Harder to prove

Innocence

Marianne Kruse-Blanchong

Under long-standing law - unique among the 38 states that have the death penalty - convicted felons have 21 days after sentencing to produce new evidence that could prove their innocence. Beyond three weeks, the state limits appeals to procedural issues alone.

After the 3-week window, a condemned prisoners only hope for presenting new evidence is in a last-minute appeal for clemency to the Governor.

In many cases - such appeals are fruitless.

Attorneys for Michael Satcher, 29, who was put to death Tuesday for raping, robbing and murdering a woman in Arlington, tried in vane to bring up to date DNA test results to bear on his case.

A Charlottesville lawyer who represented Dennis Stockton, executed for a 1978 murder in Patrick County, said his client submitted evidence that would have proved him innocent days before he was put to death in September 1995.

For Steve Roach, the 21-year-old former Greene County resident fighting to have his death sentence overturned. The odds are troubling.

Roach believes late-arriving evidence could prove he didn’t commit the murder for which he was sentenced: The 1993 death of Mary Ann Hughes. Hughes a 70-year-old neighbor of Roaches, was slain with a saw-off-shotgun.

Although Roach confessed to the killing after the verdict, he since has claimed that he admitted to the slaying only to have his life spared.

"If a person has evidence to prove Hess not guilty, the courts should hear that evidence as a matter of law," Roach said Friday from the Mecklenburg Correctional Center in Boydton. "What’s more important, a personas life or a personas paperwork? The 21-day rule is ridiculous."

Roach has carried out his case review for the past 2 years through the normal channels provided under Virginia law, which is to say, without being able to have the evidence he says would exonerate him considered in court.

His appeals to state and federal courts failed and the Supreme Court of Virginia in April dismissed his petition to have his trial and sentence thrown out on constitutional grounds.

Roaches notice in September that he would petition the U.S. district Court in Alexandria to toss out his conviction stayed the states 1^st execution date for September 29^th

Lawyers who represent prisoners on death row says the 21-day rule keeps alive the possibility that someone will be executed without the chance to present evidence that prove their innocence.

But prosecutors say the 9-odd stages of case review to which death row inmates are entitled provide sufficient fairness in prisoners` trials and sentencing.

"There has to be some time when the judgement of the court becomes final, and that’s true for capital murder cases as well as all others," said Frank S. Ferguson, a deputy state attorney general.

Most states with capital punishment provide exceptions in the appeal process for inmates facing the only penalty that cant` be reversed.

Prisoner, prosecutors and courts have an interest in ensuring that all scales of fairness have been balanced in a convicted murderers case before he’s put to death, defense lawyers and prosecutors agree.

Virginia, for example, entitle death row inmates to court-appointed attorneys through all stages of the appeal process. Other convicted felons can get state-founded legal representation only through the 1^st stage.

But while other death penalty states give convicted killers extra time to present evidence that might turn away the finger of guilt, Virginia’s rule is hard and fast: 21 days.

Bills introduced in the General Assembly to change the law have died in committee in recent sessions.

Steven D. Rosenfield, a Charlottesville lawyer who represented Stockton, calls Virginia the most restrictive state in the nation in its evidence rule for capital cases.

"There isn’t a single other state that wouldn’t consider making an exception to their (post-sentencing evidence) rule", Rosenfield said. "The criminal justice system is a fallible system, and just and fair states should allow for some mechanism to show their fallibility."

But giving convicted murderers the opportunity to bring new evidence in a case in which they already have been convicted only would open the judicial system to "endless re-litigation," said Ferguson.

But lawyers representing death-row inmates say new facts supporting their client’s innocence should be brought to bear at any time after trial - especially for cases moving toward ultimate closure.

"One would think that a system that uses the death penalty would be concerned about significant evidence of innocence," said George Kendall, An NAACP Legal Defense Fund lawyer who has litigated death penalty cases around the nation for 15 years. "What’s the interest that overrides ferreting out an injustice? What’s the magic of 21 days?"

The issue could take on increased urgency as the state’s rate of executions increases.

