THE 21-DAY RULE

The struggle to repeal Rule 1:1 of the Virginia Supreme Court, better known as the 21-Day Rule, will continue into the 2004 General Assembly. Governor Warner called for reform of the unjust 21-Day Rule in his State of the Commonwealth address in January 2003. The General Assembly responded with a “band-aid” solution, increasing the infamous 21-day limit on the introduction of new evidence of actual innocence to 90 days. VADP opposed this 10-week extension as a “façade of justice,” which merely gave the appearance of reform while actually continuing the most repressive limitations on the introduction of new evidence in the nation. Fortunately, the Governor labeled the reform as “insufficient,” postponed implementation of the new law until July 1, 2004, and requested that the Virginia Legislature make another attempt at “a more comprehensive proposal” to correct this blatant injustice. Senator Stolle, the bill’s sponsor, had called the 90-Day Rule “placeholder” legislation when first introducing it at a Crime Commission meeting in November 2002.

The Virginia State Crime Commission has established a 21-Day Task Force of 21 members including judges, legislators, prosecutors, defense attorneys, and representatives of both the Governor and the Attorney General, whose mission is to come up with a proposed statute which would override the existing 21-Day Rule. VADP has monitored the two hearings held so far. Unfortunately, only one additional meeting on August 6 is scheduled, and VADP has been informed that the only opportunity for the public to comment will be at the November 19 meeting of the Virginia State Crime Commission. By that time, it will be more difficult for the public comment to have any substantial impact on the proposed statute.

The good news is that, so far, the Task Force has unanimously proposed eliminating any time limit on the introduction of new evidence of actual innocence and no limit on the types of evidence.

The bad news lies in the stringent standards proposed by the Crime Commission. Standards like (iv) “that the evidence was not previously known or available...,” (vi) “that the new evidence is such as could not, by the exercise of diligence, have been discovered before the conviction became final,” (vii) “the new evidence is material and will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt,” and (viii) “the evidence is not merely cumulative, corrobative or collateral,” all raise questions as to the ability of any convicted individual to meet them. Unfortunately, the Task Force approved the standards by a vote of 13 to 4, with the two defense counsels voting to oppose. If these are included as presently worded, the final statute may well prove to be merely a cosmetic change to the present 21-Day Rule. Unless the Task Force drafts a statute that provides for meaningful reform, VADP will be forced to oppose it.

It is important that Virginia legislators and the members of the 21-Day Task Force hear from VADP supporters urging an end to the 21-Day Rule. Whatever proposed statute the Task Force suggests will still have to be approved by the General Assembly during its 2004 legislative session. VADP’s Board of Directors has set the meaningful abolition of the 21-Day Rule as a priority item.  The final meeting of the 21-Day Task Force is scheduled for August 6 in the General Assembly building in Richmond. The sessions are open to the public, although one is not allowed to publicly address the Task Force. Encourage your state legislators to attend and report back to you, or attend yourself.