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In Virginia, under the 21- Day Rule, no court is permitted to review any newly discovered evidence presented 21 days or more after the initial sentencing… In the 2001 Annual Quality of Life in Virginia Survey conducted by the Center for Survey Research at Virginia Tech, 82.7% of Virginians disagree with this law.

Only our legislators can correct this injustice…

REPEAL THE 21- DAY RULE!

It’s a matter of justice…

Coalition to Repeal the 21- Day Rule
P.O. Box 4804
Charlottesville, VA 22905
(804) 263-8148 (Charlottesville area)
(888) 567-8237 (Toll Free)

An Issue Of Justice In The Commonwealth

When a prisoner condemned to death petitioned a Virginia Circuit Court to review new evidence on his behalf, then Attorney General Mary Sue Terry argued: "Evidence of innocence is irrelevant."

Shockingly enough, most of Virginia’s political leaders seem to agree with former Attorney General Terry and her outrageous and irresponsible statement. They call it "finality of judgment."

We call it by a more realistic name: "A gross miscarriage of justice!"

The Virginia General Assembly has repeatedly protected Rule 1:1 of the Virginia Supreme Court — an archaic statute that prevents incarcerated individuals from having their guilt or sentencing reviewed on the basis of new evidence twenty-one days or more after their initial sentencing.

Virginia’s 21-Day Rule, as it has come to be called, prevents the admission of evidence that at the time of sentencing may have appeared inconsequential or inconclusive due to underdeveloped technology or facts. This becomes particularly poignant in rape and murder cases for which DNA is available, but at the time the prisoner was convicted, the technology was not yet admissible or reliable in the courts.

The citizens of Virginia deserve "finality," but not at the cost of justice, especially when an innocent person is to be executed by the state.

The 21-Day Rule Defined

The 21-Day rule is a court imposed rule under Rule 1:1 of the Virginia Supreme Court which explicitly states that trial courts lose jurisdiction over their cases twenty-one days after an individual has been sentenced. Since the trial court is the only place in the Commonwealth’s court system that an individual may introduce evidence, this rule prevents the consideration of newly discovered evidence more than twenty-one days after sentencing.

What The Press Has Said About The 21- Day Rule

…… gubernatorial clemency is an extra-judiciary device – and the courts, not the State Capitol, are the proper place to weigh new evidence……the General Assembly should revisit the 21 day-rule and examine ways to address this potential hazard to procedural justice. A civilized society sometimes demands that a guilty man die for his crimes. But its regard for the innocent is what makes society civilized in the first place.

Editorial, Richmond Times-Dispatch December 19, 1998

"Virginia should join the rest of the country and permit the introduction of new evidence without the confines of the highly restrictive 21-day deadline. It should enthusiastically embrace this additional opportunity to prevent the gravest of wrongs – the execution of an innocent person."

Editorial, Charlottesville Daily Progress, December 21, 1997

The Capital Case Bill Of Review

Since the 1998 legislative session, Delegate James Almand (Arlington) has proposed a bill to repeal the 21-Day Rule in capital cases. HB 2298, the Capital Case Bill of Review, would provide an unlimited timeframe for those on death row with actual evidence of innocence.

In 1999, The Capital Case Bill of Review passed in committee, but was defeated in the full House by a vote of 54 to 46. The vote was non-partisan, with both Democrats and Republicans voting both ways. Delegate Almand plans to reintroduce the bill in the 2000 session with the hope of sending it to the Senate and the Governor’s desk.

In order to prevent "eleventh hour" appeals, the bill prohibits petitioning of the court on the basis of new evidence sixty days or less before the scheduled execution. Also, to protect against wasteful appeals the bill has a provision that the circuit court will review the cited evidence before agreeing to even hear the case.

The Capital Case Bill of Review solves what the standard bill of review process cannot because it requires judges to consider potentially exculpatory evidence on the basis of a strict criterion. If the criterion is met, the judge must hear the case and consider the newly discovered evidence. The standard bill of review process leaves all the above determinations to the judge himself.

Point — Counter Point

Supporters claim that endless appeals would backlog the courts if the 21-Day Rule were to be repealed.

Not if the repealing legislation established a process by which judges could review the evidence before they agreed to consider it in court. The number of prisoners that exhaust their appeals on the basis of new evidence is much smaller than supporters would have you believe — maybe five in a year.