Executions in Virginia have been accelerating since the death penalty was reinstated in 1976. About 83% of the 46 executions carried out since then occurred from 1990 on, according to the Death Penalty Information Center in Washington D.C. In 1886, Virginia killed 8 prisoners - more than any other state. This year, the Old Dominion has sent 9 inmates to their deaths - 2^nd only in Texas, which executed 37 prisoners.

In the Michael Satchers case, defense lawyers questioned the 1990 DNA test that helped convict their client because varying results in a 1995 test. But the mer discrepancy wasn’t enough.

To carry weight in court, DNA evidence must be "compelling" - establishing better than merely probable connections between deeds and defendants.

And the discrepancy didn’t convince the Governor.

Before his execution, Satchers’s defense attorneys made a public request to the state legislature to adopt a system for post –trial evidence based on the model of Illinois courts.

The Illinois judiciary allows consideration of post-conviction DNA test result gathered from more technologically advanced exams.

"That’s something, obviously, we feel would have helped Mr. Satcher’s case," said Lee Ann Anderson McCall, a Washington, D.C. lawyer who helped represent Satcher. "Our most recent test was 5 years after his conviction. That’s well past the 21-day rule."

Rosenfield, who represented Dennis Stockton during his petition for a new trial believes he came up with evidence that should have spared Stockton’s life 2 years ago.

Rosenfield introduced affidavits from the ex-wife, son and girlfriend of prosecution witness Randy Bowman that implicated Bowman in the killing for which Stockton was convicted.

A.U.S. District Court judge stayed Stockton’s execution for a hearing on the new evidence 2 days before the convicted killer’s execution date.

However, the 4^th Circuit Court of Appeals reversed the stay the following day, ruling that the evidence was introduced too late, and Stockton was put to death the day after the 4^th Circuit decision.

Case review on the federal level provides some means to introduce new evidence for death row inmates. But Rosenfield said the 4^th Circuit ruling followed a recent trend: the appeals panel, in effect, decided that federal courts could not be used to bypass Virginia’s 21-day rule.

State legislators assembled in 1993 a joint committee of the House of Delegates and Senate to examine the 21-day rule for a report to the 2 chambers the following year.

Kenneth W. Stolle, a member of the Senate Courts of Justice Committee opposed to a change in the rule, sat on the panel as it studied the law and heard testimony. Stolle concluded that the 21-day rule was judicially sound for all felony convictions, including those for capital murder, he said.

"The rules for capital murder cases should be the rule for all cases." Said Stolle, R-Virginia Beach. The panel found no proof to convince him that the 21-day rule compromised justice, he added. "There was a total lack of evidence to support that."

Still, since 1970, 73 people across the country have been released from death row because of evidence produced proving their innocence, according to statistics from the Death Penalty Information Center in Washington D.C.

Bryan Stevenson, a Montgomery, Alabama attorney who has represented condemned inmates in the South for 13 years, was able in 1993 to free an Alabama death row inmate. Stevenson got Walter McMillan exonerated with evidence produced that proved his client’s innocence - 6 years after his client’s conviction.

"Arbitrary timelines and requirements for presenting evidence are very dangerous," Stevenson said from his law office in Montgomery, where he directs the Equal Justice Initiative. "Often times, obtaining evidence suppressed by prosecutors or police can take many years of litigation."

Some Virginia state lawmakers have made legislative attempts to write an exception to the 21-day rule for capital murder convictions.

Most recently, Delegate James L. Almand, D-Arlington, sponsored a bill in the House this year that would have given death row inmates a chance to bring new evidence in their case to court.

"I felt that there ought to be a judicial mechanism to consider after-discovered evidence in their case to court", said Almand.

Almand bill proposed to allow prisoners to petition the courts which they were convicted for a hearing on evidence they did not know of during trial.

Circuit court judges could grant a hearing only if they thought the evidence showed a "significant probability of innocence", and could order a new trial if that probability held up in the hearing. The bill never made it out of a Courts of Justice subcommittee.

