by the Commonwealth or is affirmed on appeal, the circuit court shall order a new trial or grant such other relief as may be appropriate.

E. The provisions of this section shall apply notwithstanding any other provision of law or rule of court.

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