ABA Virginia Death Penalty Assessment Report
September 5, 2013
SUMMARY
The American Bar Association (ABA) recently released its comprehensive
assessment of death penalty statutes and practices in Virginia. The study
found serious flaws in the laws and practices that undergird Virginia’s system
of capital punishment.
Background
Ten years ago the ABA began to assess the administration of capital
punishment in states. These reports compare the actual practices of each
state to the ABA Protocols on the Administration of Capital Punishment,
originally published in 2001 and revised in 2010.
Each state’s assessment team determines whether the state is in compliance
with over 90 ABA benchmarks on the fair and accurate administration of the
death penalty. The assessment team is responsible for collecting and
analyzing various laws, rules, procedures, standards, and guidelines relating
to the administration of the death penalty in their state.
Among the items considered are practices of crime labs and medical
examiners, treatment of forensic evidence, prosecutorial practices, services
available to defendants during trial and the appeal process, jury instructions,
post-conviction proceedings, and treatment of racial minorities and those with
mental illness.
Findings
The report highlights some recent improvements in the current system. The
assessment team lauds Virginia for the accreditation of crime laboratories and
medical examiner offices as well as certification of the professionals employed
by those important investigatory arms. The ABA report also praises Virginia’s
system of Regional Capital Defender offices, staffed by attorneys and support
staff specially qualified to represent capital defendants at trial.
Virginians for Alternatives to the Death Penalty and its allies advocated for the
establishment of these offices in order to provide quality defense counsel for
those accused of capital murder in the Commonwealth. The experienced
capital trial lawyers in these offices have had a dramatic impact, driving down
death sentences and reducing the number of executions.
In the past nine years Virginia has averaged only one new death sentence
each year. There have only been two executions in the past three years. This
is a dramatic decrease from the 15-year-period from 1996 to 2010 when the
state averaged 5.3 executions each year.
However, serious problems remain. The Virginia Assessment Team identified
a number of areas of concern, all of which are critical to ensuring fundamental
fairness in death penalty cases. These concerns are grouped into three
categories:
A. Pretrial Areas for Reform
1. Eyewitness Identification Procedures
2. Interrogation Procedures in Capital Cases
3. Discovery in Capital Cases
4. Capital Charging
B. Post-Trial Areas for Reform
1. Biological Evidence Preservation
2. Access to Post-Conviction Testing of Biological Evidence
3. Appellate Representation
4. State Habeas Corpus Proceedings
C. Special Issue Areas
1. Capital Jury Instructions
2. Persons with Mental Retardation/Intellectual Disability
3. Persons with Severe Mental Illness
4. Data Collection
Some of the ABA Assessment Team’s key recommendations include:
« Implementation of best practices by law enforcement, including
eyewitness identification techniques and mandatory recording of
interrogations and interviews with suspects and witnesses;
“ Better preservation of biological evidence and access to testing for those
under a death sentence;
“» Expanded discovery in death penalty cases;
« Improved comprehension of instructions for jurors who serve on death
penalty cases;
“+ Better processes to exclude those with mental retardation and severe
mental illness from the death penalty; and
* Relaxing of strict rules placed on appellate review of death penalty
cases.
Perhaps the biggest problem cited by the ABA Assessment Team is that of
tight restrictions on what prosecutors must share with defense counsel:
... a capital defendant may go to trial without knowing who will testify
against him or her. She or he may face the prospect of cross-examining
witnesses without access to written or recorded statements made by
the witness at the time of the events. And a capital defendant may face
the daunting task of preparing for trial without access to much of the
record of the police investigation that gave rise to capital charges.
The report concludes that this restrictive discovery process invites police and
prosecutors to be less than forthcoming with the defense:
. such a system makes Brady violations more likely and can result in
extensive post-trial litigation, reversals, and retrials. Recently, two
Virginia capital cases were reversed on appeal due to failures to
disclose exculpatory evidence.
Steve Northup, Executive Director of Virginians for Alternatives to the Death
Penalty, said that there should be a full open file policy (i.e., access to
everything in a prosecutor’s files). Until that happens, he said, “You’re going
to have problems ranging from good-faith mistakes to cheating.”
The complete ABA report for Virginia as well as highlights,
chapter summaries, and biographies of assessment team
members are available at this link: http://tinyurl.com/mew6ewc
ABA Virginia Death Penalty Assessment Report
Complete List of Recommendations
A.Pretrial Areas for Reform
de Eyewitness Identification Procedures
Recommendations
* Virginia should require law enforcement agencies to adopt the Virginia
Department of Criminal Justice Service’s (DCJS) Model Policy on Eyewitness
Identification.
2 Interrogation Procedures in Capital Cases
Recommendations
* Virginia should require law enforcement agencies to record interrogations and
interviews with suspects and witnesses that take place in a law enforcement-
controlled setting in any potential capital case.
3. Discovery in Capital Cases
Recommendations
* The Virginia Supreme Court should modify Rule 3A:11, for capital cases, to
require prosecutors to disclose the identity and any prior statements of testifying
witnesses at a time sufficient to allow adequate preparation for cross-examination
and to allow discovery of police reports.
+ All Commonwealth’s Attorneys should develop procedures to ensure that law
enforcement agencies, crime laboratories, experts, and other state actors are
fully aware of and comply with the duty to disclose exculpatory evidence.
+ All law enforcement officers should be required to receive training on the
importance of divulging all evidence to the prosecutor in all criminal cases,
including anything that might constitute Brady material.
4. Capital Charging
Recommendations
* Virginia should enact a statutory change that authorizes the prosecutor to
unilaterally withdraw the death penalty when the defendant has been charged
with capital murder.
B.Post-Trial Areas for Reform
ds Biological Evidence Preservation
Recommendations
* When biological evidence is collected in a felony case, Virginia should require
long-term preservation of such evidence.
* State law should be amended to permit the Commonwealth’s failure to preserve
evidence to serve as a basis for relief in state habeas corpus proceedings. Courts
should not be prohibited, as they are under existing law, from exercising their
discretion to determine if the circumstances surrounding lost or destroyed
evidence warrant relief.
2s Access to Post-Conviction Testing of Biological Evidence
Recommendations
* Virginia should amend its DNA testing statute to permit post-conviction testing on
biological evidence if the testing requested was not available at the time of trial
or there is credible evidence that prior test results or interpretation were
unreliable.
3. Appellate Representation
Recommendations
* Virginia should create a position for an appellate defender within the Regional
Capital Defender Office in Richmond.
4. State Habeas Corpus Proceedings
Recommendations
* Virginia should return original jurisdiction over capital state habeas claims to
trial courts to ensure that the court in which the inmate was originally convicted
has the first opportunity to correct any errors;
* Virginia should increase the amount of time afforded to death row inmates for
filing of their state habeas petitions, with an allowance for an extension of time
upon a showing of good cause;
* Virginia should eliminate the practice of scheduling an execution date while an
inmate’s federal habeas proceedings are pending, and permit the setting of an
execution date only after all state and federal remedies are exhausted; and
* Virginia should provide funding so that state habeas attorneys can hire mitigation
specialists, investigators, and experts needed to fully develop and present their
clients’ claims.
C.Special Issue Areas
1. Capital Jury Instructions
Recommendations
* Virginia capital jurors should be instructed that
- Jurors are never required to return a verdict of death;
- Mitigating evidence does not need to be found beyond a reasonable doubt;
- A finding of mitigating evidence need not be unanimous;
- Any evidence presented during the guilt and sentencing phases of the trial
may be considered as mitigating evidence; and
- Jurors must consider mitigating evidence if they find an aggravating factor.
Jurors should be instructed on individual mitigating factors when such an
instruction is supported by the evidence and requested by the defendant; and
The instruction should make clear that jurors must consider the defendant’s
threat to others in light of his or her incarceration while serving a sentence of life
in prison without the possibility of parole.
2. Persons with Mental Retardation/Intellectual Disability
Recommendations
* Virginia should amend its mental retardation statute such that it fully conforms to
the American Association on Intellectual and Developmental Disabilities
definition.
* Virginia should amend its statute to require the trial court make a pretrial
determination of whether a capital defendant has mental retardation, and is thus
ineligible for the death penalty.
3. Persons with Severe Mental Illness
Recommendations
* Virginia should adopt a law prohibiting the application of the death penalty to
anyone who, at the time of the offense, suffered from significant limitations in
both their general intellectual functioning and adaptive behavior, whether
resulting from mental retardation, dementia, traumatic brain injury, or other
disease or disability.
* The law should also forbid death sentences and executions with regard to persons
who, at the time of the offense, had a severe mental disorder or disability that
significantly impaired the person’s capacity (a) to appreciate the nature,
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consequences or wrongfulness of one’s conduct, (b) to exercise rational judgment
in relation to conduct, or (c) to conform one’s conduct to the requirements of the
law. The law should make explicit that a disorder manifested primarily by
repeated criminal conduct, such as antisocial personality disorder, or attributable
solely to the acute effects of voluntary use of alcohol or other drugs does not,
standing alone, constitute a mental disorder or disability for purposes of
exclusion from capital punishment.
This procedure would affect only a defendant’s eligibility for the death penalty.
Those defendants qualifying as having a severe mental disorder under this
standard would still be eligible to stand trial.
Data Collection
Recommendations
* Virginia should designate an appropriate entity, such as the Virginia Sentencing
Commission, to collect, analyze, and make publicly available salient facts on all
death-eligible cases in Virginia, regardless of whether the case was resolved at
trial or through a plea negotiation.
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