Almand is considering introducing a new bill to give death row inmates a chance to bypass the state rule in the next General Assembly session, he said.

Under current Virginia law, a convicted killer faces a system of appeals and petitions based almost entirely on procedure - not facts relating to the charges.

After sentencing, capital murder convictions are automatically appealed to the Virginia Supreme Court. New evidence presented within the 21-day limit can be presented to the high court to consider.

If the judges uphold the conviction and sentencing, the inmate then can ask the U.S. Supreme Court, to examine the case.

Appeals end if federal high court upholds the trial court results. In appeals, courts could order either a new trial or sentence instead of reversing a conviction outright.

If appeals fail, the next route for a death row inmate is to argue that his due process rights were violated. Unlike in the appeals judges considering petitions can’t clear a convicted killer of a charge with an acquittal verdict. They can order only a new trial or sentence.

If the state Supreme Court denies an inmates request for a new trial or sentence, he can make his case in U.S. District Court. The ruling from this court can be reconsidered in U.S. 4^th Circuit Court of Appeals.

Either side can ask the U.S. Supreme Court to reconsider the 4^th Circuit decision, but that body is under no obligation to consider them and only accepts a fraction of requests for review.

The execution of Satcher and 26-years old Thomas H. Beavers last week went forward after the federal high court refused to hear their cases in the final stage. Beavers, put to death Thursday, did not claim to be innocent of the 1990 rape and murder in Hampton for which he was sentenced.

State prosecutors say those channels of reconsideration in state and federal courts are tough enough to filter capital murder cases for fairness.

"These cases are subject to 8 to 10 rounds of review already," said Ferguson. Any additional avenue for new evidence in the review process virtually would prohibit the state for setting any execution dates at all, since hearings could be scheduled indefinitely," he added.

"Prisoners awaiting execution already tend to prolong their case review as much as possible ", said Ferguson. Since 1991, death row inmates have spent an average of 9 years in prison before execution, according to Department of Corrections statistics.

And with exceptions to the 21-day rule for capital murder convictions in place, "there’s the very, very real danger that these cases will never come to an end - that they will be litigated and re-litigated ad infinitum," he said.

Steven M. Schneebaum, the Washington D.C. , lawyer representing Roach in his petition to federal district court , thinks Virginias uncompromising 21-day rule is unwise, but not necessarily unconstitutional.

"The rule’s not categorically worse for the death penalty cases than for other (felony) cases," said Schneebaum. "But the consequences are obviously worse in death penalty cases because you can’t do them over.

Nevertheless, Ferguson argues those convicted of a killing with strong enough evidence for their innocence can get executive clemency. The Governors review of a case before execution is the mechanism that makes the review process "fail safe", he claims.

From 1991-94 , then Governor L. Douglas Wilder granted conditional clemency to three men on death row - commuting their death sentences to life in prison. Wilder allowed the state to retry Earl Washington Jr. , Joseph M. Giarratano and Herbert R. Bassette. All are serving life sentences in prison; 13 prisoners were put to death during those years.

The Governor based his decisions on problems in the evidence marshaled against the 3 by state prosecutors.

In September Gov. George F. Allen commuted the death sentence of convicted killer William Ira Saunders to life in prison based on information available after 21 days had lapsed.

Saunders, whose death penalty Allen commuted in September, was convicted of murder in 1989 and sentenced to die in Danville in May 1990.

But when information about Saunders’ pre-sentencing incarceration came to light, the Danville chief of police, commonwealth’s attorney and presiding Circuit Court judge recommended clemency.

Lawyers for death row inmates say new evidence in their client’s favor should be addressed in the courts, not with 11 hour gubernatorial discretion.

"The question of whether somebody should be incarcerated or not is a legal issue, not an executive decision," said Rosenfield.

Ferguson insists that, all things considered, the 21-day rule in the state justice system does not compromise the thoroughness of review or the interest of justice.

"I’m not aware of any case since the death penalty was reinstated (in 1976) that has gone to execution where there was any shred of doubt that the person should have been put to death," Ferguson said.