21-Day Rule supporters often see executive clemency as the appropriate forum for claims of innocence after a capital conviction.

Executive clemency is a political process designed more to show mercy than to investigate new evidence. Our system of checks and balances clearly assigns this responsibility to the courts, and it should be their duty rather than the governor’s to carry it out.

Finality of judgment is a necessary evil.

To the contrary. North Carolina, South Carolina, and Pennsylvania are among some of the states that have no time limit on the presentation of new evidence. Furthermore, while other states do have time limits, only Virginia has not waived its 21- day limit in a death penalty case.

Repealing the 21-Day Rule would weaken the death penalty.

No proponent of the death penalty wants the execution of an innocent person.

How Virginia’s Legislators Feel

In the summer of 1999, the 100 members of the Virginia House of Delegates were polled as to their reasons for voting for or against the Capital Case Bill of Review. 43 (22 Republicans and 21 Democrats) responded. Those voting in favor of the bill cited the need for procedures to return claims of new evidence of innocence to the trial court. All replied that the repeal of the 21-Day Rule in capital cases was not the repeal of or even attack on the death penalty in general.

In contrast, most of those voting against the Capital Case Bill of Review believed that unnecessary claims would backlog the courts. Some even went so far as to say they were concerned that repealing the 21-Day Rule would weaken capital punishment.

Both of these arguments are incorrect. The challenge for opponents of the 21-Day Rule is to get accurate information to the members of the General Assembly.

What You Can Do

Contact your legislators in the General Assembly. Ask them what their position is on the 21-Day Rule and tell them your own. When there is a town meeting or debate for the next election, make the 21-Day Rule an issue and help educate fellow Virginians about this archaic law.

If you don’t know your legislator’s name or address, go to http://legis.state.va.us on the Internet, or call General Assembly Public Relations at (804) 698-1470.

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Last year...

The Capital Case Bill of Review (HB 2298) which will repeal the 21 Day- Rule made it through House Courts of
Justice Committee but was defeated in the House, with a vote of 46 yea, 54 nay. 

The Office of the Attorney General of Virginia has argued in death penalty cases that evidence of innocence is irrelevant.

The people of Virginia disagree. Polls show 74% of Virginians oppose the "21-day rule," making it clear that in Virginia innocence is absolutely relevant.

Rule 1.1 of the Supreme Court of Virginia prohibits death row inmates from having any court consider evidence discovered more than 21 days after their sentencing. In addition, the 21-day rule prevents inmates from testing or analyzing old evidence through improved forensic methods such as DNA.

Under the 21-day rule, there is no right to a new trial or even to a hearing to determine if after-discovered evidence warrants a new trial. Such claims may be presented only to the governor though a request for executive clemency.

Isn't it enough if the governor grants clemency, pardons or commutations?

Executive clemency is a highly political process and is intended only to provide mercy, not justice to wrongly convicted death row inmates.

What are the chances of innocent people being sentenced to death?

Over 75 innocent people have been freed from death rows across the U.S. since 1972.

Of the nation's top five executing states, only Virginia has not released an inmate sentenced to death after being granted executive clemency by the governor.

During his term as Governor of Virginia, Douglas Wilder granted conditional pardons to two death row inmates who presented compelling evidence of innocence -- Joe Giarratano and Earl Washington, Jr.
He commuted Herbert Bassette's death sentence to a life sentence due to reasonable doubt of his guilt. In 1996, Gov. George Allen commuted Joseph Payne's death sentence 3 hours before his execution citing "reasonable doubt. All four men remain in prison and will likely die there, barred by Virginia's 21-day rule from having a new trial in which to present their after-conviction evidence of innocence. 

Don't polls show a large majority of Virginians favor the death penalty?

According to the Virginia Tech Center for Survey Research, recent findings suggest that polls "seriously overstate the nature of support for the death penalty." Since 1993, the annual "Quality of Life in Virginia" survey shows support for the death penalty is cut in half when respondents are given the option of life without parole eligibility for at least 25 years plus restitution to the victims' families. Further, polls in 1996 and 1997 show nearly 75% of Virginians oppose the 21-day limit on evidence in death penalty cases.

Virginians are more concerned about fairness than the finality of decisions. If there exists newly discovered evidence which establishes a significant probability that the prisoner is innocent, Virginians support the right of death row inmates to petition for a hearing at any time.

Please write your Virginia State Senator and Delegate to ask her/him to: