American Bar Association Virginia Death Penalty Assessment Report, 2013 August

SBN

Defending Liberty
Pursuing Justice

EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:

The Virginia Death Penalty Assessment Report

An Analysis of Virginia’s Death Penalty Laws, Procedures, and Practices

r

“A system that takes life must first give justice.”
John J. Curtin, Jr., Former ABA President

August 2013
AMERICAN BAR ASSOCIATION

JEN

Defending L iberty
Pursuing J ustice

EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Virginia Death Penalty Assessment Report

An Analysis of Virginia’s Death Penalty Laws, Procedures, and Practices

f

“A system that takes life must first give justice.”
JohnJ. Curtin, Jr., Former ABA President

August 2013
AMERICAN BAR ASSOCIATION

The materials contained herein solely represent the assessment of the Virginia Death
Penalty Assessment Team and have not been approved by the American Bar
Association's House of Delegates or the Board of Govemors. Accordingly, the
assessment should not be construed as representing the policy of the American Bar
Association.

These materials and any forms or agreements herein are intended for educational and
informational purposes only.

This document has been produced with the financial assistance of the European Initiative
for Democracy and Human Rights. The contents of this Report are the sole responsibility
of the American Bar Association and can under no circumstances be regarded as
reflecting the position of the European Union.

Significant portions of the research were performed on Westlaw courtesy of West Group.

Copyright 2013, American Bar Association

ACKNOWLEDGEMENTS

The American Bar Association Death Penalty Due Process Review Project (the Project) is
Pleased to present this publication, Evaluating Fairness and Accuracy in State Death Penalty
Systems: The Virginia Death Penalty Assessment Report.

The Project expresses its great appreciation to all those who helped to develop, draft, and
produce the Virginia Assessment Report. The efforts of the Project and the Virginia Death
Penalty Assessment Team were aided by many lawyers, academics, judges, and others who
presented ideas, shared information, and assisted in the examination of Virginia's capital
punishment system. Only a few of them are named below.

Particular thanks must be given to Mark Pickett, Ryan Kent, Sarah Turberville, and Paula
Shapiro, the Project’s staff attomeys who spent countless hours researching, drafting, editing,
and compiling this Report. The Project would also like to thank the American Bar Association
Section of Individual Rights and Responsibilities for their contributions. In particular, we would
like to thank Section Director Tanya Terrell, as well as Troy Burbank, Jaime Campbell, Patrice
Payne, Ginna Anderson, Brittany Benowitz, Christopher “Kip” Hale, and Monika Mehta.

Thank you also to Erica Songer Knievel, Kathryn Marshall, and Harmony Ghe of Hogan Lovells
in Washington, D.C., for their valuable—and pro bono—contributions to this Report. We also
would like to recognize the research contributions made by the Project’ s law clerks, John “Mike”
Allen, Laurel Roberson, Molly Hofsommer, Cate Schur, and Katherine Incantalupo.

The Project is also appreciative of the contributions made by Tina Alai, Kimberly Cissel, Katrina
Goodjoint, Terence McCanick, Supriya Prasad, Benjamin Schiffelbein, Jessica Trieu, Joseph
Vukovich, Will Bush, Armin Tadayon, Bryan Hyer, Gabrielle Gould, Travis Wolf, Eve Tilley-
Colson, Scott Petiya, Susan McNulty, Michelle Zavislan, Brandon Hunter, Virginia Williamson,
Ariel Bachar, Ryan Tom, Emma Y ackso, and Ethan Boldt.

Lastly, in this publication, the Project and the Assessment Team have attempted to note as
accurately as possible information relevant to the Virginia death penalty. The Project would
appreciate notification of any exors or omissions in this report so that they may be corrected in
any future reprints.

MEMBERS OF THE VIRIGINA DEATH PENALTY ASSESSMENT TEAM.

Professor John Douglass, Chair, is Professor of Law at the University of Richmond, where he
served as Dean of the Law School from 2007-2011. He teaches Criminal Law, Evidence,
Criminal Procedure, litigation skills and trial advocacy. His principal academic publications
have focused on prosecution, the criminal trial process and the Confrontation Clause. Before
joining the Richmond Law faculty in 1996, he practiced law for 15 years. He served as an
Assistant United States Attorney in Baltimore from 1983-86 and was Chief of the Criminal
Division of the United States Attorney’s Office in Richmond from 1992-96. He also served on
the staff of Independent Counsel Lawrence Walsh in the Iran-Contra investigation. As a partner
in a Richmond law firm, he specialized in commercial litigation, insurance defense, construction
litigation and white collar criminal defense. He has been a faculty member of the Virginia State
Bar’s Course in Professionalism, an instructor in trial advocacy and other litigation skills for the
National Institute for Trial Advocacy, and a frequent lecturer at continuing legal education
programs. He serves on the Virginia Indigent Defense Commission and on the Ethics
Committee for Virginia Commonwealth University Hospitals and is former Chair of the
Richmond City Charter Review Commission. Mr. Douglass serves as a mediator of commercial
disputes through the McCammon Group in Richmond. He is a graduate of Dartmouth College
and Harvard Law School.

Honorable Leslie M. Alden has nearly two decades of experience on the bench hearing civil
and criminal cases, with nearly three decades of legal experience in all aspects of litigation. She
served as a trial court judge in the Fairfax County, Virginia Circuit Court from 1996 until her
retirement in 2012 and was a trial judge in a special jurisdiction court in the Fairfax County
General District Court prior to that time. Judge Alden has been a frequent participant in
international legal and judicial programs, having served as the President of the International
Association of Women Judges, 2008-2010, and remains on the IAWJ Board of Managerial
Trustees. She also served the National Association of Women Judges (US) as its International
Director for 5 years, developing the award-winning judicial program Beyond Borders: The
Impact of International Law in U.S. Courts. Before joining the bench, Judge Alden was a
shareholder in the law firm Verner, Liipfert, Bemhard, McPherson & Hand in Washington, D.C.,
with a practice centered on commercial litigation and local government law. Judge Alden earned
her J.D. in 1983 from George Mason University School of Law, and earned her B.S. (Business
Administration) in 1978 from George Mason University. In 2001, she completed the Economics
Institute for State Judges presented by the Law and Organizational Economics Center. In 2005,
she completed the Sir Richard May Seminar on International Law and Intemational Courts
presented by the International Judicial Academy.

Craig Cooley is a practicing attorney in the Richmond, Virginia area. He is a past Chairman of
the Criminal Law Section of the Virginia State Bar, past President of the Richmond Criminal Bar
Association, a Substitute Judge, has served on the faculty of the Professionalism Curriculum
Course of the Virginia Supreme Court, and served as an Adjunct Professor at the University of
Richmond Law School. His 36 years of law practice include 70 capital murder representations,
over 400 murder trials, and over 4,500 representations of indigent defendants. He has tried over
500 jury trials. Mr. Cooley served as co-lead counsel to Lee Boyd Malvo, the 17-year-old
juvenile tried for capital murder as one of the two “D.C. Beltway Snipers.”

Mark L. Earley Sr. is a former Attorney General of the Commonwealth of Virginia. He served
in the State Senate of Virginia for 10 years and also served as President and CEO of Prison
Fellowship. He is currently the Founder and Principal of the Earley Legal Group, LLC.

Senator John S. Edwards served as United States A ttomey for the Western District of Virginia
from 1980 to 1981. He also served as a member of Roanoke City Council and as Vice-Mayor.
He has represented the 21st District of Virginia since 1996. Sen. Edwards currently serves on
the Commerce and Labor, Courts of Justice and Privileges and Elections Committees in the
Virginia State Senate. He also serves on a number of board and commissions and he is
Chairman of the Virginia Code Commission and serves on the Board of Govemors of the
Virginia Bar Association. Sen. Edwards practices law in Roanoke and is an adjunct professor of
law at the University of Virginia Law School teaching trial advocacy.

Joseph Flood is a partner at Sheldon, Flood and Haywood, PLC since 2009 where his practice
focuses on serious felony cases at trial, appeal, and in post-conviction, including death penalty
cases. He is a former Capital Defender for Northem Virginia, and a nationally recognized death
penalty expert. Following his clerkship for the Hon. Joseph W. Hatchet, of the Eleventh Circuit
Federal Court of Appeals, Mr. Flood began representing death row inmates in Alabama.
Subsequently, he worked for ten years as a trial lawyer defending individuals charged with
capital crimes in New York. Since 2005, Mr. Flood has represented more than a dozen people
facing the death penalty in Virginia. Mr. Flood is also a consulting attomey for the Mexican
government through the Mexican Capital Legal Assistance Program. He received his
undergraduate degree in history and psychology in 1988 and his law degree in 1992, both from
the University of Wisconsin.

Michael Herring, a Richmond native, has been the Commonwealth’s Attomey for the City of
Richmond since January 3, 2006. Prior to his election as Commonwealth’s Attomey, he was a
partner at the law firm of Bricker & Herring where he practiced criminal law and medical
malpractice law. In 2002, he joined the faculty at the University of Richmond School of Law as
an adjunct professor. Mr. Herring served as the first African-American President of the
Richmond Bar Association in 2005, was Chairman of the Board of Governors of the Criminal
Law Section of the Virginia State Bar in 2004 and 2005, and is a past Chairman of the Third
District Attorney Disciplinary Committee. Mr. Herring began his career as an associate at
Hunton & Williams before joining the Office of the Commonwealth’s Attorney in 1992, where
he served as the head of the Narcotics Interdiction Team and as a senior felony trial attorney for
Violent Crimes and Narcotics Offenses. He returned to the private sector in 1996 at the law firm
of LeClair Ryan. As an attorney, he has mentored students through many Richmond Public
Schools programs. He received his undergraduate degree in economics in 1987 and his law
degree in 1990, both from the University of Virginia.

Gail Starling Marshall is an attorney in private practice in Orange County, Virginia. Ms.
Marshall graduated Order of the Coif from the University of Virginia Law School in 1968 and
taught on the faculty there from 1968 to 1972, when she joined the Washington, D.C. law firm of
Hogan & Hartson (now Hogan & Lovells). After becoming partner in the Litigation Department,

she later left to become Deputy Attorney General of Virginia in Richmond, a post she held for
eight years (1986-1994). Since 1994, Ms. Marshall has been in private practice and also serves
as the town attorney in Rapidan, Virginia. She was awarded the Virginia State Bar’s Lewis F.
Powell Jr. Pro Bono Award in 2011 and also serves on the Board of the Virginia Capital
Representation Resource Center.

TABLE OF CONTENTS

EXECUTIVE SUMMARY i

L INTRODUCTION: GENESIS OF THE ABA’S DEATH PENALTY A NTS PROJECT i

IL. HIGHLIGHTS OF THE REPORT iii

Til. SUMMARY OF THE REPORT. xiii
CHAPTER ONE: AN OVERVIEW OF VIRGINIA’S DEATH PENALTY SYSTEM

L DEMOGRAPHICS OF VIRGINIA’S DEATH ROW.

I. ‘THE STATUTORY EVOLUTION OF VIRGINIA’S DEATH PENALTY SCHEME.......

Ill. THE PROGRESSION OF A VIRGINIA DEATH PENALTY CASE FROM ARREST TO EXECUTION
CHAPTER TWO: LAW ENFORCEMENT IDENTIFICATION AND INTERROGATION

PROCEDURES. 25
INTRODUCTIUONTO THE ISSUE. 25
1 FACTUAL DISCUSSION. 28
IL. ANALYSI 33

CHAPTER THREE: COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER

TYPES OF EVIDENCE 69
INTRODUCTION TO THE ISSUE 69
L FACTUAL DISCUSSION. 71
IL. ANALYSI 74

CHAPTER FOUR: CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES.....

INTRODUCTION TO THE ISSUE
I. FACTUAL DISCUSSION.
IL. ANALYSI

CHAPTER FIVE: PROSECUTION.

INTRODUCTION TO THE ISSUE
I. FACTUAL DISCUSSION.
IL. ANALYSI

CHAPTER SIX: DEFENSE SERVICES

INTRODUCTION TO THE ISSUE

I. FACTUAL DISCUSSION.
IL. ANALYSI
CHAPTER SEVEN: THE DIRECT APPEAL AND PROPORTIONALITY REVIEW...
INTRODUCTION
I. FACTUAL DISCUSSION.
IL. ANALYSI:

CHAPTER EIGHT: STATE HABEAS CORPUS PROCEEDINGS
INTRODUCTION TO THE ISSUE
I. FACTUAL DISCUSSION.
IL. ANALYSI
CHAPTER NINE: CLEMENCY
INTRODUCTION TO THE ISSUE

I. FACTUAL DISCUSSION.
IL. ANALYSI


CHAPTER TEN: CAPITAL JURY INSTRUCTIONS

INTRODUCTION TO THE ISSUE
I. FACTUAL DISCUSSION.
I. ANALYSI
CHAPTER ELEVEN: JUDICIAL INDEPENDENCE AND VIGILANCE
INTRODUCTION TO THE ISSUE
I. FACTUAL DISCUSSION.
IL. ANALYSI
CHAPTER TWELVE: TREATMENT OF RACIAL AND ETHNIC MINORITIES...
INTRODUCTION TO THE ISSUE
I. FACTUAL DISCUSSION.
IL. ANALYSI
CHAPTER THIRTEEN: MENTAL RETARDATION AND MENTAL ILLNESS
INTRODUCTION TO THE ISSUE
I. FACTUAL DISCUSSION.
I. ANALY SIS-MENTAL RETARDATION.
Il. ANALY SIS-MENTAL ILLNESS

APPENDIX A


EXECUTIVE SUMMARY
I. INTRODUCTION: GENESIS OF THE ABA’S DEATH PENALTY ASSESSMENTS PROJECT

Faimess and accuracy together form the foundation of the American criminal justice system. As
the United States Supreme Court has recognized, these goals are particularly important in cases
in which the death penalty is sought. Our system cannot claim to provide due process or protect
the innocent unless it provides a fair and accurate system for every person who faces the death
penalty.

Over the course of the past thirty years, the American Bar Association (ABA) has become
increasingly concerned that capital jurisdictions too often provide neither fairness nor accuracy
in the administration of the death penalty. In response to this concern, on February 3, 1997, the
ABA called for a nationwide suspension of executions until serious flaws in the system are
identified and eliminated. The ABA urges capital jurisdictions to (1) ensure that death penalty
cases are administered fairly and impartially, in accordance with due process, and (2) minimize
the risk that innocent persons may be executed.

In the autumn of 2001, the ABA, through the Section of Individual Rights and Responsibilities,
created the Death Penalty Due Process Review Project (the Project).! The Project conducts
research and educates the public and decision-makers on the operation of capital jurisdictions’
death penalty laws and processes in order to promote fairness and accuracy in death penalty
systems, both in the U.S. and abroad. The Project encourages legislatures, courts, administrative
bodies, and state and local bar associations to adopt the ABA’s Protocols on the Fair
Administration of the Death Penalty; provides technical assistance to state, federal, international,
and foreign stakeholders on death penalty issues; and collaborates with other individuals and
organizations to develop new initiatives to support reform of death penalty processes.

To assist the majority of capital jurisdictions that have not yet conducted comprehensive
examinations of their death penalty systems, the Project began in February 2003 to examine
several U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which
they achieve faimmess and minimize the risk of executing the innocent. To date, the Project has
conducted assessments examining the administration of the death penalty in Alabama, Arizona,
Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, and Tennessee and released
reports on these states’ capital punishment systems in 2006, 2007, 2011, and 2012. In addition to
this report on Virginia, the Project will also release a report on Texas.

The assessments are not designed to replace the comprehensive state-funded studies necessary in
capital jurisdictions, but instead are intended to highlight individual state systems’ successes and
inadequacies. Past state assessment reports have been used as blueprints for state-based study
commissions on the death penalty, served as the basis for new legislative and court rule changes
on the administration of the death penalty, and generally informed decision-makers’ and the
public’s understanding of the problems affecting the fairness and accuracy of their state’s death
penalty system.

' The Project was originally established as the “ABA Death Penalty Moratorium Implementation Project.”

i

All of these assessments of state law and practice use as a benchmark the protocols set out in the
ABA Section of Individual Rights and Responsibilities’ 2001 publication, Death without J ustice:
A Guide for Examining the Administration of the Death Penalty in the United States (the
Protocols). While the Protocols are not intended to cover exhaustively all aspects of the death
penalty, they do cover seven key aspects of death penalty administration: defense services,
procedural restrictions and limitations on state post-conviction and federal habeas corpus
proceedings, clemency proceedings, jury instructions, an independent judiciary, racial and ethnic
minorities, and mental retardation and mental illness. Additionally, the Project added five new
areas to be reviewed as part of the assessments in 2006: preservation and testing of DNA
evidence, law enforcement identification and interrogation procedures, crime laboratories and
medical examiners, prosecution, and the direct appeal process and proportionality review.

Each assessment is conducted by a state-based assessment team. The teams are comprised of or
have access to current or former judges, state legislators, current or former prosecutors, current
or former defense attorneys, active state bar association leaders, law school professors, and
anyone else whom the Project felt was necessary. Team members are not required to support or
oppose the death penalty or a suspension of executions.

The findings of each assessment team provide information on how state death penalty systems
are functioning in design and practice and are intended to serve as the bases from which a state
can launch a comprehensive self-examination, impose reforms, or in some cases, impose a
suspension of executions. Because capital punishment is the law in each of the assessment states
and because the ABA takes no position on the death penalty per se, the assessment teams
focused exclusively on capital punishment laws and processes and did not consider whether
states, as a matter of morality, philosophy, or penological theory, should have the death penalty.

This executive summary consists of a summary of the findings and proposals of the Virginia
Death Penalty Assessment Team. The body of this Report sets out these findings and proposals
in more detail, followed by an Appendix. The conclusions drawn by the Virginia Assessment
Team as to whether the Commonwealth is in compliance with each ABA Protocol were the
product of consensus decision-making.

The Project and the Virginia Death Penalty Assessment Team have attempted to describe as
accurately as possible information relevant to the Virginia death penalty. The Assessment Team
recognizes that members of the Virginia legal and policy communities use the Virginia Reporter;
however, to maintain consistency with past reports which cite regional reporters, this Report’s
citations to case law reference the Southeastern Reporter. The Project would appreciate
notification of any factual errors or omissions in this Report so that they may be corrected in any
future reprints.

II. HIGHLIGHTS OF THE REPORT
A. Overview of the Virginia Death Penalty Assessment Team’s Work and Views

To assess fairness and accuracy in Virginia’s death penalty system, the Virginia Death Penalty
Assessment Team researched the twelve issues that the ABA identified as central to the analysis
of the fairness and accuracy of a state’s capital punishment system. The Virginia Death Penalty
Assessment Report devotes a chapter to each of the following areas: (1) overview of the
Commonwealth’s death penalty; (2) law enforcement identification and interrogation procedures;
(3) collection, preservation, and testing of DNA and other types of evidence; (4) crime
laboratories and medical examiner offices; (5) prosecution; (6) defense services; (7) the direct
appeal process and proportionality review; (8) state habeas corpus proceedings; (9) clemency;
(10) jury instructions; (11) judicial independence; (12) treatment of racial and ethnic minorities;
and (13) mental retardation and mental illness.? Chapters begin with an introduction to provide a
national perspective of the issues addressed by each chapter, followed by a “Factual Discussion”
of the relevant laws and practices in Virginia. The final section of each chapter, entitled
“Analysis,” examines the extent to which Virginia is in compliance with the ABA Protocols.

It is the Assessment Team’s unanimous view that, as long as Virginia imposes the death penalty,
it must be reserved for a narrow category of the worst offenders and offenses, ensure heightened
due process, and minimize the risk of executing the innocent.

B. Recent Improvements to Fairness and Accuracy in Capital Cases

The Commonwealth has enacted some reforms in recent years that improve faimess and
accuracy of capital proceedings. For example, some law enforcement agencies across the
Commonwealth have adopted policies that improve the likelihood of accurate eyewitness
identifications. Adherence to such policies both reduces the risk of wrongful conviction and
improves the ability of law enforcement to identify the real perpetrators. The Virginia
Department of Criminal Justice Services’ Model Policy on Eyewitness Identification incorporates
recent advancements in social scientific research, including specific policies consistent with the
ABA Best Practices on conducting an in-person or photographic lineup. While the Model Policy
is not mandatory for Virginia law enforcement agencies, many of the policies recommended
have been widely adopted. In addition, in 2014, the Virginia Law Enforcement Professional
Standards Commission’s accreditation standards will require agencies seeking accreditation to
develop a written policy for documenting line-up procedures and for conducting showups.’

Further, the reliability and timeliness of forensic investigation in death penalty cases in the
Commonwealth is enhanced by accreditation of crime laboratories and medical examiner offices
in the state, as well as certification of the professionals employed by those entities. Each of the
four crime laboratories that comprise the Virginia Department of Forensic Science (DFS) has
voluntarily obtained accreditation through the American Society of Crime Laboratory

This report is not intended to cover all aspects of the Commonwealth’s capital punishment system, and, as a
result, it does not address a number of important issues, such as the treatment of death row inmates while
incarcerated or method of execution.

3 A showup is an identification procedure in which the eyewitness directly confronts the suspect alone.

ili

Directors/Laboratory Accreditation Board International Accreditation Program. DFS has also
established guidelines for all law enforcement agencies on the collection, packaging,
preservation, and transference of physical evidence to its laboratories. Virginia medical
examiner offices have obtained voluntary accreditation through the National Association of
Medical Examiners and the Commonwealth’s Chief Medical Examiner is a forensic pathologist
licensed to practice medicine and certified by the American Board of Pathology. Each of the
medical examiner offices employ forensic pathologists who are similarly licensed and certified.
The Commonwealth has also created two oversight commissions, the Virginia Scientific
Advisory Committee and the Virginia Forensic Science Board, to review actions of the
Commonwealth’s crime laboratories and medical examiners to ensure the validity, reliability,
and timely analysis of forensic evidence.

Finally, Virginia’s establishment of Regional Capital Defender offices, staffed by attorneys and
support staff specially qualified to represent capital defendants at trial, has significantly
improved the quality of representation available to Virginia’s indigent defendants in death
penalty cases. These offices are also staffed with mitigation and investigative assistance—
positions that are critical to defense of those facing the death penalty. Virginia also provides
funding to the Virginia Capital Representation Resource Center to represent death row inmates
in state habeas, federal habeas, and clemency proceedings. Because state and federal habeas
claims in death penalty cases are often complex and require a special understanding of death
penalty law, funding an organization specifically dedicated to capital post-conviction
representation helps to ensure that death row inmates’ claims are fully researched and developed.

Further, the Virginia Indigent Defense Commission also oversees numerous aspects of the
provision of defense services in the Commonwealth, including the certification of attomeys
providing representation to Virginia’s indigent capital defendants and death row inmates, as well
as the hiring and monitoring of the Capital Defenders.

C. Areas and Recommendations for Reform

Throughout its review, the Assessment Team identified several areas of concern. This section
describes those areas viewed by the Team to be most in need of reform, followed by specific
recommendations endorsed by the Assessment Team for that purpose. The Team’s full list of
areas for concern and recommendations for reform may be found throughout the main
Assessment Report, organized by chapter.

| Pretrial Areas for Reform

Eyewitness Identification Procedures (Chapter 2). Between 1989 and 2013, at least 18 people
in Virginia whose convictions were based largely on eyewitness misidentifications have been
exonerated of serious violent felonies following DNA testing or the discovery of new evidence.
In one case, an innocent person remained in prison for 15 years for an offense he did not commit
while the actual perpetrator remained free and committed an assault on another victim. While
the Virginia Department of Criminal Justice Services (DCJS) has developed a Model Policy on
Eyewitness Identification, a 2011 DCJS report found that a majority of law enforcement agencies
in Virginia do not use double blind administration—in which both the officer and the witness are

iv

unaware of the identity of the suspect during a lineup—despite the fact that the Model Policy has
recommended this method since 2005. The DCJS report also found that 69% of the law
enforcement agency policies it reviewed do not require documented lineup results. Moreover,
only 10% of responding agencies’ policies indicated a preference for video- or audio-recording
the procedure, rather than a written recordation of the procedure.

Recommendations

Virginia should require law enforcement agencies to adopt the Virginia Department of Criminal
Justice Service’s (DCJS) Model Policy on Eyewitness Identification. Any new mule or law on
eyewitness identification procedures should also include remedies for agencies’ noncompliance
with the identification procedures. Such remedies need not mean an automatic exclusion of the
eyewitness’s identification.

Virginia DCJS should also incorporate its Model Policy on Eyewitness Identification into its
minimum training requirements for law enforcement officers.

Interrogation Procedures in Capital Cases (Chapter 2). Virginia does not require law
enforcement agencies to electronically record a suspect’s interrogation and confession, nor has
any Virginia agency developed a model policy on interrogation recording. The Northwestern
University School of Law Center on Wrongful Convictions found that only nine Virginia law
enforcement agencies record a majority of their interrogations.

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. DCJS could assist with developing the statute, or Virginia could look to the several
other states that have already implemented interrogation recording statutes, including the
neighboring jurisdictions of Maryland, North Carolina, and the District of Columbia.

With respect to interrogations, recording should include the reading of Miranda rights, the
Miranda waiver, all questioning by law enforcement, and the suspect’s final statement.
Exceptions to the recording requirement should be permitted in the case of certain exigent
circumstances, such as a sudden utterance by the suspect, a suspect’s unequivocally expressed
desire not to be recorded, and cases in which the recording equipment fails and officers made a
good faith attempt to record the interrogation. The statute must also provide defendants with a
remedy if law enforcement failed to record the interrogation in violation of the statute;
importantly, however, the remedy need not mean a total exclusion of all unrecorded stat t

Discovery in Capital Cases (Chapter 5). Virginia’s discovery rules are more restrictive than in
other states and the federal system in providing capital defendants the basic information
necessary to prepare and present a defense. By comparison, discovery rules governing civil
cases are far more widely-encompassing than those required in a death penalty case in the
Commonwealth.

While some prosecutors in capital cases provide more discovery than the rules require, when
discovery conforms to Virginia’s rules, 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. Because capital cases
bring particular focus on issues of mitigation, Virginia’s limited rules of discovery can also put
the prosecutor in the difficult position of deciding for him or herself which evidence in a police
file may support a sentence less than death. Despite prosecutors’ efforts to act in good faith,
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.

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. In
recognition of the sensitive issues regarding the cooperation and safety of witnesses, the rules
should include a provision for protective orders to protect witness safety in appropriate cases.
Importantly, such discovery contributes to earlier and better informed disposition of capital cases
through guilty pleas. Because of the added costs and protracted nature of capital litigation, such
dispositions likely would more than offset the minimal cost of providing broader discovery of
information already in the hands of the Commonwealth.

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. Prosecutors should have in their possession a
complete copy of the investigating agencies’ case file and must conduct a full inspection of the
complete contents of the file.

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, such as mitigating evidence in death penalty cases.

Capital Charging (Chapter 5). After a capital indictment, a Commonwealth’s Attorney may
determine—in his or her discretion—that seeking the death penalty is not appropriate in a
particular case. However, existing Virginia law does not explicitly provide for such
circumstances and may even permit a court to impose a death sentence where the prosecutor
does not seek it.

Recommendation

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. Notably, this
amendment would provide a cost savings to the Commonwealth as prosecutors would be able to
seek a sentence less than death in a capital case, with the concomitant savings in capital litigation
by the court, prosecution, and defense. It would also provide additional options to
Commonwealth’s Attorneys in determining how to prosecute a capital case as new information
relevant to the sentencing decision arises after indictment.

vi


| Post-Trial Areas for Reform

Biological Evidence Preservation (Chapter 3). Virginia requires automatic preservation of
biological evidence in capital cases; however, the preservation of evidence which likely affects
death-eligibility—such as evidence in non-capital cases—is not required to be preserved for as
long as the defendant remains incarcerated. Further, the Virginia Code prohibits petitioners from
seeking a writ of habeas corpus if the Commonwealth fails to preserve biological evidence—
even in capital cases. Long-term preservation of biological evidence would not only improve the
Commonwealth’s ability to identify wrongful convictions, but would also be an effective tool to
assist in identifying and convicting actual perpetrators.

Recommendations
When biological evidence is collected in a felony case, Virginia should require long-term
preservation of such evidence. The experience of the many other states that have enacted
provisions, which call for blanket preservation of biological evidence in criminal cases, may
prove instructive. In addition, the Commonwealth should provide notice to all parties whenever
testing may consume the only available sample of evidence.

In order to encourage preservation and promote adherence to existing evidence preservation
requirements, state law also 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.

Access to Post-Conviction Testing of Biological Evidence (Chapter 3). Virginia’s post-
conviction testing statute limits the ability of death row inmates to prove their innocence or
otherwise demonstrate that they should not have been subject to the death penalty in several
important respects. The law, for example, does not permit testing to prove that the inmate did
not engage in aggravating conduct, which the judge or jury must consider before determining the
sentence in a death penalty case. The statute also requires an inmate to prove by clear and
convincing evidence that the results of DNA testing will prove his or her innocence. Virginia is
one of the only states to require clear and convincing evidence of innocence, rather than a
“reasonable probability” of favorable results, in order to be granted access to testing of biological
evidence. It has been observed that this high burden “ensures that it is virtually impossible for a
convict to be exonerated through DNA evidence since without access to the evidence he is
unable to prove those things necessary to allow him access.” Further, the statute does not
provide for testing based on suspected unreliability of a prior DNA test.

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. The Commonwealth should also
ensure that Virginia law grants access to testing to an individual who is able to show that a
reasonable probability exists that she or he is innocent of the offense or did not engage in
aggravating conduct in a death penalty case.

vii

Appellate Representation (Chapter 6). While Virginia should be commended for ensuring
continuity of counsel in death penalty cases by assigning trial counsel to represent the defendant
on direct appeal, this system does not ensure that a defendant receives high quality legal
representation on appeal, which is the last stage that the defendant has a right to effective
counsel. Trial counsel frequently are not possessed of the time or special skills required of
appellate representation, which require thorough review of the trial record anew, as well as
extensive brief-writing. This is in contrast to the appellate representation provided by the Office
of the Attorney General on behalf of the prosecution in any appeals in death penalty cases in
Virginia. Furthermore, compensation of counsel employed by the Attorney General to handle
capital appeals is oftentimes far greater than that afforded to attorneys employed by the Regional
Capital Defenders who undertake appellate representation.

RP 7

Virginia should create a position for an appellate defender within the Regional Capital Defender
Office in Richmond. If and when direct appellate representation in a capital case is required, the
attorneys serving in this position will be specially trained to investigate and present the unique
issues raised in capital appeals. In cases where an appellate defender cannot represent the
defendant, Virginia must fully compensate counsel for actual time and services performed.

State Habeas Corpus Proceedings (Chapter 8). One of the biggest areas for concen in
Virginia’s present death penalty system is the nature and timing of the Commonwealth’s state
post-conviction process, known as state habeas corpus. In most respects, the state habeas
process in Virginia emphasizes finality of convictions and death sentences over fairness.
Importantly, many of the limitations placed on Virginia death row inmates petitioning for habeas
relief are not imposed in other capital jurisdictions.

For example, Virginia imposes strict and limited time constraints on inmates filing state habeas
petitions. Other capital jurisdictions provide death row inmates with a significantly longer
period in which to file a petition for state post-conviction relief, or do not impose a specific
deadline at all. Additionally, Virginia permits an execution date to be scheduled once a state
habeas petition has been denied. This practice denies Virginia death row inmates the full-year
for research, preparation, and filing of their federal petition that would otherwise be available.
Because Virginia cannot impose this restriction on inmates not sentenced to death, this
effectively provides less due process to those under a death sentence than that which is afforded
to non-capital inmates in Virginia.

Furthermore, factual disputes in state habeas proceedings appear to be resolved based on review
of affidavits submitted by the parties rather than through evidentiary hearings. This is
particularly troublesome because many claims that are commonly presented in state habeas
proceedings involve complex factual considerations that typically require the court to consider
evidence that is not in the trial record and that cannot be fully developed in the absence of an
evidentiary hearing. Only five capital habeas cases between 1995 and 2012 have been granted
evidentiary hearings, and the courts ultimately dismissed the habeas petition following the
hearing in four of these cases. During this same time period, no court has approved funding for
mitigation, investigative, or expert assistance in a death row inmate’s case for state habeas relief.
Instead, the Virginia Capital Representation Resource Center—the entity responsible for

viii


representation of most death row inmates—must often request pro bono assistance from such
service providers.

Recommendations

Virginia should

e 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. This approach also affords more process to all parties involved, as the
decision to grant or deny a hearing and the court’s final order may then be appealed to the
Supreme Court of Virginia;

e 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;

e 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

e Provide funding so that state habeas attorneys can hire mitigation specialists,
investigators, and experts needed to fully develop and present their clients’ claims.

| Special Issue Areas

Capital Jury Instructions (Chapter 10). The Virginia Assessment Team recognizes the
complexities inherent in designing capital jury instructions that are both comprehensible to
laypersons and accurate statements of the law. As shown by the findings of the Capital Jury
Project, however, a significant number of Virginia’s capital jurors have failed to understand
several aspects of Virginia’s capital sentencing procedure. On some issues, a majority of
surveyed jurors expressed understandings of the law that contradicted U.S. Supreme Court
decisions. The Capital Jury Project found, for instance, that

e 77% of surveyed Virginia capital jurors erroneously believed that the jury had to
be unanimous in order to consider evidence as mitigating;

e 53% did not realize that they could consider any evidence as mitigating evidence;
and

e 51% believed that they were required to find mitigating evidence beyond a
reasonable doubt.

Juror confusion on these issues was higher than average in Virginia among the thirteen states in
which the Capital Jury Project conducted its study. Many Virginia jurors also misunderstood
whether the death penalty was required in a particular case. An alarming 53% of surveyed
Virginia capital jurors believed that the death penalty was required by law if they found that the
murder was heinous, vile, or depraved, and 41% believed death was required if they found that
the defendant would be dangerous in the future. In fact, however, a finding of aggravation is
only a factor for the jury to consider in determining whether to sentence a defendant to death.

Since the abolition of parole in Virginia in 1995, capital jurors may also experience confusion in
predicting whether the defendant “would commit criminal acts of violence that would constitute
a continuing serious threat to society.” With the abolition of parole, this aggravating factor

ix

requires the prosecution to prove that the defendant would pose a threat to others during his or
her life prison term, not while in society at large.

Juror confusion is likely to persist unless Virginia’s capital jury instructions are revised to
enhance clarity, instructions are presented to jurors in a more organized and logical manner, and
judges are more willing to respond to juror inquiries regarding questions of law.

Recommendations

Virginia capital jurors should be instructed that

e Jurors are never required to retum a verdict of death. Jurors may return a life sentence,
even in the absence of any mitigating factor and even when both aggravating factors have
been established beyond a reasonable doubt, if they do not conclude that the defendant
should receive the death penalty;

e Mitigating evidence does not need to be found beyond a reasonable doubt;

e A finding of mitigating evidence need not be unanimous;

e Any evidence presented during the guilt and sentencing phases of the trial may be
considered as mitigating evidence; and

e Jurors must consider mitigating evidence if they find an aggravating factor.

In addition,
e Jurors should be instructed on individual mitigating factors when such an instruction is
supported by the evidence and requested by the defendant; and
e In applicable cases in which jurors are considering whether the defendant poses a
continuing threat to society, 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.

Persons with Mental Retardation/Intellectual Disability (Chapter 13). The Virginia statute
detailing how intellectual functioning testing must be conducted for the purposes of determining
whether a defendant has mental retardation seeks to ensure that only scientifically valid IQ tests
are admissible. However, under Virginia law, a defendant must present an IQ score of 70 or
below to prove that she or he has mental retardation. This is a requirement that has been
expressly rejected by the American Association on Intellectual and Developmental Disabilities
(AAIDD) and is contrary to the modem, scientific understanding of mental retardation.

Virginia law also requires the determination of whether a defendant has mental retardation to be
made as part of the sentencing phase of a death penalty case. This is problematic because jurors
hearing a mental retardation claim after the determination of guilt may be strongly influenced by
evidence of future dangerousness or vileness. Additionally, determining mental retardation at
the sentencing phase means that the Commonwealth may conduct a long, expensive, and
ultimately unnecessary capital proceeding.


Recommendations

Virginia should amend its mental retardation statute such that it fully conforms to the AAIDD
definition. The statute should not require a particular IQ score to prove mental retardation and
should allow courts to take into account errors of measurement like the Flynn effect and practice
effect. In addition, the statute should clearly provide that formal mental retardation testing
administered before the age of 18 is not required to prove mental retardation.

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, so
long as the defendant can present some credible evidence that she or he has mental retardation.
This should not, however, preclude the defendant from presenting a mental retardation claim in
the sentencing phase of the trial in the event that a pretrial hearing is not granted or if the
defendant does not prevail in the hearing.

There are distinct advantages to determining mental retardation in a pretrial hearing. If a
defendant is determined to have mental retardation prior to commencement of trial, the
Commonwealth is spared a long, expensive, and unnecessary capital proceeding. This frees the
court, prosecution, and defense counsel to devote their limited resources to other matters.
Several jurisdictions have already adopted these procedures.

Persons with Severe Mental Illness (Chapter 13). Virginia’s rules and laws do not afford
adequate protection of individuals with several mental disorders or illnesses in death penalty
cases. For example, the Commonwealth does not prohibit death sentences or executions of
persons who, at the time of the offense, had significant limitations in both intellectual
functioning and adaptive behavior caused by a disability other than mental retardation, such as
dementia or traumatic brain injury. Under this standard, a defendant who suffered a serious
brain injury at age 18 or older would be eligible for the death penalty, even if, as a result of the
injury, she or he exhibits every other characteristic of mental retardation. Furthermore, Virginia
does not forbid execution of the severely mentally ill under any standard. Much as the AAIDD
supports a ban on the execution of persons with mental retardation, several leading mental health
groups and the American Bar Association support a prohibition of the death penalty for a narrow
group of severely mentally ill individuals whose ability to control their conduct at the time of the
offense was significantly impaired.

Recommendations

The diminished culpability of defendants with mental retardation arises from their intellectual
and adaptive limitations, not the cause of these limitations. Accordingly, persons who suffer
from these limitations should be afforded the same protection under the law, irrespective of the
cause of the disability. Thus, 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. Under this standard,
the defendant would have to prove that she or he suffers from the same intellectual functioning
and adaptive behavior limitations as a person with mental retardation.

xi


Recommendation

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, 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 (Chapters 5, 7, & 12). Virginia has continued to expand the number and type of
death penalty-eligible offenses since reinstatement of the death penalty. While, in 1975, an
offender convicted of first-degree murder was only eligible for the death penalty if she or he was
found guilty of one of three predicate offenses, this number rose to one out of fifteen separate
predicate offenses by 2011. Of the many cases in which a death sentence could have been
sought but was not because of a plea agreement, there often is no appeal and thus no official
record of salient facts relative to the offense and the offender. A 2002 report by the Joint
Legislative Audit and Review Commission (JLARC) of the Virginia General Assembly
examined capital-eligible homicide cases in Virginia from 1995 to 1999. The JLARC report
commented on the problems with respect to data collection on Virginia’s death penalty and
recommended that the Commonwealth create a searchable, publicly available tool on the
charging and sentencing of all capital-eligible offenses.

Creation of a data collection tool would not only assist the Supreme Court of Virginia in
reviewing the proportionality of death sentences imposed in the Commonwealth, but would also
assist litigants in presenting claims on proportionality issues and aid prosecutors in making
charging decisions. Obtaining accurate, reliable data on whether race, geography, or any other
improper factor influences outcomes in capital cases is also essential to ensuring that the
Commonwealth provides due process and equal protection of the law.

Recommendation

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. It is imperative
that the collection of this data be sanctioned by the Supreme Court of Virginia to ensure its
reliability, trustworthiness, and admissibility. Other affected stakeholders, including prosecutors,
capital defense counsel, and trial courts, should also be consulted in creation of such a database.

xii


III. SUMMARY OF THE REPORT

Chapter One: Overview of Virginia’s Death Penalty System

In this chapter, the Assessment Team examined the demographics of Virginia’s death row, the
statutory evolution of Virginia’s death penalty scheme, and the general progression of a death
penalty case through Virginia’s capital punishment system from arrest to execution.

Chapter Two: Law Enforcement Identification and Interrogation Procedures

Eyewitness misidentifications and false confessions are two of the leading causes of wrongful
convictions. In order to reduce the number of convictions of innocent persons and to ensure the
integrity of the criminal justice process, the rate of eyewitness misidentifications and of false
confessions must be reduced. In this Chapter, the Assessment Team reviewed Virginia’s laws,
procedures, and practices on law enforcement identifications and interrogations and assessed
whether they comply with the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on law enforcement
identification and interrogation procedures is illustrated in the following chart.

Law Enforcement Identification and Interrogation Procedures

ABA Protocol Cc i Level

Protocol #1: Law enforcement agencies should adopt guidelines for conducting lineups and

in a manner that their likely accuracy. Every set of guidelines should

address at least the subjects, and should incorporate at least the social scientific teachings and Partial Compliance

best practices, set forth in the ABA Best Practices for Promoting the Accuracy of Eyewitness
ion Procedures.

Protect! #2: Fe enforcement officers and prosecutors should receive periodic training on how
for lineups and as well as training on non- Partial Compliance
ave i for interviewing witnesses.

Protocol #8: Law enforcement agencies and prosecutors’ offices should periodically update the
for lineups and to advances in social scientific Partial Compliance
research and in the inuing lessons of practical experience.

Protocol #4: V ideo-record the entirety of custodial interrogations of suspects at police precincts,
courthouses, detention centers, or other ‘places where suspects are held for questioning, or, where Partial Compliance
id ig is rd the entirety of such custodial interrogations.

rdi
Protocol #5: Ensure adequate funding to ensure the proper development, implementation, and

i 1
updating policies and relating to and i Insufficient Information’

Protocol #6: Courts should have the discretion to allow a properly qualified expert to testify Partial Compl:
both pretrial and at trial on the factors affecting eyewitness accuracy. ompnance:

Protocol #7: Whenever there has been an identification of the defendant prior to trial, and
identity is a central issue in a case tried before a jury, courts should use a specific instruction,
tailored to the needs of the individual case, explaining the factors to be considered in gauging
lineup accuracy. If, in relevant cases, the court finds a sufficient risk of misidentification based Partial Compliance
on cross-racial factors, judges should have available model jury instructions that inform juries
that the cross-racial nature of the identification may affect the reliability of an eyewitness
identification.

Protocol #8: Every law enforcement agency should provide training programs and disciplinary
to ensure that i gi personnel are prepared and accountable for their Partial Compliance
performance.

| Insufficient information to determine statewide compliance.

xiii

| Law Enforcement Identification and Interrogation Procedures (Cont’d)

ABA Protocol Cc i Level |

Protocol #9: Ensure that there is adequate opportunity for citizens and investigative personnel
to report misconduct in investigations.

Partial Compliance

Nationwide, approximately 75% of wrongful convictions have involved an eyewitness
misidentification, including at least eighteen cases in Virginia between 1989 and 2013.

The Virginia Department of Criminal Justice Services (DCJS) has developed a Model Policy on
Eyewitness Identification that substantially comports with the ABA Best Practices, which
incorporates recent advancements in social scientific research. Several of the procedures
recommended in the model policy, such as sequential viewing of lineup participants and double
blind administration, have been shown to substantially reduce the risk of eyewitness
misidentification. However, the DCJS model policy is not mandatory, and as of 2011, only 46%
of Virginia’s law enforcement agencies had enacted policies “substantially similar” to DCJS’s
model policy. Law enforcement officers are also not required to receive training on the model
policy. Some Virginia law enforcement agencies have also failed to enact policies on showups, a
suggestive eyewitness identification procedure in which the witness directly confronts the
suspect without any other participants.

Virginia courts have allowed expert testimony on factors affecting the accuracy of eyewitness
identifications under “narrow circumstances.” The Supreme Court of Virginia permits, but does
not require, a trial court to instruct the jury on the factors to be considered in gauging the
accuracy of an eyewitness identification.

In addition, false confessions have contributed to approximately 25% of wrongful convictions in
the United States, including two high-profile murder cases in Virginia.

A video-recording of a suspect’s interrogation may help the court, jury, and prosecutor to
evaluate the credibility of a confession. Virginia, however, does not require law enforcement
agencies to video-record a suspect’s interrogation, nor has DCJS developed a model policy on
this area. While some individual law enforcement agencies have implemented their own policies
on the recording of interrogations, others have not. Moreover, some of the policies reviewed by
the Assessment Team require only audio recording of the interrogation or do not require the
entirety of the interrogation to be recorded. This practice can result in law enforcement
electronically recording only the defendants’ confessions but not the interrogations that preceded
their final statements.

Chapter Three: Collection, Preservation, and Testing of DNA and Other Types of Evidence

DNA testing has proved to be a useful law enforcement tool to establish guilt as well as
innocence. The availability and utility of DNA testing, however, depends on the state’s laws and
on its law enforcement agencies’ policies and procedures concerning the collection, preservation,
and testing of biological evidence. In this chapter, the Assessment Team examined Virginia’s
laws, procedures, and practices concerning not only DNA testing, but also the collection and

xiv

preservation of all forms of biological evidence, and we assessed whether the Commonwealth
complies with the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on the collection,
preservation, and testing of DNA and other types of evidence is illustrated in the following
chart.

Collection, Preservation, and Testing of DNA and Other Types of Evidence

ABA Protocol Cc i Level

Protocol #1: Preserve all biological evidence for as long as the defendant remains incarcerated. Partial Compliance

Protocol #2: All biological evidence should be made available to defendants and convicted
persons upon request and, in regard to such evidence, such defendants and convicted persons may
seek appropriate relief notwithstanding any other provision of the law. Jurisdictions should Partial Compliance
provide access to post-conviction DNA testing to comport, at a minimum, with the standards and

set forth in the ABA Criminal Justice Standards on DNA Evidence.

Protocol #3: Every law enforcement agency should establish and enforce written procedures and

policies governing the preservation of biological evidence. Partial Compliance

Protocol #4: Provide adequate funding to ensure the proper preservation and testing of biological

evidence. In Compliance

Since the reinstatement of the death penalty in 1975, sixteen Virginia inmates, including one
death row inmate, have been exonerated through post-conviction DNA testing.

In Virginia, the Department of Forensic Science (DFS) is solely responsible for collecting,
preserving, and testing forensic evidence in criminal investigations. DFS operates pursuant to its
Evidence Handling and Laboratory Capabilities Guide, which provides detailed instructions
relating to the collection, storage, preservation, and testing of biological evidence. DFS is
exclusively responsible for analyzing evidentiary material associated with criminal investigations
for all state and local law enforcement agencies, which include 247 police departments and 124
sheriff organizations. DFS is also responsible for analyzing evidentiary material for all medical
examiners and 130 prosecutorial agencies within the Commonwealth of Virginia.

In capital cases, Virginia law provides an automatic right to preservation of biological evidence
and requires that such evidence be preserved “until the judgment is executed.” Virginia’s
preservation requirements in non-capital cases, however, are subject to two critical limitations,
both of which may affect the ability of those under a death sentence to prove wrongful
conviction or that the person should not have been subject to the death penalty. First, the right to
preservation is not automatic. The failure to provide for blanket preservation in criminal cases is
an outlier practice among states that have codified preservation requirements. Second, the
Virginia preservation statute includes a fifteen-year time limit on the preservation of DNA
evidence in non-capital cases. Failure to provide for long-term preservation of biological
evidence may result in the destruction of potentially exculpatory evidence prior to the discovery
of advanced technological measures that could allow testing on previously untestable evidence.

2 Where necessary, the recommendations Contained in this Chart and all subsequent charts were condensed to

accommodate spatial concems. The are not substantively different from the
recommendations contained in the “Analysis” section of each chapter.

XV

The law also prohibits an inmate from seeking habeas corpus relief in the event that the
Commonwealth fails to properly preserve biological evidence as required under the law.

With respect to testing of preserved biological evidence, the Virginia Code sets out a series of
procedures that must be followed in order for a prisoner to obtain post-conviction DNA testing.
With access to testing, an inmate may be able to obtain a “writ of actual innocence” from the
Supreme Court of Virginia. The post-conviction testing statute, however, limits the ability of
death row inmates to prove their innocence or otherwise demonstrate that the inmate should not
have been subject to the death penalty in several important respects.

The law, for example, does not permit testing to prove that the inmate did not engage in
aggravating conduct, which the judge or jury must consider before determining the sentence in a
death penalty case. The statute requires an inmate to prove by clear and convincing evidence
that the results of DNA testing will prove his/her innocence. Virginia is one of the only states to
require clear and convincing evidence of innocence, rather than a “reasonable probability” of
favorable results, in order to be granted access to testing of biological evidence. It has been
observed that this high burden “ensures that it is virtually impossible for a convict to be
exonerated through DNA evidence since without access to the evidence he is unable to prove
those things necessary to allow him access.”

The statute also limits post-conviction testing to two sets of circumstances. First, testing may be
permissible where the evidence was not known or available at the time the conviction became
final. Second, testing may be allowed if the particular testing procedure was not available at the
DFS at the time the conviction became final. The statute does not provide for testing based on
suspected unreliability of a prior test absent either of the above criteria.

Chapter Four: Crime Laboratories and Medical Examiner Offices

With courts’ increased reliance on forensic evidence and the questionable validity and reliability
of recent tests performed at a number of unaccredited and accredited crime laboratories across
the nation, the importance of crime laboratory and medical examiner office accreditation,
forensic and medical examiner certification, and adequate funding of these laboratories and
offices cannot be overstated. In this chapter, the Assessment Team examined these issues as
they pertain to Virginia and assessed whether Virginia’s laws, procedures, and practices comply
with the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on crime laboratories and
medical examiner offices is illustrated in the following chart.

Crime Laboratories and Medical Examiner Offices

ABA Protocol Compli Level_|f
Protocol #1: Crime ies and medical examiner offices should be accredited, examiners
should be certified, and procedures should be standardized and published to ensure the validity, In Compliance
reliability, and timely analysis of forensic evidence.
I Protocol #2: Crime laboratories and medical examiner offices should be adequately funded. Partial Compliance II


Each of the four crime laboratories that comprise the Virginia Department of Forensic Science
(DFS) has voluntarily obtained accreditation through the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB) International Accreditation Program.
Although DFS is required to conduct forensic testing for capital defendants and death row
inmates in certain circumstances, DFS typically services state and local law enforcement
agencies, medical examiners, and prosecutors. Indigent capital defense service providers in
Virginia routinely send biological evidence to out-of-state private crime laboratories.

DFS has established guidelines for all law enforcement agencies on the collection, packaging,
preservation, and transference of physical evidence to its laboratories. DFS has also created an
extensive database of guidelines on the collection, testing, and preservation of biological
evidence.

Virginia medical examiner offices have obtained voluntary accreditation through the National
Association of Medical Examiners (NAME). Moreover, the Chief Medical Examiner is a
forensic pathologist licensed to practice medicine and certified by the American Board of
Pathology. Each of the medical examiner offices employ forensic pathologists who are similarly
licensed and certified as well as medicolegal death investigators who have received certification
through the American Board of Medicolegal Death Investigators.

The Commonwealth has created two oversight commissions, the Virginia Scientific Advisory
Committee and the Virginia Forensic Science Board, to review actions of the Commonwealth’s
crime laboratories and medical examiners to ensure the validity, reliability, and timely analysis
of forensic evidence.

Due to high demand, testing delays in the toxicology section of DFS have caused backlogs in
some medical examiner cases. However, DFS has eliminated its backlog for biological testing
and the Office of the Chief Medical Examiner appears to process cases quickly, aside from
waiting for toxicology results. This suggests that funding for the two entities is mostly adequate,
although additional funding appears necessary in order for DFS to hire additional toxicologists.

Chapter Five: Prosecution

The character, quality, and efficiency of the entire criminal justice system is shaped in great
measure by the manner in which the prosecutor exercises his/her broad discretionary powers,
especially in capital cases where prosecutors have enormous discretion deciding whether or not
to seek the death penalty. Furthermore, prosecutors are held to a higher ethical standard than
other attorneys and must balance their duty to protect the public with their duty to ensure that the
rights of the accused are honored. In this Chapter, the Assessment Team examined Virginia’s
laws, procedures, and practices relevant to its prosecution of capital cases and assessed whether
they comply with the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on the prosecution of
criminal cases is illustrated in the following chart.

xvii

Prosecution

ABA Protocol Compli Level
Protocol #1: Each prosecutor's office should have written policies governing the exercise of Not in Compliance
discretion to ensure the fair, efficient, and effective of criminal law. iP
Protocol #2: Each prosecutor’s office should establish procedures and policies for evaluating
cases that rely upon eyewitness identification, confessions, or the testimony of jailhouse Not in Compliance

snitches, informants, and other witnesses who receive a benefit.

Protocol #3: Prosecutors should fully and timely comply with all legal, professional, and ethical
obligations to disclose to the defense information, documents, and tangible objects and should

permit reasonable inspection, copying, testing, and photographing of such disclosed documents Fartial Compliance
and tangible objects.

Protocol #4: Prosecutors should ensure that law enforcement agencies, laboratories, and other

experts under their direction or control are aware of and comply with their obligation to inform Insufficient Information

about. or mitigating evidence.

Protocol #5: Each jurisdiction should establish policies and procedures to ensure that
prosecutors and others under the control or direction of prosecutors who engage in misconduct
of any kind are i i that any such is disclosed to the criminal | Insufficient Information
defendant in whose case it occurred, and that the prejudicial impact of any such misconduct is
remedied.

Protocol #6: The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the prosecution team, including Insufficient Information
training relevant to capital prosecutions.

The Virginia Assessment Team faced limitations in obtaining information related to the analysis
contained in this Chapter. The Assessment Team submitted a letter and survey to ten
Commonwealth’s Attorney Offices, which included the jurisdictions which have imposed six or
more death sentences in Virginia since the reinstatement of capital punishment. The survey
requested aggregate data on the application of the death penalty in the prosecutor’s jurisdiction, as
well as information on qualification and training requirements of prosecutors who handle capital
cases, funding and budget limitations, and capital charging and discovery practices. As only one
Commonwealth’s Attorney Office responded to the Assessment Team’s inquiry, the Assessment
Team has relied on publicly available information on the training, discovery and charging
practices, and discipline of Virginia’s prosecutors, including statutory and case law, media
reports, and studies conducted by other entities.

Virginia’s Commonwealth’s Attorneys have broad discretion in determining whether to seek the
death penalty. Virginia’s two aggravating factors—one of which must be found in order for a
jury to sentence a defendant to death—appear to offer little guidance or clarity to prosecutors in
determining when to seek the death penalty. As a result, the standards and policies goveming the
decision to seek the death penalty vary greatly among Virginia’s prosecutors. One prosecutor, for
example, has stated that he will seek the death penalty “even if it’s questionable as [to] whether or
not it fits” into one of the statutory capital-eligible offenses.

Problems exist in other areas as well. There have been a number of capital convictions in the
Commonwealth that were later overtumed due to uncorroborated eyewitness misidentifications,
false confessions, and untruthful jailhouse informant testimony, underscoring the need for
prosecutors to closely scrutinize cases when relying on these leading causes of wrongful
conviction. For example, at least eighteen people have been exonerated of serious violent felonies
in Virginia between 1989 and 2013 due to eyewitness misidentifications. False confessions have

Xvili

led to a number of wrongful convictions in Virginia, including one case in which the defendant
was sentenced to death.

Virginia’s discovery rules are more restrictive than in other states and the federal system in
providing capital defendants the basic information necessary to prepare and present a defense.
Notably, the discovery rules governing civil cases are far more widely-encompassing than those
required in a criminal—or even capital—case in Virginia. When discovery conforms to
Virginia’s uniquely-limited rules, a capital defendant may go to trial without knowing who will
testify against him/her. S/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. A capital
defendant also 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.

Because capital cases bring particular focus to issues of mitigation, Virginia’s limited rules of
discovery may place the prosecutor in the difficult position of deciding for him/herself which
evidence in a police file may support a sentence less than death. Recent high profile wrongful
conviction cases in Virginia also demonstrate instances of serious failures to comply with Brady.
Despite prosecutors’ efforts to act in good faith, such a system makes Brady violations more
likely and can result in extensive post-conviction litigation, reversals and retrials.

Finally, it appears that Virginia prosecutors have rarely been investigated for their conduct
leading to wrongful conviction or for otherwise contributing to an unfair proceeding against a
capital defendant. The Center for Public Integrity’s study of criminal appeals, which included
both capital and non-capital cases from 1970 to June 2003, revealed 127 Virginia cases in which a
defendant alleged prosecutorial error or misconduct. In twenty-two cases, the appellate court
reversed or remanded the defendant’s conviction, sentence, or indictment due to prosecutorial
error that prejudiced the defendant.

While the Virginia State Bar’s disciplinary process is meant to serve as a means to investigate and
discipline the misconduct of all attorneys, it does not appear designed to effectively address
allegations of prosecutorial error, negligence, or misconduct. Of the more than 500 public
disciplinary orders issued by Virginia State Bar District Committees and the Disciplinary Board
from 2008 to 2012, only three related to prosecutors.

Chapter Six: Defense Services

Effective capital case representation requires substantial specialized training and experience in
the complex laws and procedures that govern a capital case, full and fair compensation to
lawyers who undertake capital cases, and sufficient resources for investigators and experts.
States must address counsel representation issues in a way that will ensure that all capital
defendants receive effective representation at all stages of their cases as an integral part of a fair
justice system. In this Chapter, the Assessment Team examined Virginia’s laws, procedures, and
practices relevant to defense services and assessed whether they comply with the ABA’s
policies.

A summary of Virginia’s overall compliance with the ABA’s policies on defense services is
illustrated in the following chart.

xix

Defense Services
ABA Protocol Compli Level

Protocol #1: Guideline 4.1 of the ABA Guidelines on the Appointment and Performance of

Defense Counsel in Death Penalty Cases (ABA Guidelines)—The Defense Team and Partial Compliance
Supporting Services

Protocol #2: Guideline 5.1 of the ABA Guidelines—Qualifications of Defense Counsel Partial Compliance
Protocol #3: Guideline 3.1 of the ABA Guidel Desi ofa ible Agency Partial Compliance
Protocol #4: Guideline 9.1 of the ABA Guidelines—Funding and Compensation Partial Compliance
Protocol #5: Guideline 8.1 of the ABA Guidelines—Training Partial Compliance

Provision of Counsel

Virginia is now one of eleven states that provides representation to capital defendants through a
statewide public defender system. The Commonwealth complies with several components of the
ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty
Cases (ABA Guidelines). For example, Virginia guarantees the appointment of at least two
attorneys at trial and on direct appeal for indigent defendants, and ensures the appointment of at
least one attorney during state habeas corpus proceedings. The Commonwealth has also
established four Regional Capital Defender offices (RCDs), which employ attomeys and support
staff specially qualified to represent capital defendants at trial, and continues to fund a non-profit
organization that provides capital defense representation during state habeas corpus proceedings.
Furthermore, the Virginia Indigent Defense Commission (Commission) oversees numerous
aspects of the provision of defense services in the Commonwealth, including the certification of
attorneys providing representation to Virginia’s indigent capital defendants and death row
inmates, as well as the hiring and monitoring of the Capital Defenders. Virginia also has
established minimum qualification standards applicable to capital trial, appellate, and state
habeas counsel. Such steps have significantly improved the quality of representation available to
Virginia’s indigent defendants in death penalty cases.

Virginia’s current delivery of defense services in death penalty cases, however, is not without
problems. For example, the Commonwealth’s qualification standards focus primarily on
experiential requirements and do not include an assessment of counsel’s skills in relation to death
penalty cases, which the Assessment Team believes is essential to the provision of consistent,
effective capital defense representation. Virginia does not require attorneys representing
indigent defendants at a capital trial to successfully complete training on each of the areas
required by the ABA Guidelines, and direct appeal and state habeas corpus counsel need no
training prior to obtaining initial certification from the Commission.

Virginia also has not promulgated any standards for performance in death penalty cases, which is
in stark contrast to the performance standards and oversight provided by the Commission in non-
capital cases. No entity monitors the performance of all defense counsel to ensure that the
capital client receives high quality legal representation, nor is Virginia able to ensure that
corrective action is taken when complaints about counsel’s performance arise. In addition,
capital trial counsel is, at times, not appointed at the earliest stage of capital proceedings.

XX

Additional quality control measures are needed to ensure that every attorney representing a
capital defendant or death row inmate possesses the necessary skills and demonstrates a
commitment to zealous advocacy.

Provision of Ancillary Services and Experts

The RCDs appear to be staffed with investigators and mitigation specialists to support the
defense. Virginia has also adopted a new law recognizing the necessity of ex parte requests for
expert assistance.

Virginia law, however, does not guarantee assignment of a mitigation specialist and investigator
in each capital case, which can result in the wasteful practice of counsel having to perform these
important functions. The appointment of experts and ancillary professional services is also left
to the discretion of individual circuit court judges who may select experts based on the cost of
services or prior work for the prosecution. In addition, Virginia has not adopted training
requirements for non-attorney members of the capital defense team, nor does it appear that
Virginia provides adequate funding for effective education and training of its non-attorney
capital defense team members. Finally, courts do not grant funding for expert services, including
experts trained to screen for mental and psychological disorders, to assist death row inmates in
developing or presenting constitutional claims during capital state habeas proceedings.

Funding

The Commonwealth has funded four Regional Capital Defender offices, each of which employ
attomeys, investigators, and mitigation specialists to provide capital representation at trial and
direct appeal. Trial courts appear to authorize funding for expert, investigative, mitigation, and
other ancillary services in cases where other court-appointed counsel represents a capital
defendant. Virginia also provides periodic billing in death penalty cases for other court-
appointed counsel and does not compensate trial counsel via flat fee or lump-sum contracts.

However, Virginia does not ensure funding for the full cost of high quality legal representation,
including for the defense team and outside experts selected by counsel. It appears, for example,
that the compensation rates for assistant RCDs are insufficient to recruit and retain experienced
attomeys with the necessary skills to effectively represent clients facing the death penalty. The
reimbursement rate for court-appointed counsel also differentiates between in and out-of-court
time, which can provide a disincentive for counsel to advocate in the best interests of the client,
which may include accepting a plea offer. The Virginia Supreme Court’s Office of the
Executive Secretary has also dramatically reduced the reimbursement amount provided to
counsel in some capital cases without explanation, effectively denying payment to counsel for
many hours worked on behalf of a capital client. In some cases, it has authorized only a flat fee
to reimburse counsel for work performed on behalf of a death row inmate on direct appeal.

With respect to expert, investigative, mitigation, and other ancillary services, trial courts may
limit the hours of work that these professionals may perform on behalf of an indigent capital
defendant. Significant court and counsel time can also be diverted to resolution of funding
questions and courts may be reticent to fully fund needed defense services in cases requiring

additional language services and extensive travel. Furthermore, since 1995, it appears that no
Virginia court has provided funding for experts, investigators, and mitigation specialists during
state habeas corpus proceedings or clemency proceedings.

Appellate Representation

Trial counsel are often appointed to represent a capital defendant on direct appeal. While this
practice ensures continuity of counsel in death penalty cases, it does not ensure that a defendant
receives high quality legal representation on direct appeal, which is particularly important given
it is the last stage that the defendant has a right to effective counsel. Trial counsel frequently are
not possessed of the time or special skills necessary for appellate representation, which requires
thorough review of the trial record anew, as well as extensive brief-writing. This is in contrast to
the appellate representation provided by the Office of the Attorney General on behalf of the
prosecution in any appeals in death penalty cases in Virginia. Furthermore, compensation of
counsel employed by the Attorney General to handle capital appeals is often far greater than that
afforded to attorneys employed by the RCDs who undertake appellate representation.

Chapter Seven: The Direct Appeal and Proportionality Review

One important function of appellate review is to ensure that death sentences are not imposed
arbitrarily or based on improper biases. Meaningful comparative proportionality review, the
process through which a sentence of death is compared with sentences imposed on similarly-
situated defendants to ensure that the sentence is not disproportionate, is the primary method to
prevent arbitrariness and bias at sentencing. In this Chapter, the Assessment Team examined
Virginia’s laws, procedures, and practices and assessed whether they comply with the ABA’s
policies on the direct appeal process and proportionality review.

A summary of Virginia’s overall compliance with the ABA’s policies on the direct appeal
process and proportionality review is illustrated in the following chart.

The Direct Appeal and Proportionality Review

ABA Protocol Cc i level

Protocol #1: In order to (1) ensure that the death penalty is being administered in a rational,
non-arbitrary manner, (2) provide a check on broad prosecutorial discretion, and (3) prevent
discrimination from playing a role in the capital decision making process, direct appeal courts
should engage in meaningful proportionality review that includes cases in which a death
sentence was imposed, cases in which the death penalty was sought but not imposed, and cases
in which the death penalty could have been but was not sought.

Partial Compliance

The Supreme Court of Virginia undertakes proportionality review in death penalty cases by
comparing the death sentence in the case at bar to (1) previous cases in which a death sentence
was imposed, and (2) previous cases in which a life sentence was imposed if the defendant,
following the denial of his/her appeal by the Court of Appeals of Virginia, sought and received
discretionary review of his/her case by the Supreme Court of Virginia. This review, however,
excludes many relevant cases needed to better ensure proportionality and provide a check on
arbitrary sentencing in death penalty cases. For example

xxii

e Proportionality review excludes many cases where the death penalty was sought but not
imposed, and excludes all cases in which the death penalty could have been but was not
sought;

e The Supreme Court of Virginia has held that the sentences of co-defendants are irrelevant
in determining the validity of a death sentence. Therefore death sentences have been
imposed and carried out on defendants for crimes in which a co-defendant received only
a term of years; and

e The existing proportionality review typically offers minimal analysis of the similarities
between the facts of the case at bar and previous cases in which a death sentence was
imposed. While the Supreme Court of Virginia has reviewed the death sentences
imposed in over one hundred cases since 1974 per this statutorily-mandated
proportionality review, it never has vacated a death sentence on this ground.

A review that relies chiefly on cases in which the death penalty was imposed will inevitably
increase the likelihood that a death sentence will be upheld, while potentially ignoring several
factually similar cases that did not warrant a death sentence and providing little safeguard against
arbitrariness in capital sentencing.

Finally, application of Virginia’s death penalty laws must be sufficiently limited and definite that
the Supreme Court of Virginia can reasonably conduct a meaningful proportionality review.
Since reinstating the death penalty in 1975, the Virginia General Assembly has repeatedly
expanded the number of predicate offenses eligible for the death penalty: from three in 1975 to
fifteen in 2011.° The ever-widening reach of the Virginia death penalty statute increases the
importance that the Supreme Court of Virginia undertake a comprehensive and meaningful
proportionality review in every death penalty case.

Chapter Eight: State Habeas C orpus Proceedings

The importance of state post-conviction proceedings—called habeas corpus in Virginia—to the
fair administration of justice in capital cases cannot be overstated. Because capital defendants
may receive inadequate representation at trial and on direct appeal, and because some
constitutional violations are unknown or cannot be litigated at trial or on direct appeal, state post-
conviction proceedings often provide the first real opportunity to establish meritorious
constitutional claims. For these reasons, all post-conviction proceedings should be conducted in
a manner designed to permit the adequate development and judicial consideration of all claims.
In this Chapter, the Assessment Team examined Virginia’s laws, procedures, and practices
relevant to state habeas corpus proceedings, and assessed whether they comply with the ABA’s
policies.

A summary of Virginia’s overall compliance with the ABA’s policies on state post-conviction
proceedings is illustrated in the following chart.

3 The actual number of capital-eligible offenses is greater than fifteen as most of the predicate offenses described
in the Virginia Code contain several death-eligible offenses. See generally VA. CODE ANN. § 18.2-31 (2013).

xxiii

State Habeas C orpus Proceedings

ABA Protocol c i Level

Protocol #1: All post-conviction proceedings at the trial court level should be conducted in a
manner designed to permit adequate development and judicial consideration of all claims. Trial
courts should not expedite post-conviction proceedings unfairly; if necessary, courts should A
stay executions to permit full and deliberate consideration of claims. Courts should exercise Not in Compliance
independent judgment in deciding cases, making findings of fact and conclusions of law only
after fully and carefully considering the evidence and the applicable law.

Protocol #2: The state should provide meaningful discovery in post-conviction proceedings.
Where courts have discretion to permit such discovery, the discretion should be exercised to Not in Compliance
ensure full discovery.

Protocol #3: Trial judges should provide sufficient time for discovery and should not curtail

discovery as a means of expediting the Not in Compliance

Protocol #4: When deciding post-conviction claims on appeal, state appellate courts should
address explicitly the issues of fact and law raised by the claims and should issue opinions that Partial Compliance
fully explain the bases for di i of claims.

Protocol #5: On the initial state post- icti i state post- iction courts
should apply a “knowing, understanding, and voluntary” standard for waivers of claims of Not applicable
i error not preserved properly at trial or on appeal.

Protocol #6: When deciding post-conviction claims on appeal, state appellate courts should
apply a “knowing, understanding, and voluntary” standard for waivers of claims of
constitutional error not raised properly at trial or on appeal and should liberally apply a plain
error mule with respect to errors of state law in capital cases.

Not in Compliance

Protocol #7: The state should establish post-conviction defense organizations, similar in nature
to the capital resource centers defunded by Congress in 1996, to represent capital in Partial C
state post- federal habeas corpus, and clemency

Protocol #8: For state post-conviction proceedings, the state should appoint counsel whose
qualifications are consistent with the recommendations in the ABA Guidelines on the
Appointment and Performance of Defense Counsel in Death Penalty Cases. The state should Partial Compliance
compensate appointed counsel adequately and, as necessary, provide sufficient funds for
investigators and experts.

Protocol #9: State courts should give full retroactive CHEN Us S. Supreme Court decisions in
all proceedings, including second and and should Partial Compliance
consider in such proceedings the decisions of federal ee and district courts.

Protocol #10: State courts should permit second and successive post-conviction proceedings in
capital cases where counsels’ omissions or intervening court decisions resulted in possibly
meritorious claims not previously being raised, factually or legally developed, or accepted as
legally valid.

Not in Compliance

Protocol #11: In post-conviction proceedings, state courts should apply the harmless error
standard of Chapman v. California, which requires the prosecution to show that a Not in Compliance
error is harmless beyond a loubt.

Protocol #12: During the course of a moratorium, a “blue ribbon” commission should
undertake a review of all cases in which indivi have been either convicted or
wrongfully sentenced to death and should recommend ways to prevent such wrongful results in
the future.

Not Applicable

Virginia has adopted some laws and procedures that facilitate the development and consideration
of state habeas corpus claims. For instance, the Commonwealth supports the Virginia Capital
Representation Resource Center, an organization devoted to the representation of Virginia’s
death row inmates in state and federal habeas proceedings.

In general, however, Virginia’s capital habeas procedure is structured in a manner that makes it
difficult or, in some cases, impossible for a death row inmate to develop and present evidence
essential to meaningful habeas review. As a result, the substance of habeas claims often go

Xxiv

unaddressed, death sentences are rarely overtumed, and inmates are left with a limited record for
federal courts to review in subsequent proceedings.

In contrast with most states, where post-conviction petitions are first reviewed by the trial court,
Virginia statutory law grants the Supreme Court of Virginia original jurisdiction over state
habeas petitions in death penalty cases. Thus, habeas petitions are never reviewed by the court
where the inmate was originally tried, which is typically the court that is best able to evaluate
errors in the case. While the Supreme Court of Virginia has the authority to order the trial court
to hold an evidentiary hearing in capital habeas cases to resolve factual disputes, it has done so in
only a small fraction of cases. Instead, the Court typically relies on affidavits and other
documents, which are a poor substitute for an evidentiary hearing in which witnesses must
appear, testify, and be cross-examined. Virginia law also imposes strict filing deadlines and
procedural default rules on inmates in state habeas corpus proceedings, and does not permit
successive habeas petitions under any circumstances.

Furthermore, Virginia law provides that no court has jurisdiction over a death row inmate’s case
until after his/her habeas petition is filed. Thus, an inmate cannot obtain the materials and
resources needed to adequately research and present the claims in his/her petition. For instance,
death row inmates have no right to discovery in capital habeas proceedings, because there is no
court with the jurisdiction to grant it. Petitioners do not have access to documents that could
contain evidence of prosecutorial misconduct or ineffective assistance of counsel. When
questions of constitutional violations arise, Virginia habeas petitioners often must rely on the
federal courts to obtain relief. Death row inmates are also unable to seek the appointment of
mitigation specialists, investigators, and experts, who are often needed to fully develop state
habeas claims.

Finally, Virginia law permits execution dates to be scheduled before an inmate’s federal habeas
proceedings have concluded. To avoid being executed, the inmate must often file his/her federal
habeas petition earlier than is required under federal law. Collectively, these procedures appear
designed to accelerate the rate at which capital habeas petitions are resolved, sometimes at the
expense of a detailed and substantive review. Virginia stands apart from other U.S. death
penalty jurisdictions in this regard. Virginia’s non-capital habeas petitioners, for example, are
not subjected to most of these limitations.

Chapter Nine: Clemency

Given that the clemency process is the final avenue of review available to a death row inmate, it
is imperative that clemency decision-makers evaluate all of the factors bearing on the
appropriateness of a death sentence without regard to constraints that may limit a court’s or
jury’s decision-making. In this chapter, the Assessment Team reviewed Virginia’s laws,
procedures, and practices conceming the clemency process and assessed whether they comply
with the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on clemency is illustrated
in the following chart.

Clemency

ABA Protocol Compli Level
Protocol #1: The clemency decision-making process should not assume that the courts have
reached the merits on all issues bearing on the death sentence in a given case; decisions Insufficient Information
should be based upon an i ion of facts and ci
Protocol #2: The clemency decision-making process should take into account all factors that
might lead the decision maker to conclude that death is not an i
Protocol #3: Clemency decision-makers should consider as factors in their deliberations any
pattems of racial or geographic disparity in carrying out the death penalty in the jurisdiction,
including the exclusion of racial minorities from the jury panels that convicted and sentenced
the death row inmate.
Protocol #4: Clemency decision-makers should consider as factors in their deliberations the
inmate’s mental retardation, mental illness, or mental competency, if applicable, the inmate’s
age at the time of the offense, and any evidence relating to a lingering doubt about the
inmate’s guilt.
Protocol #5: Clemency decision-makers should consider should consider as factors in their
deliberations an inmate’s possible rehabilitation or performance of significant positive acts Insufficient Information
while on death row.
Protocol #6: In clemency proceedings, death row inmates should he represented by counsel
and such counsel should have qualifications consistent with the ABA Guidelines on the Partial Compliance
A and Performance of Defense Counsel in Death Penalty Cases.
Protocol #7: Prior to clemency hearings, death row inmates’ counsel should be entitled to
compensation and access to investigative and expert resources. Counsel also should be
provided sufficient time both to develop the basis for any factors upon which clemency Not in Compliance
might be granted that previously were not developed and to rebut any evidence that the State
may present in opposing clemency.
Protocol #8: Clemency proceedings should be formally conducted in public and presided
over by the Governor or other officials involved in making the clemency
Protocol #9: If two or more individuals are responsible for clemency decisions or for making
recommendations to clemency decision-makers, their decisions or recommendations should Not Applicable
be made only after in-person meetings with clemency
Protocol #10: Clemency decision-makers should he fully educated, and should encourage
education of the public, conceming the broad-based nature of clemency powers and the
limitations on the judicial system’s ability to grant relief under circumstances that might
warrant grants of clemency.
Protocol #11: To the maximum extent possible, clemency determinations should be
insulated from political considerations or impacts.

Insufficient Information

Insufficient Information

Partial Compliance

Not in Compliance

Partial Compliance

In Compliance

The Governor of Virginia has the sole power to commute a death sentence in the
Commonwealth. A governor may, but is not required to, request that the Virginia Parole Board
investigate and report to the Governor on any case in which clemency has been requested. Since
Virginia reinstated the death penalty in 1975, five Govemors have granted clemency to eight
death row inmates.

Generally, it is difficult to determine the reasons for which Governors grant or deny pleas for
clemency, or the process by which they make their decisions. Although the Governor is required
to transmit his/her reasons for granting clemency to the General Assembly, frequently these
reports convey little information beyond the mere fact that clemency has been granted. The
Governor is not required to make known his/her reasons for denying clemency.

In some cases, Virginia Govemors appear to have granted clemency due to lingering doubts of

guilt, as well as concerns over an inmate’s possible mental retardation or mental illness.
However, it also appears that in some instances Virginia Govemors were not fully informed or

xxvi

did not fully understand the wide-ranging considerations for clemency, particularly when the
courts did not reach the merits of a particular issue that was later presented in an application for
clemency. In addition, death row inmates petitioning for clemency are not guaranteed counsel.
Attorneys who do undertake clemency representation may have neither sufficient time nor
resources to adequately develop clemency petitions on behalf of death row inmates. This may be
due, in part, to Virginia’s practice of issuing an execution warrant before the exhaustion of legal
remedies in the case.

Finally, Virginia has limited improper political influence on clemency decision-making. For
example, Virginia Governors may serve only one consecutive term in office which may, to some
extent, insulate the Governor from considerations of the political impact of his/her decision in a
death penalty case.

Chapter Ten: Capital J ury Instructions

In capital cases, jurors possess the “awesome responsibility” of deciding whether another person
will live or die. Due to the complexities inherent in capital proceedings, trial judges must present
fully and accurately, through jury instructions, the applicable law to be followed. Sometimes,
however, jury instructions are poorly written and poorly conveyed, leading to confusion among
jurors as to the applicable law and the extent of their responsibilities. In this chapter, the
Assessment Team reviewed Virginia’s laws, procedures, and practices on capital jury
instructions and assessed whether they comply with the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on capital jury instructions
is illustrated in the following chart.

Capital J ury Instructions

ABA Protocol Cc ii Level

Protocol #1: Each capital jurisdiction should work with attorneys, judges,

linguists, social scientists, psychologists, and j jurors themselves to evaluate the extent to

which jurors capital jury revise the instructions as necessary to Partial Compliance

ensure that jurors understand applicable law, and monitor the extent to which jurors
the revised to permit further revision as necessary.

Protocol #2: Jurors should receive written copies of “court instructions” (referring to the
judge’s entire oral charge) to consult while the court is instructing them and while Partial Compliance

Protocol #3: Trial courts should respond meaningfully to jurors’ requests for clarification of
instructions by explaining the legal concepts at issue and meanings of words that may have
different meanings in everyday usage and, where appropriate, by directly answering jurors’

questions about law.

Not in Compliance

Protocol #: Trial courts should instruct jurors clearly on applicable law in the jurisdiction
concerning alternative punishments and should, at the defendant’s request during the
sentencing phase of a capital trial, permit parole officials or other knowledgeable witnesses Not Applicable
to testify about parole practices in the state to clarify jurors’ understanding of alternative
sentences.

Protocol #5: Trial courts should not place limits on a jurors ability to give full

to any evidence that might serve as a basis for a sentence less than death. Notini Compliance

XXxVii

Capital J ury Instructions (Cont’d)

Protocol #6: Trial courts should instruct jurors that a juror may retum a life sentence, even
in the absence of any mitigating factor and even where an aggravating factor has been
established beyond a reasonable doubt, if the juror does not believe that the defendant
should receive the death penalty.

Not in Compliance

Protocol #7: In states where it is applicable, trial courts should make clear in jury
instructions that the weighing process for considering aggravating and mitigating factors
should not be conducted by determining whether there are a greater number of aggravating
factors than mitigating factors.

Not Applicable

As with many states, the sentencing process in Virginia is a complex, multi-step process. Jurors
must make findings on aggravating factors, compare mitigating and aggravating evidence, and
then decide whether to impose a sentence of life imprisonment or the death penalty. Perhaps due
to this complexity, it appears that jurors in Virginia death penalty cases experience confusion
regarding their roles and responsibilities in determining the sentence in the penalty phase of a
capital case. The Capital Jury Project, in particular, has revealed that a substantial number of
capital jurors in Virginia death penalty cases had several misconceptions about capital sentencing
procedures. The Capital Jury Project found, for instance, that

e 77% of surveyed Virginia jurors erroneously believed that the jury had to be
unanimous in order to consider evidence as mitigating;

e 53% did not realize they could consider any evidence as mitigating evidence; and

e 51% believed that they were required to find mitigating evidence beyond a
reasonable doubt.

Juror confusion on these issues was higher than average in Virginia among the thirteen states in
which the Capital Jury Project conducted its study. Many Virginia jurors also misunderstood
whether the death penalty was required in a particular case. An alarming 53% of surveyed
Virginia jurors believed that the death penalty was required by law if they found that the murder
was heinous, vile, or depraved, and 41% believed death was required if they found that the
defendant would be dangerous in the future. In fact, however, a finding of aggravation is only a
factor for the jury to consider in determining whether to sentence a defendant to death.

A study of mock jurors in Virginia also demonstrated a high rate of confusion. In that study,
44% of mock jurors who received only the standard instruction believed that the vileness
aggravating factor required the death penalty, and 46% believed the same about the “continuing
serious threat to society” factor.

These juror misconceptions may be due, in part, to jury instructions that do not fully apprise
jurors of their ability to consider any evidence that might serve as a basis for a sentence less than
death. While the Virginia model instructions comport with decisions by the Supreme Court of
Virginia, the instructions exclude significant explanatory legal rules and principles that might
help jurors understand how mitigating evidence should be considered. For example, jurors are
not instructed that mitigating evidence does not need to be found beyond a reasonable doubt.
Nor are jurors instructed that a finding of mitigating evidence need not be unanimous or that any
evidence may be considered as mitigating evidence. Moreover, while jurors receive specific

Xxvili

instructions on how to consider aggravating factors, they receive only a general description of
mitigating evidence.

Since the abolition of parole in Virginia in 1995, capital jurors may also experience confusion in
predicting whether the defendant “would commit criminal acts of violence that would constitute
a continuing serious threat to society,” one of Virginia’s two aggravating circumstances. With
the abolition of parole, this aggravating factor, commonly called “future dangerousness,”
requires the prosecution to prove that the defendant would pose a threat to others during his/her
life prison term, not while in society at large.

Virginia trial courts also do not appear to instruct jurors that they may retum a life sentence, even
in the absence of any mitigating factor and even where an aggravating factor has been
established beyond a reasonable doubt, if they do not believe that the defendant should receive
the death penalty.

Notwithstanding the confusion experienced by Virginia capital jurors, a review of capital cases
in Virginia indicates that trial courts typically respond to juror questions, including questions of
law, by instructing jurors to review the instructions already given.

Chapter Eleven: J udicial Independence and Vigilance

In some states, judicial elections, appointments, and confirmations are influenced by
consideration of judicial nominees’ or candidates’ purported views of the death penalty or of
judges’ decisions in capital cases. In addition, judges’ decisions in individual cases sometimes
are, or appear to be, improperly influenced by electoral pressures. This increases the possibility
that judges will be selected, elevated, and retained by a process that ignores the larger interests of
justice and fairness, focuses narrowly on the issue of capital punishment, and undermines
society’s confidence that individuals in court are guaranteed a fair hearing. In this chapter, the
Assessment Team reviewed Virginia’s laws, procedures, and practices on the election of judges
and on judicial decision-making processes and assessed whether they comply with the ABA’s
policies.

A summary of Virginia’s overall compliance with the ABA’s policies on judicial independence
is illustrated in the following chart.

Judicial Independence and Vigilance

ABA Protocol Cc i Level

Protocol #1: States should examine the faimess of their processes for the appointment and
election of judges and should educate the public about the importance of judicial independence to

the fair administration of justice and the effect of unfair practices in compromising the Partial Compliance
of the judiciary.

Protocol #2: A judge who has made any promise—public or private—regarding his/her

prospective decisions in capital cases that amounts to prejudgment should not preside over any In Compliance

capital case or review any death penalty decision in the jurisdiction.

Xxix

Judicial Independence and Vigilance (Cont'd)

Protocol #3: Bar associations and community leaders should speak out in defense of judges who
are criticized for decisions in capital cases, educate the public conceming the roles and
responsibilities of judges and pues in capital cases, and publicly oppose any questioning of

for judicial conceming their decisions in capital cases.
Purported views on the death penalty or on habeas corpus should not be litmus tests or important
factors in the selection of judges.

In Compliance

Protocol #4: A judge who observes ineffective lawyering by defense counsel should inquire into
counsel’s performance and, where appropriate, take effective actions to ensure defendant receives | _ Insufficient Information
a proper defense.

Protocol #5: A judge who that jal mi or other unfair activity has
occurred ae a capital case should take immediate action to address the situation and to ensure | Insufficient Information
the capital is fair.

Protocol #6: Judges should do all within their power to ensure that defendants are provided with
full discovery in capital cases. Trial courts should conduct, at a reasonable time prior to a
criminal trial, a conference with the parties to ensure that they are fully aware of their respective
discl ions under the i discovery rules, statutes, ethical standards, and the
federal and state constitutions and to offer the court’s assistance in resolving disputes over
disclosure obligations.

Not in Compliance

Members of Virginia’s judiciary at all levels are elected by a majority vote of each House of the
General Assembly. In order to be eligible for election before the legislature, would-be
candidates must be nominated to the Courts of Justice Committees by the local legislative
delegation in which particular vacancies occur. State and local bar associations will also conduct
interviews and submit questionnaires to judicial nominees.

Virginia’s nearly distinctive approach to the selection of judges may protect the independence of
the judiciary in several ways. Judicial candidates in Virginia, unlike judges elected through
popular elections, need not stage donor-funded campaigns, which can encourage candidates to
make promises about their prospective decisions. The nomination process, during which
candidates are interviewed publicly by the Courts of Justice Committees of both legislative
chambers, allows for meaningful public participation and coverage by the media of legislators’
questions of candidates. Bar associations in Virginia have also made efforts to educate the
public on the importance of an independent judiciary.

The Virginia State Bar, as well as state and local bar association questionnaires, do not elicit
responses from judicial candidates regarding their views on issues to come before the court such
as the death penalty. Judicial candidates may, however, be asked about their purported views on
the death penalty before the Courts of Justice Committees in the General Assembly. However,
the only records of judicial candidates’ statements are media reports of judicial nominees’
interviews with the Courts of Justice Committees as the hearings themselves are neither recorded
nor transcribed.

Legislative election in Virginia does have the potential to interfere with the independence of the
judiciary. Legislators have recently asked judges to defend, or otherwise comment on, their
decisions in criminal cases even when such decisions are wholly consistent with Virginia
Supreme Court jurisprudence. In addition, the effective functioning of the judiciary in Virginia
is also threatened by judicial vacancies and budget reductions to the court system.

The structure of Virginia law obligates trial courts to take effective action to ensure a capital
defendant receives a fair trial and to remedy unfair practices. Judges who may preside over
capital cases may, for example, participate in a special course offered by the Supreme Court of
Virginia. The occurrence of ineffective lawyering, prosecutorial misconduct, and trial court
errors, however, has nonetheless affected the fairness of the proceedings in death penalty cases in
the Commonwealth. Since 2000, eight of thirty-six Virginia death sentences imposed have been
reversed due to ineffective assistance of counsel, prosecutorial misconduct, and/or trial court
errors, excluding instances in which unfair practices occurred at trial and were deemed by an
appellate court as improper, but were found to be harmless error not prejudicial to the outcome
of the proceeding, or were procedurally barred from the appellate court’s consideration.

As evidenced by the exoneration of many individuals in Virginia due to the revelation of
exculpatory evidence that was never disclosed to the defense at trial, courts must be vigilant in
ensuring compliance with any disclosure obligations to prevent future miscarriages of justice.
No rule or law, however, requires Virginia trial courts to conduct a pretrial hearing to ensure that
all parties are aware of their respective disclosure obligations, notwithstanding the limited
disclosure permitted under the rules in the first instance.

Chapter Twelve: Treatment of Racial and Ethnic Minorities

To eliminate the impact of race in the administration of the death penalty, the ways in which race
affects the system must be identified, and strategies must be devised to root out discriminatory
practices. In this chapter, the Assessment Team examined Virginia’s laws, procedures, and
practices pertaining to the treatment of racial and ethnic minorities and assessed whether they
comply with the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on racial and ethnic
minorities and the death penalty is illustrated in the following chart.

Treatment of Racial and Ethnic Minorities

ABA Protocol Compli Level
Protocol #1: Jurisdictions should fully investigate and evaluate the impact of racial
discrimination in their criminal justice systems and develop strategies that strive to Partial Compliance

eliminate it.

Protocol #2: Jurisdictions should collect and maintain data on the race of defendants
and victims, on the circumstances of the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of the evidence for all potential capital Partial Compliance
cases. The data should be collected and maintained with respect to every stage of the
criminal justice process, from reporting of the crime through execution of the sentence.

Protocol #3: Jurisdictions should collect and review all valid studies already undertaken
to determine the impact of racial discrimination on the administration of the death
penalty and should identify and carry out any additional studies that would help

determine discriminatory impacts on capital cases. In conducting new studies, states Partial Compliance
should collect data by race for any aspect of the death penalty in which race could be a

factor.

Protocol #4: Where pattems of racial discrimination are found in any phase of the

death penalty’s administration, jurisdictions should develop, in consultation with legal Not Applicable

scholars, practitioners, and other appropriate experts, effective remedial and prevention
strategies to address the discrimination.

XXxi


Treatment of Racial and Ethnic Minorities (Cont’d)

Protocol #5: Jurisdictions should adopt legislation explicitly stating that no person shall
be put to death in accordance with a sentence sought or imposed as a result of the race
of the defendant or the race of the victim. To enforce such a law, jurisdictions should
permit defendants and inmates to establish prima facie cases of discrimination based Not in Compliance
upon proof that their cases are part of established racially discriminatory patterns. If
such a prima facie case is established, the State should have the burden of rebutting it
by evidence.

Protocol #6: Jurisdictions should develop and implement educational programs
applicable to all parts of the criminal justice system to stress that race should not be a
factor in any aspect of the death penalty’s administration. To ensure that such programs Partial Compliance
are effective, jurisdictions also should impose meaningful sanctions against any state
actor found to have acted on the basis of race in a capital case.

Protocol #7: Defense counsel should be trained to identify and develop racial
discrimination claims in capital cases. Jurisdictions also should ensure that defense Partial Compliance
counsel are trained to identify biased jurors during voir dire.

Protocol #8: Jurisdictions should require jury instructions stating that it is improper for
jurors to consider any racial factors in their decision~ ‘making and that jurors should Not in Compliance
report any evidence of racial discrimination in jury

Protocol #9: Jurisdictions should ensure that ies recuse themselves from capital
cases when any party in a given case basis for that In Compliance
the judge’s decision-making could be affected by sully discriminatory factors.

Protocol #10: States should permit defendants or inmates to raise directly claims of
racial discrimination in the imposition of death sentences at any stage of judicial

any rule that otherwise might bar such claims, Not in Compliance
unless the state proves in a given case that a defendant or inmate has knowingly and
intelligently waived the claim.

There has been one detailed examination of the effect of racial and ethnic discrimination on
Virginia’s capital punishment system since the reinstatement of the death penalty in the
Commonwealth. The Joint Legislative Audit and Review Commission (JLARC) conducted a
study, published in 2002, on several aspects of the Commonwealth’s death penalty system.
JLARC noted that “one of the most serious complaints is that the system is racially biased,
systemically exposing black persons who are arrested for capital murders to the death penalty in
larger percentages than their white counterparts.” Consequently, a portion of the study examined
whether decisions to seek the death penalty in capital-eligible cases are based on the race of the
defendant or the race of the victim. JLARC analyzed prosecutorial discretion at two stages of
the capital decision-making process: (1) whether prosecutors returned indictments for capital
murder in capital-eligible cases; and (2) whether prosecutors “chose to actually seek the death
penalty throughout the adjudication process.”

JLARC found that “prosecutors were over three times more likely to seek the death penalty [in a
capitally-indicted case] if the victim is white.” However, the authors noted that “when the
character of the victim was accounted for in the regression model, the association between the
race of the victim and[] whether the prosecutor sought the death penalty in the case lost its
statistical significance.”

Importantly, JUARC’s review was confined to an analysis of sample cases occurring within the

five-year period from 1995 through 1999. In addition, JUARC’s examination of race and
ethnicity focused on its impact on prosecutorial decision-making. The study was not designed to

XXxii


address the effect race may have on a jury’s decision to impose the death penalty, which is a
crucial decision-making point in the progression of a capital case.

Current data reveal general patterns that race or ethnicity may be affecting the administration of
the death penalty in Virginia. While these data are not conclusive evidence that racial
discrimination affects death penalty case outcomes, they do suggest that the issue needs to be
examined further. For example, since reinstating the death penalty through May 31, 2013,
Virginia has carried out 110 executions. Of those, eighty-nine inmates were executed for the
murder of a white victim. Four white offenders were executed for killing a black victim; by
contrast, thirty-seven black offenders have been executed for killing a white victim. There is
also evidence of potential racial bias in jury selection for capital murder cases. At least four
black defendants have been sentenced to death by all-white juries since the death penalty was
reinstated in Virginia.

Importantly, the unavailability of accurate and complete data affects the ability of the
Commonwealth to undertake a comprehensive review of its death penalty system. JLARC
researchers recounted the difficulty they encountered, reporting that “[s]electing a universe or
sampling frame for the study was complicated by the unique data problems associated with this
subject.” JLARC noted that “Virginia does not maintain a centralized database containing
information on murder cases that can be prosecuted as capital cases.”

Some actors in the Virginia criminal justice system, including law enforcement and judges,
receive mandatory education stressing that race should not be a factor in the administration of
justice. However, prosecutors and defense counsel are not necessarily educated about these
topics. For example, defense counsel training on developing and identifying racial
discrimination claims and juror bias is offered to and completed by some capital counsel, but it is
not required.

Chapter Thirteen: Mental Retardation and Mental IlIness

Mental Conditions Generally

First, the Assessment Team reviewed Virginia’s procedures and practices related to issues
common to capital defendants and death row inmates with mental retardation and mental illness.
Generally, these policies relate to the manner in which actors in the criminal justice system are
trained and receive the resources necessary to recognize and understand mental retardation and
mental illness in defendants and death row inmates.

A summary of Virginia’s overall compliance with the ABA policies that relate to both mental
retardation and mental illness is illustrated in the following chart.

Xxxili

Mental Retardation & Mental Illness

ABA Protocol Cc i Level

Protocol #1: All actors in the criminal justice system, including police, court officers, defense
attomeys, prosecutors, judges, jailers, and prison authorities, should be trained to recognize Partial Compliance
mental in capital and death row inmates.

Protocol #2: All actors in the criminal justice system, including police, court officers, defense
attomeys, prosecutors, judges, jailers, and prison authorities, should he trained to recognize Partial Compliance
mental illness in capital and death row inmates.

Protocol #3: During police igati and , special steps should be taken to
ensure that the Miranda rights of a mentally retarded person are sufficiently protected and that Partial Compliance
false, coerced, or garbled ions are not obtained or used.

Protocol #4: During police investigations and interrogations, special steps should be taken to
ensure that the Miranda rights of a mentally ill person are sufficiently protected and that false, Partial Compliance
coerced, or garbled are not obtained or used.

Protocol #5: The jurisdiction should have in place policies that ensure that persons who may have
mental retardation are represented by attorneys who fully appreciate the significance of their
clients’ mental limitations. These attommeys should have training sufficient to assist them in
recognizing mental retardation in their clients and understanding its possible impact on their
clients’ ability to assist with their defense, on the validity of their “confessions” (where Partial Compliance
applicable), and on their eligibility for capital punishment. These attorneys should also have
sufficient funds and resources (including access to appropriate experts, social workers, and
investigators) to determine accurately and prove the mental capacities and adaptive skills

deficiencies of a defendant who counsel believes may have mental

Protocol #6: The jurisdiction should have in place policies that ensure that persons who may have
mental illness are represented by attorneys who fully appreciate the significance of their clients’
mental disabilities. These attorneys should have training sufficient to assist them in recognizing
mental disabilities in their clients and understanding its possible impact on their clients’ ability to
assist with their defense, on the validity of their “confessions” (where applicable), and on their Partial Compliance
initial or subsequent eligibility for capital punishment. These attorneys should also have sufficient
funds and resources (including access to appropriate experts, social workers, and investigators) to
determine accurately and prove the disabilities of a defendant who counsel believes may have
mental i

Protocol #7: The jurisdiction should have in place mechanisms to ensure that, during court
proceedings, the rights of mentally retarded persons are protected against “waivers” that are the Partial Compliance
product of their mental disability.

Protocol #8: The jurisdiction should have in place mechanisms to ensure that, during court
proceedings, the rights of persons with mental disorders or disabilities are protected against
“waivers” that are the product of a mental disorder or disability. In particular, the jurisdiction
should allow a “next friend” acting on a death row inmate’s behalf to initiate or pursue available Partial Compliance
remedies to set aside the conviction or death sentence, where the inmate wishes to forego or
terminate post-conviction proceedings but has a mental disorder or disability that significantly
impairs his/her capacity to make a rational decision.

Virginia law enforcement and corrections officers are required to receive some training relevant
to recognizing and interacting with persons who have mental retardation or mental illness.
However, law enforcement officers are not required to receive training or follow any special
procedures with respect to the interrogation of a suspect with mental retardation or mental
illness. Such training is important as studies have demonstrated that persons with mental
retardation or mental illness face a special risk of falsely confessing to crimes. Moreover,
innocent defendants in Virginia, including former death row inmate Earl Washington, were
wrongly convicted after falsely confessing to a crime as a result of a mental disability or illness.
Comprehensive training and improved procedures in this area could help reduce the risk of false
confessions.

XXXxiv


In addition, trial judges do not appear to receive any training on these issues, and prosecutor
training is limited to litigation strategies for overcoming a defendant’s claim of mental
retardation. Comprehensive mental health training for trial judges and prosecutors is especially
important because these persons must rule on and make charging decisions with respect to
capital defendants.

Many Virginia capital defense attomeys, in particular those employed by the Regional Capital
Defender offices, receive training relevant to recognizing and assessing mental retardation and
mental illness. However, no such training is required by law. In particular, there is no
requirement that defense counsel be trained to recognize in and litigate incompetency claims for
their clients. Such training would be especially helpful in Virginia, as four death-sentenced
defendants since 2000 have waived significant rights at some stage of their case, such as the right
to counsel, to present mitigating evidence, or to appeal their conviction. Additionally, while
trial-level defense counsel have access to investigators, mitigation specialists, and experts
qualified to assess mental retardation, such assistance has not been funded by the
Commonwealth in state habeas corpus proceedings. Thus, habeas counsel lack the resources
necessary to effectively litigate a claim related to mental health.

Virginia has instituted some measures to protect defendants with mental retardation or mental
illness from waivers of rights that are the product of their mental disability. However, the court
is not required to conduct an evidentiary hearing before determining the defendant’s
competency, increasing the risk that relevant evidence on this issue will go unexplored.
Furthermore, Virginia, unlike the federal courts, does not permit a “next friend” to file a habeas
petition on a mentally ill death row inmate’s behalf.

Mental Retardation

In Atkins v. Virginia, the U.S. Supreme Court held that it is unconstitutional to execute offenders
with mental retardation. This holding, however, does not guarantee that individuals with mental
retardation will not be executed, as each state has the authority to make its own rules for
determining whether a capital defendant has mental retardation. In this section of Chapter
Thirteen, the Assessment Team reviewed Virginia’s laws, procedures, and practices pertaining to
mental retardation in connection with the death penalty and assessed whether they comply with
the ABA’s policies.

A summary of Virginia’s overall compliance with the ABA’s policies on mental retardation is
illustrated in the following chart.

Mental Retardation

ABA Protocol Cc ii Level

Protocol #1: Jurisdictions should bar the execution of individuals who have mental retardation,
as that term is defined by the American Association on Intellectual and Developmental
Disabilities. Whether the definition is satisfied in a particular case should be based upon a
clinical judgment, not solely upon a legislatively prescribed IQ measure, and judges and counsel Partial Compliance
should be trained to apply the law fully and fairly. No IQ maximum lower than seventy-five
should be imposed in this regard. Testing used in arriving at this judgment need not have been
performed prior to the crime.

XXXV

Mental Retardation (Cont’d)

Protocol #2: For cases commencing after Atkins v. Virginia or the state’s ban on the execution

of the mentally retarded (the earlier of the two), the determination of whether a defendant has

mental retardation should occur as early as possible in criminal proceedings, preferably prior to
phase of a trial and certainly before the penalty stage of a trial.

Not in Compliance

the

Protocol #3: Where | the defense has presented a substantial showing that the defendant may
have mental the burden of disp mental ion should be placed on the
prosecution. If, instead, the burden of proof is placed on the defense, its burden should be
limited to proof by a preponderance of the evidence.

In Compliance

Virginia enacted a statute banning the execution of mentally retarded offenders following the
U.S. Supreme Court’s decision in Atkins v. Virginia. The statute comports with some elements
of the modern, scientific understanding of mental retardation. Most notably, the law requires
appropriate clinical testing to be used in determining whether a capital defendant has mental
retardation. In addition, while the statute places the burden of proving mental retardation on the
defendant, s/he is required to prove mental retardation by only a preponderance of the evidence.

Virginia’s law on excluding persons with mental retardation from the death penalty, however, is
lacking in other respects. The statute requires a defendant to present an IQ score of seventy or
below to prove that s/he has mental retardation. The American Association of Intellectual and
Developmental Disabilities (AAIDD) and other clinically-accepted definitions of mental
retardation expressly reject a bright-line IQ score requirement. Virginia courts also will not
consider some clinically-accepted phenomena that can influence or artificially inflate a person’s
IQ score, such as the Flynn Effect. Furthermore, in at least one case, the Supreme Court of
Virginia interpreted the age of onset component of mental retardation to require documentation
of the disability, not simply manifestation, before age eighteen. This requirement is inconsistent
with the AAIDD definition and could prejudice defendants who were not properly tested as
children or for whom records of such testing could not be found.

Finally, Virginia does not permit a capital defendant’s claim of mental retardation to be
determined as early as possible in capital proceedings. Instead, the determination must be made
by the jury as part of the sentencing phase proceedings, after a defendant has been convicted of
capital murder. However, there are clear advantages to allowing the determination to be made in
a hearing prior to commencement of the guilt phase of a capital trial. Specifically, if the
defendant is found to have mental retardation, the Commonwealth is spared the expense of a
lengthy capital trial. Moreover, jurors often misunderstand mental retardation evidence, and the
evidence may be especially confusing when presented in the same proceeding with mitigating
and aggravating evidence.

Mental Illness

Finally, the Assessment Team reviewed Virginia’s laws, procedures, and practices pertaining to
mental illness in connection with the death penalty. Mental illness can affect every stage of a
capital trial. It is relevant to the defendant’s competence to stand trial, it may provide a defense
to the murder charge, and it is often central to the defendant’s mitigation case. Conversely, the
risk of reversible error increases when the judge, prosecutor, and jurors are misinformed about
the nature of mental illness and its relevance to the defendant’s culpability and life experience.

XXXv1

A summary of Virginia’s overall compliance with the ABA’s policies on mental illness is
illustrated in the following chart.

Mental Illness

ABA Protocol Cc i Level

Protocol #1: Prosecutors should employ, and trial judges should appoint, mental health experts
on the basis of their qualifications and relevant professional experience, not on the basis of the
expert’s prior status as a witness for the state. Similarly, trial judges should appoint qualified Not in Compliance
mental health experts to assist the defense confidentially according to the needs of the defense,
not on the basis of the expert’s current or past status with the state,

Protocol #2: Jurisdictions should provide adequate funding to permit the employment of

qualified mental health experts in capital cases. Experts should be paid in an amount sufficient

to attract the services of those who are well-trained and who remain current in their fields.

Compensation should not place a premium on quick and inexpensive evaluations, but rather

should be sufficient to ensure a thorough evaluation that will uncover pathology that a
or cost- fion might miss.

Partial Compliance

Protocol #3: larisdictions should forbid death sentences and executions for everyone who, at

the time of the offense, had in both i and adaptive

behavior as expressed in conceptual, social, and practical adaptive skills, resulting from mental
dementia, or a traumatic brain injury.

Partial Compliance

Protocol #4: The jurisdiction should forbid death sentences and executions with regard to
everyone who, at the time of the offense, had a severe mental disorder or disability that
significantly impaired the capacity (a) to the nature, or 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. A disorder manifested primarily by repeated criminal
conduct 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 this

Not in Compliance

Protocol #5: To the extent that a mental disorder or disability does not preclude imposition of a
death sentence pursuant to a particular provision of law, jury instructions should communicate
clearly that a mental disorder or disability is a mitigating factor, not an aggravating factor, ina
capital case; that jurors should not rely upon the factor of a mental disorder or disability to Not in Compliance
conclude that the defendant represents a future danger to society; and that jurors should
distinguish between the defense of insanity and the defendant’s subsequent reliance on mental
disorder or disability as a mitigating factor.

Protocol #6: Jury i should to jurors, where
the defendant is receiving medication for a mental disorder or disability, that this affects te Not in Compliance
defendant’s perceived demeanor, and that this should not be consi in aggravation.

Protocol #7: The jurisdiction should stay post-conviction proceedings where a prisoner under a
sentence of death has a mental disorder or disability that significantly impairs his or her capacity
to or pertinent or otherwise to assist counsel, in
connection with such proceedings and the prisoner’s participation is necessary for a fair
resolution of specific claims bearing on the validity of the conviction or death sentence. The
jurisdiction should require that the prisoner’s sentence be reduced to the sentence imposed in
capital cases when execution is not an option if there is no significant likelihood of restoring the
prisoner’s capacity to in in the future.

Not in Compliance

Protocol #8: The jurisdiction stould Tae that a death row inmate is not “competent” for
execution where the inmate, due to a mental disorder or disability, has significantly impaired
capacity to understand the nature and purpose of the punishment or to appreciate the reason for
its imposition in the inmate’s own case. It should further provide that when such a finding of Not in Compliance

is made after to the i ’s and death sentence’s validity have
been exhausted and execution has been scheduled, the death sentence shall be reduced to the
sentence imposed in capital cases when execution is not an option.

Protocol #9: Jurisdictions should develop and disseminate to police officers, attorneys, judges,
and other court and prison officials models of best practices on ways to protect mentally ill
individuals within the criminal justice system. In developing these models, jurisdictions should
enlist the assistance of organizations devoted to protecting the rights of mentally ill citizens.

Partial Compliance

XXXVii

Virginia has taken some steps to protect the rights of individuals with mental disorders and
disabilities in capital cases. For instance, Virginia has enacted statutory qualification standards
for mental health experts in trial-level capital cases, and Virginia courts appear to have appointed
qualified mental health experts to assist defense counsel in these cases. Virginia also has
established a structure for the appointment and reasonable compensation of these experts at trial.

In other respects, however, Virginia’s rules and laws do not afford adequate protection to
individuals with several mental disorders or illnesses in death penalty cases. For example, the
Commonwealth does not prohibit death sentences or executions of persons who, at the time of
the offense, had significant limitations in both intellectual functioning and adaptive behavior
caused by a disability other than mental retardation, such as dementia or traumatic brain injury.
Under this standard, a defendant who suffered a serious brain injury at age eighteen or older
would be eligible for the death penalty, even if, as a result of the injury, s/he exhibits every other
characteristic of mental retardation. Furthermore, Virginia does not forbid execution of the
severely mentally ill under any standard. Much as the AAIDD supports excluding persons with
mental retardation from the death penalty, several leading mental health groups and the
American Bar Association support a prohibition of the death penalty for a narrow group of
severely mentally ill individuals whose ability to control their conduct at the time of the offense
was significantly impaired.

Furthermore, Virginia’s jury instructions fail to adequately explain how evidence of mental
illness should be considered in a death penalty case. Jurors are not instructed on individual
statutory mitigating factors, including factors relevant to mental illness. Nor are jurors instructed
that a mental disorder or disability is a mitigating factor, not an aggravating factor; that they
should not rely upon the factor of a mental disorder or disability to conclude that the defendant
represents a future danger to society; or that they should distinguish between the defense of
insanity and the defendant’s subsequent reliance on mental disorder or disability as a mitigating
factor. Jurors are also not instructed that any medication the defendant is receiving for a mental
disorder or disability may affect his/her perceived demeanor and that this should not be
considered in aggravation.

Finally, Virginia law does not adequately protect death row inmates whose mental disorders have
rendered them incompetent. The Commonwealth does not permit an inmate’s state habeas
proceedings to be stayed, even if s/he suffers from a mental disorder or disability that
significantly impairs his/her capacity to assist or communicate with counsel in those
proceedings. Virginia also has not enacted any procedures for determining whether an inmate
possesses a rational understanding of the nature and purpose of his/her death sentence and is,
thus, competent to be executed. This is contrary to U.S. Supreme Court precedent, which
expressly prohibits the execution of incompetent inmates.

XXXVIil

CHAPTER ONE
ANOVERVIEW OF VIRGINIA’S DEATH PENALTY SYSTEM
I. DEMOGRAPHICS OF VIRGINIA’S DEATH ROW
A. A Historical Perspective

The Commonwealth of Virginia reinstated the death penalty on October 1, 1975.! Since then
through June 1, 2013, Virginia has executed 110 inmates —the second highest number of
executions by any capital jurisdiction in the United States.’ During that same time period,
Virginia has imposed 151 death sentences, giving the Commonwealth the highest ratio of
executions to death sentences in the United States.*

The first execution in Virginia after reinstatement occurred on August 10, 1982.’ Ten Virginia
death row inmates have “volunteered” for execution, each forgoing his right to seek further
review of his death sentence.° Three of the death row inmates executed were juveniles at the
time they committed the crimes.° Of the 110 inmates executed, fifty-six were white, fifty-one
were black, two were Latino, and one was a Pakistani national.’

B. A Current Profile of Virginia’s Death Row

As of March 1, 2013, eight inmates, convicted in six different counties, are under a sentence of
death in Virginia.® All eight of the death row inmates are male; three are black, four are white,

1 1975 Va. Acts cc. 14-15 (codified at Va. Cope § 18.2-32 (1975).
2 Number of Executions by State and Region Since 1976, DEATH PENALTY INFO. CTR,

http://www.deatt: info.org/number-executions-state-and-region-1976 (last visited June 11, 2013). Since
January 1, 1974, when Texas reinstated the death penalty, through October 1, 2011, Texas has executed 498 persons.
Executed Offenders, TEX. DEP’T OF CRM. JUSTICE

http://www.tdcj.state.tx.us/death_row/dr_executed_offenders.html (last visited June 11, 2013). Virginia, however,
has carried out more executions in its history than any other state. J. Lecis. AuDIT & Rev. CoMM’N, Va.
ASSEMBLY: REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL PUNISHMENT, at 1 (2002).

See Executions per Death Sentence,, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/executions-
death-sentence (last visited June 11, 2013); Virginia Capital Litigation Data, Va. Capital Case Clearinghouse,
http: //www.vc3.org/resources/page.asp?pageid=561 (last visited Aug. 19, 2013).

See NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), DEATH Row U.S.A. 7 (Winter
2013), available at http://naacpldf.org/files/publications/DRUSA_Winter_2013.pdf [hereinafter NAACP, DEATH
Row USA]. Coppola was the fifth person executed after the U.S. Supreme Court permitted states to reinstate the
death penalty. Id.

5 See Gleason v. Commonwealth, 166726 S.E.2d 351, 352 (Va. 2012); NAACP, DEATH Row USA, supra note 4,

at 6.
5 NAACP, DeaTH Row USA, supra note 4, at 6.
7 — Kasi v. Commonwealth, 508 S.E.2d 57 (Va. 1998); NAACP, DEATH Row USA, supra note 4, at 6.

See Virginia Capital Litigation Data, supra note 3; NAACP, DEATH Row USA, supra note 4, at 61. Although
the NAACP Report shows eleven inmates on death row, Robert Gleason was executed after the report was published
and both Leon Winston and Justin Michael Wolfe have had their sentences reversed and are awaiting new
sentencing hearings. Id.; Justin Jouvenal, Va. Executes Convicted Killer Who Sought Death Penalty, WASH. POST,
Jan. 16, 2013, available at http://www. washi com/local/" ites-convicted-killer-who-sought-death-
penalty/2013/01/16/89802e00-6015-11e2-9940- fetget3fecd |_story.html.


and one is Latino.? Death row for male offenders is currently located at Sussex I State Prison,
near Waverly, Virginia and female death row inmates are housed at Fluvanna Correctional
Center for Women.'® Executions are carried out by either lethal injection or electrocution at
Greensville Correctional Center in Jarratt"!

9 NAACP, DeaTH Row USA, supra note 4, at 61.

10 Jim Iovino, Facts About Virginia's Death Row: Final Hours Structured for Inmates, NBC Wasu., Nov. 10,
2009, http://www.nbcwashington.com/news/local/Facts-A bout-V irginias-Death-Row-69644447.html (last visited
Aug. 19, 2013).

11 "Va. CODE ANN. § 53.1-234 (2013); Iovino, supra note 10.

II. THE STATUTORY EVOLUTION OF VIRGINIA’S DEATH PENALTY SCHEME
A. Virginia’s Post-Furman Death Penalty Procedures

In 1972, the U.S. Supreme Court held, in Furman v. Georgia, that the death penalty statutes in
the various States constituted cruel and unusual punishment and therefore violated the Eighth
and Fourteenth Amendments of the U.S. Constitution.!2 However, in 1974, the Supreme Court
of Virginia, reasoning that Furman applied only to death penalty sentencing schemes which
permitted discretion, upheld the imposition of a mandatory death sentence on an inmate who had
been sentenced to death for the murder of a prison guard.!

When the U.S. Supreme Court later invalidated mandatory death penalty statutes in 1977,'* the
Virginia General Assembly amended its capital punishment statutes to comport with the nulings
of the U.S. Supreme Court.'> The Commonwealth eliminated the mandatory death penalty and
gave jurors the option of imposing imprisonment for life for a capital offense."© The
constitutionality of the Commonwealth’s 1977 capital punishment statute was subsequently
upheld by the Supreme Court of Virginia in 1978.17

Since the reinstatement of the death penalty in Virginia, the Commonwealth’s death penalty laws
and procedures have undergone several modifications.'® In 1977, the Commonwealth amended
trial procedures to require bifurcated capital trials with separate phases for the determination of
guilt and punishment.~’ Only in the event that the defendant was found guilty of capital murder
would the second punishment or “sentencing” phase of the capital proceedings commence.””
During the sentencing phase, the defendant was allowed to present evidence “as to any matter
which the court deems relevant to the sentence,” including “the circumstances surrounding the
offense, the history and background of the defendant, and any other facts in mitigation of the
offense”?! Under the statute, mitigating evidence included, but was not limited to, (1) the

2 Furman v. Georgia, 408 U.S. 238, 239-40 (1972).
8 Jefferson v. Commonwealth, 204 S.E.2d 258, 260 (Va. 1974). See also Washington v. Commonwealth, 217
S.E.2d 815, 820 (Va. 1975).

In Roberts v. Louisiana and Woodson v. North Carolina mandatory death penalties were declared to be a
constitutionally impermissible response to Furman. See Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v.
North Carolina, 428 U.S. 280 (1976). Simultaneously, the U.S. Supreme Court decided that Furman did not require
that all sentencing discretion be eliminated if the statutory system provides adequate standards to guide the exercise
of that discretion. See Gregg v. Georgia, 428 U.S. 153, 195 (1976) (where the Court upheld the constitutionality of
capital punishment statutes which included bifurcated trials with separate stages for determining guilt/innocence and

the use of mitigating and ing factors during the sentencing phase, and independent judicial

review).

15 J. Leis. Aupir & Rev. CoMM’N, supra note 2, at 1; see Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976), and Gregg v. Georgia, 428 U.S. 153 (1976). See also VA. CODE §§ 19.2-264.2, -
264.3, -264.4, -264.5 (Cum. Supp. 1977) (effective July 1, 1977).

© va. Cope § 18.2-10(a) (1977) (replacing the mandatory capital punishment provision with discretionary
sentencing).

Smith v. Commonwealth, 248 S.E.2d 135, 146-49 (Va. 1978).

See infra notes 31-37 and accompanying text.

© Va. CopE§§ 19.2-264.1-19.2-264.4 (1977).

2 Va. CopE §§ 19.2-264.2(A), (C), 19.2-264.3(A) (1977).

21 Va. Cope § 19.2-264.3(B)(1977) (noting that admissible evidence was subject to the provisions of section 19.2-
299, or any Rule of Court).

defendant had “no significant history of prior criminal activity”; (2) the crime was committed
while the defendant was experiencing extreme mental or emotional disturbance; (3) the victim
participated in the defendant’s conduct or consented to act; (4) at the time of the offense, the
defendant’s ability to “appreciate the criminality of his[/her] conduct or to conform his[/her]
conduct to the requirements of law was significantly impaired”; and (5) the age of the defendant
at the time of the offense.”

Under the new sentencing law, the death penalty could not be imposed unless the
Commonwealth proved beyond a reasonable doubt one of two statutory factors. Specifically, the
Commonwealth needed to prove either “that there is a probability based on the evidence of the
prior history of the defendant or of the circumstances surrounding the commission of the offense
... that [the defendant] would commit criminal acts of violence that would constitute a
continuing serious threat to society,” or that the defendant’s “conduct in committing the offense
was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of
mind or an aggravated battery to the victim.””

The law provided that if the jury unanimously agreed to fix the punishment at death, it must be in
writing. Before imposing the sentence announced by the jury, the trial court must “direct a
probation officer of the court to thoroughly investigate upon the history of the defendant and any
and all other relevant facts . .. to the end that the court may be fully advised as to whether the
sentence of death is appropriate and just.” The trial court may, upon reviewing the officer’s
report, “and upon good cause shown,” set aside the sentence of death fixed by the jury and
impose a life sentence.”° If the jury was unable to agree on the penalty, the statute required the
court to dismiss the jury and impose a sentence of life imprisonment.’

The amended law also provided for an automatic review to be conducted by the Supreme Court
of Virginia of any death sentenced imposed by a Commonwealth circuit court.” The Court was
now required to consider (a) trial errors outlined in the defendant’s appeal; (b) whether the death
sentence was imposed due to passion, prejudice, or any other arbitrary factor; and (c) whether the
death sentence was excessive or disproportionate in relation to other Commonwealth
convictions, given both the crime and the defendant.”° Upon review of the death sentence, the
statute required the Supreme Court of Virginia to affirm the sentence of death, commute the

2 Va. Cove § 19.2-264.3(B)(1977).

3 Va. CovE §§ 19.2-264.1(1), 19.2-264.2(C), 19.2-264.3(C), 19.2-264.4 (1977) (after consideration of the report,
and upon good cause shown, the court may set aside the sentence of death and impose a sentence of imprisonment
for life). See also J. Lecis. Aupir & REV. COMM’N, supra note 2, at 10 (“While the General Assembly offered no
detailed definition of conduct that should be considered vile, the law stated the existence of either torture, evidence
of depravity of mind, or aggravated battery were sufficient to support a finding of vileness and justification for
imposition of the death penalty.”).

24” Va. CopE §§ 19.2-264.1(2), 19.2-264.3(D) (1977) (written requirement).

2% va. Cope § 19.2-264.5 (1977).

Id.

27 va. Cope § 19.2-264.3(E) (1977).

2 va. Cope §§ 19.2-264.4, 17-110.1(A) (1977).

9 -Va. Cope § 17-110.1(C) (1977). For its consideration, the Court “may accumulate the records of all capital
felony cases tried within such period of time as the court may determine. The court shall consider such records as
are available as a guide in determining whether the sentence imposed in the case under review is excessive.” VA.
Cope § 17-110.1(E) (1977).

sentence to imprisonment for life, or remand the case for either a new sentencing hearing or a
30
new trial.

B. Amendments to Virginia’s Capital Sentencing Statutes, 1977—Present

Since the 1977 amendments, the Virginia General Assembly has adopted a number of additional
changes to the Commonwealth’s death penalty procedures. In 1990, the sentencing statute was
revised to include mental retardation of the defendant as a mitigating factor.’ A 1998 revision
permits victims to testify in the presence of the defendant regarding the impact of the offense
during the sentencing phase.*” In 2000, the statute was again revised to include that, upon
request by the defendant, the j jury, instructions should state that for all capital-eligible offenses
committed after January 1, 1995, there is no possibility of parole if the defendant is sentenced
to life in prison.” Virginia also enacted, in 2001 and 2004, legislation that permits inmates to
file petitions for writs of actual innocence based on biological and nonbiological evidence.

Virginia has also significantly expanded the number of offenses eligible for the death penalty
since Furman. In 1975, for example, an offender was eligible for the death penalty if convicted
of first-degree murder in conjunction with any of three separate offenses.” As of December
2011, an offender may be subject to the death penalty in Virginia if convicted of premeditated
murder and any one of fifteen predicate offenses.°”

3° Va. CopE§ 17-110.1(D) (1977). See also J. Lecis. ADIT & REV. COMM’N, supra note 2, at 10.

31 Va. Cope § 19.2-264.4(b) (1990). Later, in 2002, the U.S. Supreme Court prohibited imposition of the death
penalty on offenders with mental retardation, leading to Virginia’s adoption of new procedural rules to determine if
a capital defendant has mental retardation. See infra note 38 and accompanying text.

% "Va. Cove § 19.2-295.3 (1998).

33 Those convicted and sentenced prior to 1995 remain eligible for parole. VA. CODE § 19.2-264.4(A) (2000). If
the Parole Board denies a parole petition, they must provide specific reasons for the denial. VA. CODE ANN. § 53.1-
136(6) (2013).

31 Va. CopE § 19.2-264.4(a) (2000). In 2002, anew provision also required that “an accessory before the fact or
principal in the second degree to a capital murder” involving “ ‘a killing pursuant to the direction or order of one who

is engaged in the c ission of or ion of an act of terrorism... shall be indicted, tried,
convicted and punished as though the offense were murder in the first degree.” YA. CODE § 18. 2- 18 (2002).
35 See VA. CODE §§ 19.2-327.3 (2001) (writ of actual i based on biological at 19.2-327.10

(2004) (writ of actual innocence based on nonbiological evidence).

* Va. Conk § 18.2-31 (1975) (codifying 1975 Va. Acts, ch. 14, 15). See also J. Lecis. Aupit & Rev. CoMM’N,
supra note 2, at 5, 14. These included whether the first-degree murder was committed in conjunction with (1)
abduction with the intent to extort money or pecuniary benefit; (2) murder for hire; (3) the murder was committed by
an inmate in a penal institution. Va. CopE § 18.2-31 (1975).

3” The actual number of capital-eligible predicate offenses is greater than fifteen as capital-eligible offenses under
the Virginia Code may contain several different offenses under a single enumerated offense. Since 1975, Virginia
has expanded the number of predicate offenses eligible for the death penalty to the following willful, deliberate, and
premeditated killings: (1) Killing during the commission of an abduction when the abduction was committed either
with the intent to extort money or pecuniary benefit (1975) or with the intent to defile the victim of such abduction
(1996), VA. CoDE § 18.2-31 (1975), VA. Cope § 18.2-31.1, .8 (1996); (2) killing for hire, VA. Cope § 18.2-31
(1975); (3) killing by an inmate who is in a correctional facility or in the custody of an employee of a correctional
facility (1975), VA. Cope § 18.2-31 (1975); (4) killing during the commission of robbery or attempted robbery, VA.
Cove § 18.2-31(d)-(e) (1976), VA. CODE § 18.2-31.4, .5 (1989) (prior to 1996, this predicate offense required use of
a “deadly weapon” during the commission of a robbery or attempted robbery. VA. CODE § 18.2-31.4 (1996)); (5)
killing during the commission of rape (1976), attempted rape (1989), sodomy or attempted sodomy (1991), or object

C. Restrictions on the Death Penalty
1. Mental Retardation

In 2003, the Supreme Court of the United States prohibited, in Atkins v. Virginia, the execution
of offenders with mental retardation.** In response to Atkins, the Virginia General Assembly
passed legislation banning the execution of mentally retarded offenders.*’ Under the new statute,
if a defendant is found guilty of capital murder, s/he may present the issue of mental retardation
to the trier of fact during the sentencing phase of the trial.” The capital defendant must prove by
a preponderance of the evidence that s/he is mentally retarded, and the jury must indicate in its
verdict, in writing, whether the defendant met his/her burden to prove mental retardation.“! If the
jury finds the defendant is mentally retarded, it must impose a sentence of life imprisonment.”
If the jury does not find that the defendant is mentally retarded, the jury still may consider the
defendant’s sub-average intellectual functioning as mitigation.’ A full discussion of Virginia’s
treatment of mentally retarded offenders is found in Chapter Thirteen on Mental Retardation and
Mental Illness.

2. Age Restriction

In 2004, the Supreme Court of Virginia held that, in light of the U.S. Supreme Court ruling in
Stanford v. Kentucky, the imposition of the death penalty on an offender who commits a capital

sexual penetration (1995), VA. CoDE § 18.2-31(d)-(e) (1976), VA. CoDE § 18.2-31.4, .5 (1989); Va. CopE § 18.2-
31.5 (1991); Va. Cope § 18.2-31.5 (1995); (6) killing a “law enforcement officer . .. when such killing is for the
purpose of interfering with the performance of his official duties,” VA. CODE § 18.2-31(f) (1977); (16) (i) killing a
state or federal law enforcement officer with the power to make a felony arrest under any state or federal law, with
“the purpose of interfering with the performance of his official duties,” (1997); (ii) killing a fire marshal or a deputy
or assistant fire marshal when such persons have police powers, with “the purpose of interfering with the
performance of his official duties,” (2010); and (iii) killing an auxiliary police officer or auxiliary deputy sheriff,
with “the purpose of interfering with the performance of his official duties,” (2010); (7) killing “more than one
person as a part of the same act or transaction,” VA. CODE § 18.2-31(g) (1981); (8) killing more than one person
within a three-year period, VA. Cope § 18.2-31.8 (1996); (9) killing during the commission, or attempted
commission, of a drug transaction, with the purpose of furthering the transaction, VA. CODE § 18.2-31.9 (1990); (10)
killing pursuant to the direction or order of another “who is engaged in a continuing criminal enterprise,” VA. CODE
§ 18.2-31.10 (1997); (11) killing a pregnant woman by “one who knows that the woman is pregnant and has the
intent to cause the involuntary termination of the woman’s pregnancy without a live birth,” VA. CODE §§ 18.2-31.10,
18.2-31.11 (1998); (12) killing a person under the age of fourteen by a person age twenty-one or older, VA. CODE §
18.2-31.12 (1998); (13) killing during the ission or ion of an act of terrorism, VA. CODE §
18.2-31.13 (2002); (14) killing a justice of the Supreme Court of Virginia, a judge of the Virginia Court of Appeals,
a judge of a circuit court or district court, a retired judge sitting by designation or under temporary recall, or a
substitute judge, with the purpose of interfering with the judge’s official duties, VA. CODE § 18.2-31.14 (2007); (15)
killing any witness in a criminal case after a subpoena has been issued, with the purpose of interfering with the
witness’s “duties in such case,” VA. CODE § 18.2-31.15 (2007).
38 Atkins v. Virginia, 536 U.S. 304, 321 (2002).
3° Va. CopE §§ 19.2-264.3:1.1, 19.2-264.3:1.2 (2003) (applicable to future capital defendants). See also VA.
Cope § 8.01-654.2 (2003) (applicable to death row inmates sentenced before April 29, 2003).

Va. Cope § 8.01-654.2 (2003) (applicable to death row inmates sentenced before April 29, 2003).
“| Va. CODE ANN. § 19.2-264.3:1.1(C), (D) (2013).
® Va. CopE ANN. § 19.2-264.3:1.1(C), (D) (2013).
8 Va. CODEANN. § 19.2-264.4(B) (2013).


offense at age sixteen or seventeen is not a violation of the Eighth Amendment.“ However, the
following year, the U.S. Supreme Court prohibited the execution of juvenile offenders as a
violation of the Eighth Amendment of the U.S. Constitution.” In response, the Virginia General
Assembly passed legislation in 2006 changing the minimum age for death penalty eligibility
from sixteen to eighteen years. *°

a Johnson v. Commonwealth, 591 S.E.2d 47, 59-60 (Va. 2004), cert. granted, judgment vacated sub nom,

Johnson v. Virginia, 544 U.S. 901 (2005).

Roper v. Simmons, 543 U.S. 551, 578-579 (2005). Prior to 2005, Virginia executed three seventeen-year-olds,
including Dwayne Wright (1998), Douglas Thomas (2000), and Steve Roach (2000). NatT’L ASS’N FOR THE
ADVANCEMENT OF COLORED PEOPLE (NAACP), DEATH Row U.S.A. at 18, 20 (Fall 2009), available at
http://www.naacpldf.org/files/publications/DRUSA_Fall_2009.pdf
46 Va. Cope § 18.2-10(a) (2006), codifying S.B. 362, Ch. 733, 2006 Sess. (Va. 2006); see also Gray v.
Commonwealth, 645 S.E.2d 448, 458 (Va. 2007) (where the Supreme Court of Virginia first acknowledges the
Commonwealth’s new statute imposing an increased age minimum for death penalty eligibility).

III. THE PROGRESSION OF A VIRGINIA DEATH PENALTY CASE FROM ARREST TO EXECUTION
A. The Pretrial Process

In Virginia, some capital prosecutions commence by issuance of a warrant.*” An individual
arrested for the commission of a crime must then be taken for an initial appearance and bail
determination.“® At the initial hearing, the judge must inform the accused of his/her right to
counsel and allow the accused “reasonable opportunity to employ counsel.”“° No hearing on the
charges may be held until a court determines whether the defendant is indigent and, if so, the
defendant must be assigned counsel and given a reasonable time and opportunity to consult with
his/her counsel.” If a capital defendant is found to be indigent, the court must appoint at least
two attorneys from a list of qualified counsel prepared by the Supreme Court of Virginia and the
Virginia Indigent Defense Commission.” Indigent defendants are entitled to appointed counsel
at trial, and if sentenced to death, on appeal and during state habeas corpus proceedings.

An individual accused of a capital felony in Virginia has a right to be prosecuted upon a grand
jury indictment or presentment.°? When a grand jury indictment for capital murder is issued and
the capital defendant is arrested, the clerk of the circuit court must file a certified copy of the
indictment with the Supreme Court of Virginia to be maintained in a central file available to the
public upon request. If the capital defendant has been arrested prior to indictment, s/he is
entitled to a preliminary hearing where the court will determine whether there is probable cause
that the charged offense occurred and whether the defendant committed the charged offense. °°
The defendant is entitled to counsel at the preliminary hearing.*®

After the defendant is charged with a capital felony, the defendant will be formally arraigned. *”
The court must read to the accused the charges on which s/he will be tried and the defendant
must enter a plea in response. A defendant may plead not guilty, guilty, or nolo contendere,

“va. Cove § 19.2-72 (2013) (issued if a judge finds “probable cause to believe the accused has committed an

offense”).

VA. CODE ANN. § 19.2-80 (2013).
49 Va. CODEANN. § 19.2-157 (2013).
5° Va. CODEANN. §§ 19.2-159, 19.2-159.1 (2013).
51 Va. CODEANN. § 19.2-163.7 (2013).
2 Va. CODE ANN. § 19.2-163.7 (2013). For a full discussion of Virginia’s capital defense system, see Chapter Six
on Defense Services.
53 Va. CODE ANN. §§ 19.2-217, 19.2-221 (2013); VA. Sup Cr. R. 3A:5. An indictment is a written accusation of a
criminal offense prepared by the Commonwealth attorney and “returned ‘a true bill’ upon the oath or affirmation of
a legally impaneled grand jury.” VA. CODE ANN. § 19.2-216 (2013). A presentment is a “written accusation of a
crime prepared and retumed by a grand jury from their own knowledge or observation, without any bill of
indictment laid before them.” Id.
Va. Cope ANN. § 19.2-217.1 (2013).
” Va. CODE ANN. § 19.2-218 (2013). The hearing may not be used for discovery purposes. Williams v.
Commonwealth, 160 S.E.2d 781, 784-85 (Va. 1968). In Virginia, a defendant charged with a capital crime is
entitled to a preliminary hearing in district court only if s/he was arrested prior to indictment. Va. CODE ANN. §§
19.2-218, 19.2-232 ( 2013).
58 Va. CODE ANN. §§ 19.2-157, 19.2-158 (2013).
57 Va. CopE ANN, § 19.2-254 (2013). See also VA. CODE ANN. § 19.2-241 (2013) (time limit for trial after
indictment).
58 Va. CODE ANN. § 19.2-254 (2013). See also VA. CODE ANN. § 19.2-255 (2013).

and the court may refuse to accept a plea of guilty to any lesser offense included in the charge.°°

Once an indictment is filed, either party may initiate discovery. Pursuant to the Rules of the
Supreme Court of Virginia, a motion by the accused to inspect evidence in possession of the
Commonwealth must be made in writing at least ten days before trial."! The Rules permit
discovery of (1) statements of the defendant; (2) forensic and scientific reports; and (3)
inspection and copying of tangible items.’ Counsel is entitled to a reasonable opportunity to
examine discovery material and prepare for its use at trial. In addition, informal discovery may
occur pursuant to an agreement between defense counsel and the Commonwealth’s Attorney.

The prosecution and defense also may make motions or raise objections in the form of a written
motion to dismiss or a motion to grant appropriate relief. The trial court may defer a
determination of a motion until trial or it may rule on the motion after holding a hearing. In
Virginia, some objections must be made prior to trial and others may be raised at any time before
a verdict is issued.’ Prior to trial, the court may permit, “[o]n motion of the Commonwealth
[and] for good cause shown,” the joinder of co-defendants; conversely, “[i]f the court finds that a
joint trial would constitute prejudice to a defendant, the court shall order severance as to that
defendant or provide such other relief justice requires.” The court also “may direct that an
accused be tried at one time for all offenses then pending against him.” Finally, at least sixty
days before trial, the defense must notify the Commonwealth if the defendant intends to raise an
insanity defense and present testimony of an expert in support.”°

B. The Capital Trial

Trials are generally held in the circuit court of the county or city in which the criminal act was

59 Va. CODE ANN. § 19.2-254 (2013).

80 Va. Sup Cr. R. 3A:11. The Virginia Constitution affords criminal defendants the right “to call for evidence in
his favor.” VA. Const. art. I, § 8.

51 Va. Sup CT. R. 3A:11(d), 3A:9(b)(3) (although for good cause, the court may permit an oral motion).

& va. Sup Cr. R. 3A:11(b)(1)-(2).

53 See Townes v. Commonwealth, 362 S.E.2d 650, 659-60 (Va. 1987).

4 Knight v. Commonwealth, 443 S.E.2d 165, 169 (Va. App. 1994) (court may enforce parties’ written discovery
stipulations); United States v. Cole, 857 F.2d 971, 976 (4th Cir. 1988).

85" Va. CODE ANN. § 19.2-266.2(A)-(B) (2013); VA. Sup CT. R. 3A:9.

% va. Sup Cr. R. 3A:9(b)(4).

87 Va. CopE ANN. § 19.2-266.2(A)-(B) (2013); Va. Sup Cr. R. 3A:9(b)(1). For example, motions that raise
defenses to bar prosecution, such as motions for speedy trial or double jeopardy, must be filed and notice given to
opposing counsel at the time the objection arises or no later than seven days before trial. VA. CODE ANN. § 19.2-
266.2(A)—(B) (2013); VA. Sup Cr. R. 3A:9(b)(1). See also Chapters Seven and Eight on the Direct Appeal Process
and State Habeas Corpus Proceedings, respectively.

88 Va. CODEANN. § 19.2-262.1 (1993); Va. Sup Cr. R. 3A:10(a)-(b). Prior to 1993, capital defendants could elect
to be tried separately “‘as a matter of right” and not subject to judicial Burgess v. C Ith, 297
S.E.2d 654, 656 (Va. 1982).

See VA. Sup Cr. R. 3A:10(c). Offenses may be joined in the event that “justice does not require separate trials”
and one of two additional criterion is satisfied: (1) “the offenses [are based on the same act or transaction or on two.
or more acts or transactions that are connected or constitute parts of a common scheme or plan],” or (2) “the accused
and the Commonwealth’s attorney consent thereto.” Id.

70 Va. CODE ANN. § 19.2-168 (2013).


committed.”’ Virginia bifurcates the capital trial into two phases: the first phase determines the
guilt or innocence of the defendant, and, if the defendant is found guilty, the second phase will
determine the defendant’s sentence.”

1. Guilt Phase

All individuals charged with a capital offense have a right to a trial by jury.”> However, a
defendant may waive the right to a jury trial provided the waiver is in writing and the defendant
receives the consent of the court and the prosecution.” In the event the defendant waives his/her
right to trial by jury, the court “shall have and exercise all the powers, privileges and duties given
to juries by any statute relating to crimes and punishments.”

Capital juries in Virginia are composed of twelve persons.”° Both the prosecution and defense
are entitled to four peremptory challenges, with an additional challenge given if alternate jurors
are impaneled.” Each party, beginning with the attomey for the Commonwealth, must alternate
in striking one juror each, until twelve jurors remain.’” Co-defendants must share peremptory
challenges, and if they cannot agree on which jurors to strike, the clerk of the trial court will
choose out of a ballot box which jurors to excuse.”

During the guilt phase, both parties have a right to conduct opening and closing statements."
The Commonwealth’s Attorney must first present witnesses and other evidence to prove beyond
a reasonable doubt the elements of the charged offense.®' The defendant may but is not required
to present evidence.

A defendant cannot be subject to the death penalty unless the prosecution proves the defendant
guilty, beyond a reasonable doubt, of a willful, deliberate, and premeditated killing, of

(1) any person in the commission of abduction, when such abduction was committed
with the intent to extort money or a pecuniary benefit or with the intent to defile
the victim of such abduction;

(2) any person by another for hire;

(3) any person by a prisoner confined in a state or local correctional facility, or while

7 Va. CoE § 19.2-244 (2013). Change of venue may be requested on motion of either party “for good cause.”

Va. CopE ANN. § 19.2-251 (2013).

Va. CODE ANN. § 19.2-264.3 (2013). See also VA. Sup CT. R. 3A:18 (“Except for good cause shown, the
separate proceeding provided for in Section 19.2-264.3(C) shall commence as if it were a continuation of the
opginal trial and continue from day to day until concluded.”).

Va. Const. art. I, § 8; VA. CODE ANN. § 19.2-257(2013).
™ Va. Const. att. I, § 8; VA. CODE ANN, § 19.2-257 (2013).
5 Va. Const. att. I, § 8; VA. CODE ANN.§ 19.2-257 (2013).
7 Va. CODEANN. § 19.2-262(B) (2013).
7 Va. CODE ANN. §§ 19.2-262, 8.01-360 (2013).
7% Va. CODEANN. § 19.2-262(C) (2013).
7 Va. CoDEANN. § 19.2-262(D) (2013).
80 Va. CoDE ANN. § 19.2-265 (2013) ( ‘opening statement); Va. Sup CT. R. 3A:16(a); Fish v. Commonwealth, 160
S.E.2d 576, 580-81 (Va. 1968) (defense counsel in a criminal case has an absolute right to make closing argument).
8! Tn re Winship, 397 U.S. 358 (1970); Walker v. Commonwealth, 183 S.E.2d 739, 740 (Va. 1971) (“every
Material and necessary element”).

in the custody of an employee thereof;

(4) any person in the commission of robbery or attempted robbery;

(5) any person in the commission of, or subsequent to, rape or attempted rape,
forcible sodomy or attempted forcible sodomy or object sexual penetration;

(6) a law-enforcement officer, a fire marshal, or a deputy or an assistant fire marshal,
when such fire marshal or deputy or assistant fire marshal has police powers, an
auxiliary police officer, an auxiliary deputy, or any law-enforcement officer of
another state or the United States having the power to arrest for a felony under the
laws of such state or the United States, when such killing is for the purpose of
interfering with the performance of his official duties;

(7) more than one person as a part of the same act or transaction;

(8) more than one person within a three-year period;

(9) any person in the commission of or attempted commission of a violation of
Virginia Code section 18.2-248 (Manufacturing, selling, giving, distributing, or
possessing with intent to manufacture, sell, give, or distribute a controlled
substance or an imitation controlled substance prohibited”) involving a Schedule I
or II controlled substance, when such killing is for the purpose of furthering the
commission or attempted commission of such violation;

(10) any person by another pursuant to the direction or order of one who is engaged in
a continuing criminal enterprise;

(11) a pregnant woman by one who knows that the woman is pregnant and has the
intent to cause the involuntary termination of the woman’s pregnancy without a
live birth;

(12) aperson under the age of fourteen by a person age twenty-one or older;

(13) any person by another in the commission of or attempted commission of an act of
terrorism;

(14) a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a
circuit court or district court, a retired judge sitting by designation or under
temporary recall, or a substitute judge, when he is killing for the purpose of
interfering with his official duties as a judge; and/or

(15) any witness in a criminal case after a subpoena has been issued for such witness
by the court, the clerk, or an attorney, when the killing is for the purpose of
interfering with the person’s duties in such case.

The jury must announce its verdict unanimously and in open court.®* The jury may render a
verdict of guilty on the charged offenses or not guilty, guilty of a lesser charge, or as an
accessory after the fact. If the jury is unable to reach a unanimous verdict, the court will
declare a mistrial."°

® Va. Cope ANN. § 18.2-31 (2013); Va. Sup Cr. R. 3A:17 (requiring unanimous verdicts in all criminal

prosecutions).

3 Va. Sup Cr. R. 3A:17(a).

51 Va. CODEANN. § 19.2-283 (2013).

85 Va. CODEANN. § 19.2-286 (2013) ; VA. Sup CT. R. 3A:17(c).

8 Va. Const. art. I § 8 (stating that a criminal defendant cannot be found guilty without “unanimous consent” of
ajury); VA. Sup Cr. R. 3A:17(a).

At the close of the Commonwealth’s case or at the conclusion of all the evidence, and upon
motion of the defendant, the court must enter a judgment of acquittal if it finds the evidence
insufficient, as a matter of law, to sustain a conviction.®” If the court sets aside the verdict for
any other reason, including trial error, it will grant a new trial.

2. Penalty Phase

If the jury finds the defendant guilty of one or more capital offenses, a separate proceeding is
held “as soon as is practicable” to determine whether to impose the death penalty or a sentence
of life imprisonment.” The penalty phase must be held before the same jury, “as if it were a
continuation of the original trial and continue from day to day until concluded.”

During the penalty phase, both parties are afforded opportunities to present and cross-examine
witnesses and other evidence relevant to sentencing and to make opening and closing
statements." Upon motion of the Commonwealth’s attorney and consent of the victim, the
victim also may testify on the impact of the offense.°? Admissible evidence includes the
circumstances surrounding the offense, the history and background of the defendant, and
mitigating circumstances including, but not limited to

(1) the defendant has no significant history of prior criminal activity,

(2) the capital felony was committed while the defendant was under the influence of
extreme mental or emotional disturbance,

) the victim was a participant in the defendant’s conduct or consented to the act,

) at the time of the commission of the capital felony, the capacity of the defendant
to appreciate the criminality of his/her conduct or to conform his/her conduct to
the requirements of law was significantly impaired,
the age of the defendant at the time of the commission of the capital offense, or

(6) the sub-average intellectual functioning of the defendant. ui

Statements made by the defendant during evaluations of competency or sanity at the time of the
offense may not be introduced against the defendant.**

87 Va. Sup CT.R. 3:A:15(c).

8 Va. CODE ANN. §§ 19.2-264.3(C), 19.2-264.4 (2013).

90 Va. Sup CT. R. 3A:18; VA. CODE ANN. § 19.2-264.3(C) (2013).

5! Va. CODE ANN. § 19.2-264.4(B) (2013).

® Va. CODE ANN. § 19.2-264.4(A)(1) (2013) (the court will limit the victim’s statement to “(i) identify the victim,
(ii) itemize any economic loss suffered by the victim as a result of the offense, (iii) identify the nature and extent of
any physical or psychological injury suffered by the victim as a result of the offense, (iv) detail any change in the
victim's personal welfare, lifestyle or familial relationships as a result of the offense, (v) identify any request for
psychological or medical services initiated by the victim or the victim's family as a result of the offense, and (vi)
provide such other information as the court may require related to the impact of the offense upon the victim.”); VA.
Cope ANN. § 19.2-299.1 (2013) (also listing crime victim’s and witness’s rights generally); see also Rock v.
Commonwealth, 610 S.E.2d 314, 315 (Va. App. 2005) (permitting the brother of the victim to testify about the
impact on him and his family).

83" Va. CODE ANN. § 19.2-264.4(B) (2013).

Va. CopE ANN. § 19.2-264.3:3 (2013).

A defendant may not be sentenced to death unless the Commonwealth proves beyond a
reasonable doubt that

(1) _ there is a probability based upon evidence of the prior history of the defendant or
of the circumstances surrounding the commission of the offense of which s/he is
accused that s/he would commit criminal acts of violence that would constitute a
continuing serious threat to society (“dangerousness predicate”), or

(2) the defendant’s conduct in committing the offense was outrageously or wantonly
vile, horrible or inhuman, in that it involved torture, depravity of mind, or
aggravated battery to the victim (“vileness predicate”).°°

The jury must be unanimous in finding that the Commonwealth has met their burden of proof
with respect to the presence of either of the above aggravators.°° Moreover, a verdict form will
be “defective” should it “fail[] to explicitly set out the unanimity required in the jury finding of
one or both of the aggravating factors beyond a reasonable doubt.”°” A jury also must specify
which aggravator it has found to support its recommendation of a death sentence. °°

If the jury finds that one or both aggravators have been proven beyond a reasonable doubt, it may
nevertheless conclude that the defendant should not be sentenced to death.®° If the jury cannot
agree as to the penalty, “the court shall dismiss the jury and impose a sentence of imprisonment
for life.”1°

If the jury sentences the defendant to death, before imposing the death sentence, the court must
direct a probation officer to “thoroughly investigate the history of the defendant and any and all
other relevant facts, to the end that the court may be fully advised as to whether the sentence of
death is appropriate and just.*!°! If the court determines that the death penalty is not

85 Va. CODE ANN. § 19.2-264.4(C) (2013).

9° Prieto v. Commonwealth, 682 S.E.2d 910, 935 (Va. 2009). Un-adjudicated prior conduct is admissible for
determining future dangerousness. VA. CODE § 19.2-264.3:2 (2013); Lovitt v. Commonwealth, 537 S.E.2d 866, 879
(Va. 2000) (future dangerousness in society permitted even though only other sentencing option is life imprisonment
with no parole); see also Cherrix v. Commonwealth, 513 S.E.2d 642, 653 (Va. 1999) (upholding the exclusion of
prison-life evidence).

Prieto, 682 S.E.2d at 935.

Prieto, 682 S.E.2d at 935 (“[T]here is no language in [the] verdict forms .. . requiring the jury to find one or
both aggravating factors ‘unanimously and beyond a reasonable doubt.’ In this case, it is impossible to discem from
the verdict forms whether the jury unanimously found either or both aggravating factors beyond a reasonable doubt.
This presents the troubling possibility that six or more of the jurors based their decision on the ‘future
dangerousness’ factor, while the other six or fewer based their decision on the ‘vileness’ factor. This hypothetical
result ... would result in the jury sentencing [the defendant] to death based on a non-unanimous verdict in violation
of the Virginia Constitution.”). See also Prieto v. Commonwealth, 721 S.E.2d 484, 490 (Va. 2012) Caner the
i ing and ing evidence, the jury unanimously found both aggravating factors ....”)

98

0
(emphasis added).
"Prieto, 682 S.E.2d at 931 (“Our decisions . .. make it clear that a verdict form must provide the jury with the
explicit option of imposing a life sentence even if the jury finds one or both aggravating factors.”).
100" Va. CODE ANN. § 19.2-264.4(D) (2013),
'! Va, Cope ANN. § 19.2-264.5 (2013). The post-sentence report is created by a probation officer of the
Commonwealth, upon a thorough investigation of the defendant’s history and any relevant facts, so that “the court
may be fully advised as to whether the sentence of death is appropriate and just.” VA. CODE ANN. § 19.2-264.5
(2013).

“appropriate or just,” the court may set aside the death sentence and sentence the defendant to
life imprisonment.!

C. Motion for a New Trial, Direct Appeal, Rehearings, and Review by the United States
Supreme Court

1. Motion to Set Aside the Verdict and Petition for Writ of Actual Innocence

Judgments may only be modified by the trial court within twenty-one days after the date of
entry.’ During this time, the defendant may file a motion to set aside the verdict, which may be
based on error committed during trial or the sufficiency of the evidence as a matter of law to
sustain the conviction.’ The defendant also may move for a new trial based on “newly
discovered evidence” if four conditions are met:

(1) the evidence is discovered subsequent to the trial;

(2) the evidence could not, by the exercise of diligence, have been discovered
before the trial terminated;

(3) the evidence is not “merely cumulative, corroborative, or collateral”;

(4) the evidence is material and “should produce opposite results on the merits

at another trial.”

However, Supreme Court of Virginia Rule 1:1, known as the Commonwealth’s “21-Day Rule,”
prevents defendants from introducing new evidence more than twenty-one days after the circuit
court judge has imposed a death sentence. The court must act on the motion within the
twenty-one day period.!””

2. Direct Appeal and Automatic Review

If a defendant is convicted of a capital felony and sentenced to death, s/he may appeal directly to
the Supreme Court of Virginia.’ When setting its docket, the Supreme Court of Virginia must
give priority to cases in which the death penalty has been imposed.! Proceedings from the

12 Va. CODE ANN. § 19.2-264.5 (2013).

13 Va. Sup CT.R. 1:1.

14 Va, Sup CT. R. 3A:15(b)

105 Omdorff v. Commonwealth, 628 S.E.2d 344, 352 (Va. 2006) (stating the general rule, although exceptions may
be recognized to prevent an erroneous judgment from becoming final).

16 Va. Sup Cr. R. 1:1. Notwithstanding the provisions of Rule 1:1, a death row inmate may file a writ of actual
innocence based on biological or “previously unknown or unavailable” nonbiological evidence. See VA. CODE ANN.
§§ 19.2-327.2 to -327.6, 19.2-327.10 to -327.11 (2013).

17 See Super Fresh Food Markets of Va., Inc. v. Ruffin, 561 S.E.2d 734, 560 (Va. 2002) (“The running of the
twenty-one day time period prescribed by Rule 1:1 may be interrupted only by the entry, within the twenty-one day
time period, of an order modifying, vacating, or suspending the final judgment order. Neither the filing of post-trial
or post-judgment motions, nor the trial court’s taking such motions under consideration, nor the pendency of such
motions on the twenty-first day after final judgment, is sufficient to toll or extend the running of the twenty-one day
time period of Rule 1:1.”) (citations omitted).

18 Va. CODE ANN. §§ 17.1-313, 17.1-406 (2013). “Sentence review shall be in addition to appeals, if taken, and
review and appeal may be consolidated.” VA. CODE ANN. § 17.1-313(F) (2013).

109 Va. CODE ANN. § 17.1-313(G) (2013).

circuit court must be transcribed “as expeditiously as practicable” and the transcript and record
filed in the Supreme Court of Virginia.” Upon receipt, the clerk of the Supreme Court notifies
the Attorney General of Virginia, counsel for the appellant, and the Director of the Department
of Corrections of the date of receipt, known as the filing date.'!' In order to pursue an appeal, a
death row inmate must file assignments of error, including “a designation of the parts of the
record relevant to the review and to the assignments of error,” with the clerk of the Supreme
Court of Virginia within thirty days of the filing date.’ Within ten days of this filing, the
appellee may file a “designation of the additional parts of the record that he wishes included as
germane to the review or to the assignments of error.”

Both the inmate and the Commonwealth are permitted “to submit briefs within time limits
imposed by the court, either by or order, and to present oral argument.”!!* The capital defendant
must file his/her brief within sixty days of the filing date.'!° The appellee must file his/her brief
within 120 days of the filing date.""° Briefs for both parties may not exceed the longer of 100
pages or 17,500 words.!'’ The appellant must file a reply brief—which may not exceed the
greater of fifty pages or 8,750 words—within 140 days of the filing date.""® There are no
exceptions, except by permission of the Court, to these limitations.'!® However, the Supreme
Court of Virginia retains the right, “on motion in a particular case, [to] vary the procedure
prescribed by this Rule in order to attain the ends of justice.”

On direct appeal, the Supreme Court of Virginia will consider “any errors in the trial enumerated
by appeal.” 1 Nevertheless, “[nJo ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable [the Supreme] Court [of Virginia] to attain the ends of
justice.” The Court has elaborated on this standard, observing that “[w]hether the ends of
justice provision should be applied involves two questions: (1) whether there is error as
contended by the appellant; and (2) whether the failure to apply the ends of justice provision

0 Va. CODE ANN. § 17.1-313(B) (2013). See also Va. Sup Cr. R. 5:26(a) (direct appeal), 5:7(h) (state habeas).
M1 Va. Sup Cr. R. 5:22(a).
12 Va. Sup Cr. R. 5:22(c).
U3 Va. Sup Cr. R. 5:22(c).
“4 Va. CODE ANN. § 17.1-313(F) (2013).
U5 Va. Sup Cr. R. 5:22(e)(1).
NG Va. Sup CT. R. 5:22(e)(2).
47 Va. Sup Cr. R. 5:22(e)(1).
U8 Va. Sup CT. R. 5:22(e)(3). In addition, as with “all motions, petitions, and briefs” filed in the Supreme Court of
Virginia, the parties’ briefs “must be in at least 14-point font, must use either Courier, Arial, or Verdana font, and
must be printed on only one side of the page.” VA. Sup CT. R. (a)(2).
4S" Id. The limitations on length of the briefs “do not include appendices, the cover page, table of contents, table of
authorities, and certificate.” Id.

Va. Sup CT.R. 5:22(g).
21 Va. CopE ANN. § 17.1-313(C); J. Lecis. AuDIT & REV. COMM’N, supra note 2, at 67. “With respect to the
sentence of death, it shall be a sufficient assignment of error to state that the sentence was imposed under the
influence of passion, prejudice, or other arbitrary factor or that the sentence is excessive or disproportionate to the
penalty imposed in similar cases.” VA. Sup CT. R. 5:22(d).
2 Va. Sup CT. R. 5:25.

would result in a grave injustice.”!?? On other occasions, the Court has observed that an

appellant’s argument, not having been presented to the trial court, will not be considered on
appeal.’ Errors properly preserved, by contrast, will be reviewed by the Court in accordance
with the appropriate standard. !?°

Regardless of whether the defendant appeals his/her sentence or conviction, the Supreme Court
of Virginia must undertake an automatic review of the death sentence.'”° Specifically, the Court
must determine

(1) Whether the sentence of death was imposed under the influence of
passion, prejudice or any other arbitrary factor; and

(2) Whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant. !””

The Supreme Court of Virginia reviews the death sentence by comparing the instant case to other
capital cases, giving “particular emphasis” to cases in which the death penalty was imposed. aa
The Court also may collect the “records of all capital felony cases tried” and then “consider such
records as are available as a guide in determining whether the sentence of death imposed in the
case under review is excessive.” 7°

Upon review of the death sentence, the Court may (1) affirm the death sentence; (2) commute the
sentence to imprisonment for life; or (3) remand to the trial court for a new sentencing
proceeding. '%°

3. Rehearings and Reconsideration

Once an order or opinion on direct appeal has been issued, the Supreme Court of Virginia, by
motion of either party, may grant a rehearing prior to the opinion becoming final.'*’ A petition
for rehearing must be filed within ten days after the date the opinion was issued, and it will be

ues Gheorghiu v. Commonwealth, 701 S.E.2d 407, 413 (Va. 2010) (citing Charles v. Commonwealth, 613 S.E.2d
432, 433 (Va. 2005)).
124 See, e.g., Teleguz v. Commonwealth, 643 S.E.2d 708, 716 (Va. 2007) (citing VA. Sup CT. R. 5:25, Goins v.
Commonwealth, 470 S.E.2d 114, 128 (Va. 1996)).
5 Cognizable issues on direct appeal may be limited by Court precedent. See, e.g., Lenz v. Commonwealth, 544
S.E.2d 299, 304 (Va. 2001) (“Claims raising ineffective assistance of counsel must be asserted in a habeas corpus
proceeding and are not cognizable on direct appeal.” (citing Johnson v. Commonwealth, 529 S.E.2d 769, 781 (Va.
2000); Roach v. Commonwealth 468 S.E.2d 98, 105 n.4 (Va. 1996))).
26 Va. CODE ANN. § 17.1-313(A) (2013) (“A sentence of death, upon the judgment thereon becoming final in the
circuit court, shall be reviewed on the record by the Supreme Court” of Virginia).

7 Va. CODE ANN. § 17.1-313(C) (2013).
28 J. Lecis. AuDIr & REV. COMM’N, supra note 2, at 69-70. See, e.g., Peterson v. Commonwealth, 302 S.E.2d
520, 529 (Va. 1983) (“[W]e have examined the records in all capital murder cases reviewed by this Court, with
particular emphasis given to those cases in which the death sentences were based upon the probability that the
defendants would be continuing threats to society .... [W]e conclude that juries generally in this jurisdiction
impose the death sentence for conduct similar to that of Peterson.”) (emphasis in original).
1" Va. CODE ANN. § 17.1-313(E) (2013).
180 Va. CODE ANN. § 17.1-313(D) (2013).
131 Va. Sup Cr. R. 5:37(b).

granted only if one of the Justices who decided the case adversely to the applicant determines
that there is “good cause” for such rehearing.” Neither party is permitted oral arguments on
applications for rehearings.'*? If a rehearing is granted, the Court will determine if additional
briefing or argument is necessary .!™*

If either party intends to appeal for certiorari to the U.S. Supreme Court, the Supreme Court of
Virginia may, upon motion filed within fifteen days after it issues its order deciding the case,
“defer the issuance of its mandate until proceedings in the Supreme Court of the United States
have been terminated.”!*

4. Discretionary Review by the U.S. Supreme Court

If the Supreme Court of Virginia affirms the death sentence on direct appeal, the defendant has
ninety days in which to petition for a writ of certiorari with the U.S. Supreme Court.° If
certiorari is granted, the U.S. Supreme C ourt will review the conviction for federal constitutional
errors and misapplication of federal law.'*’ The Court may affirm, modify, vacate, set aside,

reverse, or remand the judgment.'*®

D. State Post-Conviction Relief

1. State Habeas Corpus

After the Supreme Court of Virginia affirms a death sentence on direct appeal, a capital
defendant may file a petition for state habeas corpus relief.’ Prior to 1995, habeas corpus
petitions in death penalty cases were reviewed by Virginia circuit courts; however, state habeas
corpus petitions in death penalty cases must now be submitted directly to the Supreme Court of
Virginia.“° The petition must be filed “within sixty days after the earliest of” (1) the denial by
the U.S. Supreme Court of a petition for a writ of certiorari following the judgment of the
Supreme Court of Virginia on direct appeal; (2) an order of the U.S. Supreme Court affirming
imposition of the sentence of death following the grant of a writ of certiorari; or (3) the
expiration of the time period for filing a petition for a writ of certiorari. 1“!

Indigent death row inmates will be appointed counsel to provide representation during state
habeas corpus proceedings within thirty days of the decision of the Supreme Court of Virginia
affirming the death penalty.’ Virginia statute provides that “notwithstanding the time
restrictions otherwise applicable to the filing of a petition for a writ of habeas corpus [as

132 Va. Sup Cr. R. 5:37(b), (e). Rehearing proceedings must be in accordance with Code section 8.01-675.2. Va.
Sup Cr. R. 5:37(e).
Va. Sup CT. R. 5:37(e).
84 Va. Sup Cr. R. 5:37(f).
85 Va. Sup CT.R. 5:39.
86 28 U.S.C. § 1257 (2013).
Id.

88 28 U.S.C. § 2106 (2013).

139 Va. Const. art VI§ 1, § 16; VA. CODE ANN. § 8.01-654 (2013).

J. Lecis. Aupir & Rev. CoMM’N, supra note 2, at 57 ; VA. CODE ANN. § 8.01-654(C)(1) (2013).
Ml "Va. CODE ANN. § 8.01-654.1 (2013); VA. Sup CT. R. 5:7A.

Va. CODE ANN. § 19.2-163.7 (2013) (prescribing how to formulate a list of eligible attomeys).

described above], an indigent prisoner may file such a petition within 120 days following
appointment . . . of counsel to represent him.”!3

Petitions for habeas corpus must be completed in accordance with a form set forth in the Virginia
Code and must include an enumerated list of the grounds for relief, all supporting facts upon
which the petitioner relies, citations to relevant legal authorities, and a listing of all previous
petitions and their dispositions.’ A petition for writ of habeas corpus cannot exceed 100 pages
or 17,500 words.'*° The petition must contain all allegations “known to [the] petitioner at the
time of filing” and no writ will be granted “on the basis of any allegation the facts of which
petitioner had knowledge at the time of filing any previous petition.”““° If the time limit for
filing for state habeas corpus relief has not expired and a nuling on the merits of the petition has
not been issued, a petitioner may move for leave of Court to substitute an amended petition. '*”

Within thirty days of service of the petition, the Attorney General of Virginia must file a
responsive pleading.'“* The responsive pleading may include a motion to dismiss and must state
whether, in the opinion of the Attorney General of Virginia, the taking of additional evidence is
necessary for the proper disposition of the petition.“” The petitioner may file a reply within
twenty days of the filing of the responsive pleading. °°

The Court may grant or deny the petition on the basis of the record, if “the allegations of
illegality of the petitioner’s detention can be fully determined on the basis of recorded
matters.”'!_ However, the petitioner may request an evidentiary hearing if s/he believes the
taking of additional evidence is necessary.’? In death penalty cases, the Supreme Court of
Virginia may, in its discretion, direct the circuit court that entered the original judgment to
conduct an evidentiary hearing, where both the Commonwealth and the death row inmate are
given the opportunity to present evidence.'* At the evidentiary hearing, the petitioner may
testify, and either party may call witnesses or may be permitted to read into evidence affidavits
of witnesses.’ If the petitioner alleges ineffective assistance of counsel as a ground for the
illegality of his/her detention, s/he is deemed to waive attorney-client privilege “to the extent
necessary to permit a full and fair hearing for the alleged ground.” !°°

The circuit court must hold the evidentiary hearing within ninety days of issuance of the
Supreme Court of Virginia’s order of a hearing.’ The circuit court must report its findings of
fact and recommend conclusions of law to the Supreme Court within sixty days of the conclusion

M3 Va. CODE ANN. § 8.01-654.1 (2013).

Mt Va. CODEANN. §§ 8.01-654, 8.01-655 (2013); Va. Sup CT. R. 5:7A.
45 Va. Sup Cr. R. 5:7A(g).

M6 Va. CODE ANN. § 8.01-654(B)(2) (2013).

M7 Va, Sup CT.R. 5:7A(i).

M8 Va, Sup Ct.R. 5:7A(c).

149 Id.

8° Va, Sup CT.R. 5:7A(d).

5! Va, CODEANN. § 8.01-654(B)(4) (2013).

‘2 Va, Sup CT.R. 5:7A(b).

‘83 Va, CODEANN. § 8.01-654(C)(1) (2013).

'* Va. CODE ANN. §§ 8.01-660, 8.01-661 (2013).
'5 Va. CODE ANN. § 8.01-654(B)(6) (2013).

86 Va. CODE ANN. § 8.01-654(C)(3) (2013).

of the hearing.’’ Objections to the circuit court’s findings must be filed with the Supreme Court
within thirty days after the circuit court’s report is filed.

The Supreme Court of Virginia will grant a writ of habeas corpus only if the petitioner shows
probable cause that s/he is detained unlawfully.'®° If the Court grants a writ of habeas corpus, it
must “discharge or remand” the inmate, or “admit him[/her] to bail.”!©° Upon denial or issuance
of a writ by the Supreme Court of Virginia, parties may seek discretionary review of the decision
by the U.S. Supreme Court.’

2. Petition for Actual Innocence

The defendant may also petition the Supreme Court of Virginia to issue a “writ of actual
innocence based on biological evidence, notwithstanding any other provision of the law or rule
of court.” In order for a writ to issue, a death row inmate must comport with several pleading
requirements, including alleging under oath that s/he “is actually innocent of the crime for which
[s/Jhe was convicted.”"® The writ will only be granted if the petitioner proves all allegations
contained in his/her motion by clear and convincing evidence and the court finds that no
reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt based
on such evidence.’ The court may then vacate the judgment, or modify the conviction
accordingly.'® The court may dismiss the petition if the capital defendant fails to establish facts
sufficient to justify the writ.!°°

Convicted persons who entered a plea of not guilty may also apply for a writ of actual innocence
with respect to nonbiological evidence.'*’ The Virginia Court of Appeals has the authority to
issue writs of actual innocence based on nonbiological evidence, and “either party may appeal a
final decision of the Court of Appeals to the Supreme Court of Virginia,” which also has the
authority to issue such writs. °°

E. Federal Habeas Corpus

A petitioner wishing to challenge his/her conviction and sentence as a violation of federal law
may file a petition for a writ of habeas corpus with the appropriate federal judicial district.'°? In

7 Id.

158 Id.

159 Va. CODE ANN. § 8.01-654 (2013).

160 Va. CODEANN. § 8.01-662 (2013).

'! 28 U.S.C. §§ 1257, 2101(c) (2013).

18 Va. CODEANN. § 19.2-327.2 (2013).

See generally VA. CoDE ANN. § 19.2-327.3 (2013) (describing contents and form of a petition). For a
discussion of Virginia’s writ of actual innocence, see Chapter Three on Preservation and Treatment of Evidence.

ie Va. CODE ANN. §§ 19.2-327.5, 19.2-327.13 (2013).

166

167 See VA. CODE ANN. § 19.2-327.10 (2013).

Id. See also VA. CODE ANN. § 19.2-327.11 (2013) (describing the contents and form of a petition based on
previously unknown or unavailable evidence of actual innocence).

69 28 U.S.C. §§ 2254, 2241(d) (2013); RULE 3(a) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. CT.;
Fep. R. App. P. 22(a).

order to obtain relief on the petition for a writ of habeas corpus, the inmate must have raised all
relevant federal claims in state court, as the failure to exhaust all state remedies available on
direct appeal and state post-conviction is grounds to dismiss the petition.!” Generally, an inmate
under a death sentence imposed by a state court is permitted one year to file a petition for habeas
corpus in federal court.!”

Federal law imposes a number of procedural restrictions on the federal courts’ ability to review a
death-sentenced inmate’s claims on the merits. For example, if the inmate challenges the state
court’s determination on a factual issue, s/he has the burden of rebutting, by clear and convincing
evidence, the federal law presumption that state court factual determinations are correct.” If the
petitioner raises a claim that a Commonwealth court previously determined on the merits, the
inmate will not be granted relief unless s/he proves that the state court’s adjudication of the claim
either: (1) resulted in a decision contrary to, or was an unreasonable application of, clearly
established federal law, as determined by the U.S. Supreme Court; or (2) resulted in a decision
based on an unreasonable determination of the facts in light of the evidence presented in the state
court proceeding.’

Furthermore, the federal district court may not hold an evidentiary hearing on a claim in which a
petitioner failed to develop the underlying facts in the state court proceedings unless:

(A) the claim relies upon: (i) a new rule of constitutional law, made retroactive to
cases on collateral review by the [U.S.] Supreme Court, that was previously
unavailable or (ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and (B) the facts underlying the
claim would be sufficient to establish by clear and convincing evidence that but
for constitutional error, no reasonable fact finder would have found the applicant
guilty of the underlying offense. !”

If the court decides that an evidentiary hearing is unnecessary, it will rule on the petition without
additional evidence.’ Based on the evidence presented, the judge may grant the petitioner a
new trial, a new sentencing phase, ora new direct appeal; order the petitioner released from state
custody; or deny relief altogether.’

170 28 U.S.C. § 2254(b)(1) (2013). Under certain circumstances, a federal district court can stay a petition that
raises both exhausted and unexhausted constitutional violations to allow the petiti an ity to present his
unexhausted claims in state court. Rhines v. Weber, 544 U.S. 269, 277-79 (2005).

The deadline for filing the petition is one year from any date on which (1) the judgment became final, (2) the
state impediment that prevented the petitioner from filing was removed, (3) the U.S. Supreme Court recognized a
new right and made it retroactively applicable to cases on collateral review, or (4) the underlying facts of the
claims) could have been discovered through due diligence. 28 U.S.C. § 2244(d)(1) (2013).

1298 U.S.C. § 2254(e)(1) (2013).

"8 98 U.S.C. § 2254(d) (2013).

4 28 U.S.C. § 2254(e)(2) (2013); Williams v. Taylor, 529 U.S. 420, 432 (2000) (“Under the opening clause of §
2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or
some greater fault, attributable to the prisoner of the prisoner’s counsel.”).

"5 RULE 8 OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. CT.

1% 28 U.S.C. §§ 2241, 2243 (2013) (providing that a district court may, in granting the writ, “dispose of the matter
as law and justice require”).

20

If an inmate seeks to appeal an adverse decision by the district court, s/he must request a
certificate of appealability from either a federal district or circuit court judge.’”” A judge may
issue a certificate of appealability only for those claims on which the petitioner has made a
substantial showing of the denial of a constitutional right.!”°

F. Clemency

A death row inmate may seek final review of his/her conviction and sentence by filing a petition
for clemency with the Governor of the Commonwealth of Virginia.'? The G ovemor has the sole
power to commute a death sentence, grant a pardon, and/or issue a reprieve. ®° When deciding to
commute capital punishment, the Governor may issue an order to the Director of the Virginia
Department of Corrections to receive and confine the inmate according to the Governor’s
order.'?! The Governor is required to communicate the “particulars” of every case of
punishment commuted, with his/her reasons for doing so, at each regular session of the Virginia
General Assembly.'*”

In addition, the Governor may request the Virginia Parole Board (Parole Board) to “investigate
and report” to him/her on cases in which executive clemency is sought. 183 Tn the event the
Governor does not request the Parole Board’s assistance, the Parole Board may nonetheless
develop a report and present recommendations to the Governor on any case “in which it believes
action on the part of the Governor is proper or in the best interest of the Commonwealth.” 4
Any recommendation by the Parole Board is nonbinding on the Governor.

Since the reinstatement of the death penalty, Virginia Governors have granted clemency to eight
death row inmates: Joseph Giarratano, Herbert Bassette, Earl Washington, Joseph Payne,
William Saunders, Calvin Swann, Robin Lovitt, and Percy Walton. ®°

G. Execution
The circuit court may schedule an execution thirty days after the death sentence is

pronounced.!®’ If the date fixed by the court passes without execution, the circuit court that
pronounced the sentence will hold a hearing and fix a new date for execution.’ Virginia law

“7 28 U.S.C. § 2253(0)(1) (2013); FED. R. ApP. P. 22(b)(3).

178 28 U.S.C. § 2253(c)(2) (2013).

J. Lecis. Aupir & REV. CoMm’N, supra note 2, at 1, xiii.

VA. CONST. art. V, § 12 (“The Governor shall have power . .. to commute capital punishment.”); VA. CODE
ANN. § 53.1-229 (2013).

181 Va. CODE ANN. § 53.1-230 (2013).

18 Va. Const. art. V, § 12.

183 Va. CODE ANN. § 53.1-231 (2013).

‘8! Va, CODEANN. § 53.1-231 (2013); J. Lecis. AUDIT & REV. COMM’N, supra note 2, at 80-81.

185 Va. CoDE ANN. §§ 53.1-229-53.1-231 (2013); see generally J. Lecis. Aupir & REV. COMM’N, supra note 2, at
83 (discussing the Governor’s “complete discretion” to determine the clemency process).

18 “Clemency: Commutations in Capital Cases on Humanitarian Grounds, DEATH PENALTY INFO. CTR,
http://www.deathpenaltyinfo.org/clemency (last visited Aug. 19, 2013). For a discussion on the grants of clemency
and the Governor’s issuance of clemency in each of these cases, see Chapter Nine on Clemency.

87 Va, CODE ANN. § 53.1-232(A) (2013).

188 Va. CODE ANN. § 53.1-232(B) (2013).

21

entitles a death row inmate to be represented by an attorney, but the inmate “need not be present”
when the circuit court fixes the new date.’® A copy of the order fixing the execution date must
be presented by the circuit court clerk to the Director of the Virginia Department of Corrections
(DOC), who must then deliver it to the inmate within ten days before the execution date, ensure
it is explained to the inmate if the inmate is unable to read, and retum it to the clerk.‘

The circuit court must set an execution date when it is notified by the Attorney General of
Virginia, in writing, and the court finds that

(1) the Supreme Court of Virginia has denied habeas corpus relief or the time
for filing a timely habeas corpus petition in that Court has passed without
such a petition being filed,

(2) the Supreme Court of the United States has issued a final order disposing
of the case after granting a stay to review the judgment of the Supreme
Court of Virginia on habeas corpus,

(3) the United States Court of Appeals has affirmed the denial of federal
habeas corpus relief or the time for filing a timely appeal in that court has
passed without such an appeal being filed, or

(4) the Supreme Court of the United States has issued a final order after
granting a stay in order to dispose of the petition for a writ of certiorari to
review the judgment of the United States Court of Appeals. '®?

The trial court will conduct a hearing within ten days of receiving notice and set the execution
date for no later than sixty days after the proceeding.’ Once an execution date is fixed, the trial
court or Supreme Court of Virginia may grant a stay of execution “only upon a showing of
substantial grounds for habeas corpus relief””'®* If a stay is not granted, the execution must
occur at least thirty days after the sentence is pronounced. !*

If the fixed date passes without execution due to a reprieve from the Govemor, the execution will
be carried out on the day on which the reprieve expires.’ Notice of a reprieve, writ of error
from the Supreme Court of Virginia, or stay of execution must be given to the DOC Director, the
warden or superintendent having custody over the inmate, and inmate. !®°

All executions, whether by electrocution or lethal injection, are conducted within the
Commonwealth’s permanent death chamber provided and maintained by the DOC Director.'%”
The execution must be conducted by the Director or one or more designated assistants, in

"© VA, CODE ANN. § 53.1-232.1 (2013) (emphasis added).
d.

8! Va. CODEANN. § 53.1-232(A) (2013).
185 Va. CODE ANN. § 53.1-232(C) (2013).
196 Va. CODE ANN. § 53.1-232(D) (2013).

197 Va. CODE ANN. §§ 53.1-233, 53.1-234 (2013). The death chamber must have “all the necessary appliances for
the proper execution of prisoners by electrocution or by continuous intravenous injection of a substance or
combination of substances sufficient to cause death.” VA. CODE ANN. § 53.1-233 (2013).

22

accordance with procedures developed by the DOC, in the presence of the DOC Director or an
assistant, a DOC physician or his assistant, and at least six citizens who are not DOC
employees.'"* The method is chosen by the inmate, unless s/he fails to make a choice within
fifteen days of the execution, in which case s/he will be executed by lethal injection. ®° The
inmate’s counsel and clergyman may be present during the execution at his/her request.
Virginia prohibits the release of information on the identities of “persons designated by the
Director to conduct executions,” and exempts execution personnel identifying information from
the Freedom of Information Act.

After the execution, the physician in attendance will perform an examination to determine that
death has occurred.”” The Director will then certify that the execution occurred and submit
his/her certification, along with the physician’s death certification, to the clerk of the court that
pronounced the death sentence for entry into the case record.”°

188 Va. CODE ANN. §§ 53.1-233, 53.1-234 (2013).
199 Va. CODE ANN. § 53.1-234 (2013).

200 Id.
201 Va. CODE ANN. § 53.1-233 (2013).
202 Va. CODEANN. § 53.1-235 (2013).
203 Id.

23

24

CHAPTER TWO
LAW ENFORCEMENT IDENTIFICATION AND INTERROGATION PROCEDURES
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

Among individuals proved innocent through DNA testing, eyewitness misidentification and false
confessions have been two of the leading causes of wrongful convictions. When such persons
are wrongfully convicted of murder, the injustice is twofold: an innocent person is incarcerated
and possibly sentenced to death, and a guilty criminal remains free.’ From 1989 to 2012, 416
previously convicted “murderers” were exonerated nationwide.” In about 27% of these cases,
there was at least one eyewitness misidentification and 25% involved false confessions.’

Eyewitness Identifications

Studies have shown that the manner in which lineups and showups are conducted affects the
accuracy of eyewitness identification.’ To decrease the risk of convicting the innocent, while
increasing the likelihood of convicting the guilty, the American Bar Association promulgated
best practices for promoting the accuracy of eyewitness identification? To avoid
misidentification, these best practices recommend that the lineup or photospread include foils—
participants in the lineup or photospread other than the suspect—chosen for their similarity to the
eyewitness’s description.® Moreover, the administering officer should be unaware of the
suspect’s identity and should tell the eyewitness that the perpetrator may not be in the lineup.
Law enforcement agencies also should video record identification procedures, including the
eyewitness’s statement regarding his/her degree of confidence in the identification.

Law enforcement agencies should consider using a sequential lineup or photospread, rather than
presenting everyone to the eyewitness simultaneously. In the sequential approach, the
eyewitness views one person at a time and is not told how many persons s/he will see. The
eyewitness thus is encouraged to compare the features of each person viewed with the
eyewitness’s recollection of the actual perpetrator rather than comparing the faces of the various
people in the lineup or photospread to one another in a quest for the “best match.” Caution in

1 See, e.g., Richard E. Meyer, A Tragic Conviction: How Justice System Can Go Wrong, L.A. TIMES, Mar. 17,

1985, at 1 (detailing the case of Melvin Lee Reynolds, who falsely confessed to the murder of a child in Missouri
and was sentenced to life in prison, allowing the actual perpetrator, serial killer Charles Ray Hatcher, to remain free
and murder another victim).
2 See Samuel R. Gross & Michael Shaffer, Exonerations in the United States, 1989 — 2012 18 (2012), available at
http://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_ 2012 full_report.pdf. This
number includes manslaughter convictions. Id.
5 Id. at 40.

See, e.g., Steven Penrod, Eyewitness Identification Evidence: How Well Are Witnesses and Police Performing?,
18 CRIM. JusT. 36, 37 (2003).
5 ABA, BEST PRACTICES FOR PROMOTING THE ACCURACY OF EYEWITNESS IDENTIFICATION PROCEDURES, 2004
Ann. Mtg. (adopted Aug. 9-10, 2004), available at http://www.americanbar.org/content/dam/aba/migrated/
moratorium/policy/2000s/2004 AM_111E.authcheckdam.pdf.

See C.A. Elizabeth Luus & Gary L. Wells, Eyewitness Identification and the Selection of Distractors for
Lineups, 15 Law & Hum. BEHAV. 43 (1991).

25

administering lineups and showups is especially important because flaws may easily taint later
lineup and at-trial identifications.

Custodial Interrogations

Of the 416 murder exonerations, 102 of the exonerees gave false confessions, some of which
were the product of police coercion.® Other reported reasons for false confessions include
duress, deception, fear of physical harm, ignorance of the law, and lengthy interrogations.°
Researchers have also found a correlation between a suspect’s age and mental health and the
probability of a false confession, as these persons are more likely to be influenced by suggestive
or coercive interrogation practices.'° One study of exonerated persons found that 42% of those
who were under the age of eighteen at the time of the crime, and 69% of those who had mental
retardation or a mental illness falsely confessed.'’ Innocent suspects also have confessed to
crimes because law enforcement officers threatened them with the death penalty.”

Electronically recording interrogations from their outset—not just from the point at which the
suspect has agreed to confess—can help avoid erroneous convictions. Complete recording is
increasing in the United States and around the world. Law enforcement agencies that make
complete recordings have found the practice beneficial to law enforcement.'? Complete
recording may avert controversies about what occurred during an interrogation, deter law
enforcement officers from using dangerous and/or prohibited interrogation tactics, and provide
courts with the ability to review the interrogation and the confession. In addition, allowing a
qualified expert witness to testify on factors that affect the validity of a confession may help
judges and juries to evaluate the defendant’s statements.

Officer Training

Initial training of law enforcement is likely to become dated rapidly, particularly due to advances
in scientific and technical knowledge about effective and accurate law enforcement techniques.
It is crucial, therefore, that officers receive ongoing, in-service training that includes review of
previous trainings and instruction in new procedures and methods. Thoroughness in criminal
investigations could also be enhanced by utilizing the training standards and disciplinary policies
and practices of Peace Officer Standards and Training Councils, 14 and other law enforcement

7 See BRIAN L. CUTLER, EYEWITNESS TESTIMONY: CHALLENGING YOUR OPPONENT’S WITNESSES 13-17, 42-44

(2002).

See Gross, supra note 2, at 41, 58.
9 Id. at 58. See also Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA
World, 82 N.C.L. Rev. 891, 963-74 (2004).

See Gross, supra note 2, at 59-60.

Td. at 60.
© For instance, the Norfolk Four falsely confessed to a murder after they were told they would receive the death
penalty if they did not cooperate. The case is discussed in the Analysis portion of this Chapter. See infra notes 218
241 and accompanying text.

3 See Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. &
CRIMINOLOGY 1127, 1127 (2005) (“In the past few years, the many benefits of complete audio or video recording of
custodial interviews have become increasingly apparent to all parties.”).

‘Peace Officer Standards and Training Councils are state agencies that set standards for law enforcement training
and certification and provide assi: to the law enfc ity.

26

oversight groups.’° Jurisdictions also should provide adequate opportunity for citizens and
investigative personnel to report serious allegations of negligence or misconduct by law
enforcement officers as well as forensic service providers.

‘5 Such organizations include the U.S. Department of Justice, which is empowered to sue police agencies under
the Violent Crime Control and Law Enforcement Act of 1994. See 42 U.S.C. § 14141 (2011); Debra gen,
Police Reform and the Department of Justice: An Essay on Accountability, 2 Burr. CRIM. L. REV. 815 (1999).

addition, the Commission on Accreditation for Law Enforcement Agencies, Inc., (CALEA) is an independent cor
group that has accredited law enforcement agencies in all fifty states. Similar, state-based organizations exist in
many places, as do g monitoring agencies. See generally CALEA,

jovel
hittp://www.calea.org/ (last visited June 11, 2013).

27

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW
A. Training, Accreditation, and Discipline of Virginia Law Enforcement

1. Training Standards

The Virginia Department of Criminal Justice Services (DCJS) is charged with establishing
minimum training standards for law enforcement officers in Virginia and regulating Virginia’s
law enforcement training academies.'° Virginia defines a law enforcement officer as “any full-
time or part-time employee of a police department or sheriff's office which is a part of or
administered by the Commonwealth or any political subdivision thereof, and who is responsible
for the prevention and detection of crime and the enforcement of the penal, traffic or highway
laws of the Commonwealth."

New law enforcement officers are required to comply with DCJS’ 8 compulsory minimum
training standards within twelve months of receiving their appointment.’® The standards require
officers to complete 480 hours of academy training on a variety of subjects including legal
issues, Patrol, investigations, and weapons use.’° Officers also must complete 100 hours of field
training.?” Detailed course requirements are published in the DCJS manual Performance
Outcomes for Compulsory Minimum Training for Law Enforcement Officers.”!

Virginia also requires existing law enforcement officers to complete forty hours of approved in-
service training every two years. a

2. Accreditation
a. Virginia Law Enforcement Professional Standards Commission
The Virginia Law Enforcement Professional Standards Commission (VLEPSC), a state agency
managed by DCJS, is charged with “ “establish[ing] professional standards and administer[ing] the

accreditation process by which Virginia [law enforcement] agencies can be systematically
measured, evaluated, and updated.” Accreditation is not mandatory but, as of March 2013,

'6 Va. CODEANN. § 9.1-102(2), (4), (13) & (14) (2013).
7 Va. CODEANN. § 9.1-101 (2013).
18 6 VA. ADMIN. CoDE § 20-20-40(A)
19 6 VA. ADMIN. CoDE § 20-20-21(B)
20 6 Va. ADMIN. CobE § 20-20-21(C)
21 See 6 VA. ADMIN. CODE § 20-20-21(A) (2013).

22 6 Va. ADMIN. Cope § 20-30-40(A) (2013); 6 VA. ADMIN. CODE § 20-30-50(A)(3) (2013).

Overview & Benefits, VA. DEP’T OF CRIMINAL JUSTICE SERVS.,
http://www.dejs. virginia. gov/accred/overview. cfm. (last visited Mar. 13, 2013). To obtain accreditation, agencies
must complete a three-step process of (1) (2) and (3) on-site assessment.
Law enforcement agencies seeking to maintain accreditation must provide an annual report detailing specified topics
as well as any major developments that may affect accreditation. VA. LAW ENFORCEMENT PROF’L STANDARDS
COMM’N, PROCESS AND PROCEDURES 12 (2011), available at http://www.dcjs. virginia.gov/accred/documents/0912-
VLEPSC ProcessProcedures.pdf.

(2013).
(2013).
Goat
(A
(

28

VLEPSC has accredited eighty-seven of Virginia’s 378 law enforcement agencies." VLEPSC
accreditation is a three step process requiring (1) enrollment in the program by submitting an
application; (2) completion of a self-assessment to determine compliance with VLEPSC
standards; and (3) an on-site assessment by DCJS staff.”

b. Commission on Accreditation for Law Enforcement Agencies

The Commission on Accreditation for Law Enforcement Agencies (CALEA) is an independent
accrediting authority established by the four major law enforcement membership associations in
the United States.” Twenty-six law enforcement agencies in Virginia have been accredited by
CALEA.”’ Similar to the VLEPSC application, a law enforcement agency seeking CALEA
accreditation must (1) enroll in the program by completing an A gency Profile Questionnaire; (2)
complete a self-assessment to determine whether the law enforcement agency complies with the
accreditation standards and, if not, develope a plan for compliance; and (3) participate in an on-
site assessment by CALEA.”* A fter these steps have been completed, the Commission will hold
a hearing to render a final decision on the agency’s accreditation.”” The CALEA standards are
used to “certify various functional components within a law enforcement agency—
Communications, Court Security, Intemal Affairs, Office Administration, Property and
Evidence, and Training.”

3. Investigating and Reporting Officer Misconduct
a. Virginia Criminal Justice Services Board

The DCJS’s Criminal Justice Services Board is charged with investigating and disciplining law
enforcement officer misconduct at the state level.*’ The Board is composed of twenty-eight

4 Accredited Agencies, VA. DEP’T OF CRIMINAL Justice SERVS.,
http://www.dcjs.virginia.gov/accred/agencies.cfm (last visited Mar. 13, 2013); Frequently Asked Questions, Va.
DeP’T OF CRIMINAL JUSTICE SERVS., http://www.dcjs.virginia.gov/accred/faqs.cfm (last visited June 11, 2013)
(noting that an advantage to accreditation is that it serves as the “best measure of an agency’s compliance with
1 law dards,” but not stating that accreditation is required); Telephone Interview by
Mark Pickett with Sam Hoffman, Standards, Policy, & Homeland Sec. Manager, Va. Dep’t of Criminal Justice
Servs. (May 9, 2013) (stating that there are 378 law enforcement agencies in Virginia).
5 Va. LAW ENFORCEMENT PROF’L STANDARDS COMM’N, PROCESS AND PROCEDURES 6-7 (2011), available at
df.

http://www.dejs.virginia.go’ dd (0912-V LEPSC ProcessProced
26 The Commission, CALEA, hittp://www.calea.org/content/commission (last visited Mar. 29, 2013) (noting that
the C ission was established by the ional Association of Chiefs of Police, National Organization of

Black Law Enforcement Executives, National Sheriffs’ Association, and Police Executive Research Forum).

27 CALEA Client Database, CALEA, http://www.calea.org/content/calea-client-database (last visited Mar. 1,
2013) (using second search function and designating “US” and “VA” as search criteria to determine the number of
agencies that have earned or are in the process of earning accreditation from CALEA’s Law Enforcement
Accreditation Program).

°° Steps in the Accreditation Process, CALEA, http://www.calea.org/content/steps-accreditation-process (last
visited Aug. 1, 2013).

“Id.

5° COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, INC., STANDARDS FOR LAW ENFORCEMENT
AGENCIES: THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY ACCREDITATION ProcraM, at v (4th ed.
2001) [hereinafter CALEA STANDARDS].

See Va. CODE ANN. § 15.2-1707 (2013).

29

members, including representatives from law enforcement agencies, the judiciary,
Commonwealth’s Attorneys, and the Indigent Defense Commission. * Sixteen members are
appointed by the Governor to represent “the broad categories of state and local governments,
criminal justice systems, and law-enforcement agencies.”

b. Law Enforcement Discipline by Individual A gencies

Individual Virginia law enforcement agencies may also develop their own policies for
investigating and disciplining officers who engage in misconduct. However, these disciplinary
rules must comply with Virginia’s Law-Enforcement Officers Procedural Guarantee Act.** The
Act provides law enforcement officers with the right to notice of the nature of the misconduct
investigation.** A disciplined officer is also entitled to a hearing in which s/he has the right to be
represented by counsel and “present evidence, examine and cross-examine witnesses.”*°

B. Laws and Procedures Governing Eyewitness Identifications
1. Federal Constitutional Law

Pretrial eyewitness identification procedures conducted by law enforcement officers, such as
those taking place during lineups, must comport with the constitutional guarantee of due
process.” In Neil v. Biggers, the U.S. Supreme Court held that a due process violation occurs
and suppression of an out-of-court pretrial identification is required when (1) the identification
procedure employed by law enforcement was unnecessarily suggestive; and (2) considering the
totality of the circumstances, the suggestive procedure gave rise to a substantial likelihood of
irreparable misidentification.**

If a court finds that a pretrial identification procedure was unnecessarily suggestive, courts
consider the following factors in determining whether there was a substantial likelihood of
irreparable misidentification: (1) the opportunity of the eyewitness to view the criminal at the
time of the crime; (2) the eyewitness’s degree of attention; (3) the accuracy of the eyewitness’s
prior description of the criminal; (4) the level of certainty demonstrated by the eyewitness at the
confrontation; and (5) the length of time between the crime and the confrontation.

2. Virginia Law
The Supreme Court of Virginia has adopted the Biggers standard for determining the

admissibility of an eyewitness identification.“” The Court has further held that the burden is on
the defendant to prove that the identification was unreliable. *!

32 Va. CODE ANN. § 9.1-108(A) (2013).
Id.

% See Va. CODE ANN. §§ 9.1-500-9.1-507 (2013).

Va. Cope § 9.1-501-9.1-502 (2013).

58 Va. Cope § 9.1-504(A) (2013).

37 See Neil v. Biggers, 409 U.S. 188, 196-99 (1972).

38 Biggers, 409 U.S. at 196-99.

%° Id. at 199-200.

40 Winston v. Commonwealth, 604 S.E.2d 21, 37-38 (Va. 2004).

30

In addition, Virginia statutory law requires “(t]he Department of State Police and each local
police department and sheriff's office to establish a written policy and procedure for conducting
in-person and photographic lineups.” As of 2011, 93% of Virginia’s law enforcement
agencies reported that they had adopted written eyewitness identification policies as required by
the statute."® The Virginia General Assembly also has directed DCJS to “[e]stablish training
standards and publish a model policy for law-enforcement personnel involved in criminal
investigations that embody current best practices for conducting photographic and live
lineups.’

C. Laws and Procedures Governing Custodial Interrogations and Confessions

Custodial interrogations are governed by the Fifth and Sixth Amendments to the United States
Constitution. In Miranda v. Arizona, the U.S. Supreme Court held that the Fifth Amendment
protection from self-incrimination requires law enforcement officers to inform a suspect of
his/her right to remain silent and right to an attorney prior to a custodial interrogation.“° Courts
must consider the totality of the circumstances to determine whether a suspect is “in custody,”
but “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.”4” “Interrogation” is defined as
“express questioning” as well as “any words or actions on the part of the police ... that the
police should know are reasonably likely to elicit an incriminating response.” ® A suspect ma
waive his/her Miranda rights, provided that waiver is knowingly and intelligently made.
However, if an officer interrogates a suspect after that suspect effectively invokes his/her rights,
or if the suspect is not informed of his/her rights, any statements made during the interrogation
may be suppressed.*° A related Sixth Amendment protection provides that once a defendant has
been formally charged with a crime by way of indictment, arraignment, or the like, law
enforcement officers and their agents, including informants, may not “deliberately elicit”
incriminating information from that defendant regarding the charged crime.*!

)

In addition, the constitutional guarantee of due process requires that, to be admissible, a
defendant’s confession must be voluntary.” The court must consider the totality of the
circumstances to determine whether the defendant’s statements “were the product of his free and

‘| Id. (citing United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir.1996)).
“2 Va. CODE ANN. § 19.2-390.02 (2013).
Va. DEP’T OF CRIMINAL JUSTICE SERVS., REPORT ON THE LAW ENFORCEMENT LINEUP POLICY SURVEY AND
REVIEW 4 (2012), available at http://www.dcjs.virginia.gov/research/documents/12LawEnforceLineup.pdf.

Va. CODE ANN. § 9.1-102(54) (2013). The model policy is discussed further under Protcol #1, below.
‘5 See United States v. Gouveia, 467 U.S. 180, 187-88 (1984); Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
‘6 Miranda, 384 U.S. at 478-79.
“7  Califomia v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
‘8 Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
49 Miranda, 384 U.S. at 479.
Id. at 478-79. But see Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (“[A] suspect who has received
and understood the Miranda wamings, and has not invoked his Miranda rights, waives the right to remain silent by
making an uncoerced statement to the police.”).

Kuhlmann v. Wilson, 477 U.S. 436, 457-58 (1986).
52 Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602
(1961)).

31

rational choice.”*? However, “[c]oercive police activity is a necessary predicate to finding that a
confession is not ‘voluntary’ within the meaning of the Due Process Clause.” The court will
consider such factors as the length and location of the interrogation, the number of law
enforcement officers in attendance, the presence or absence of legal counsel, and whether the
confession was written by the defendant when determining whether law enforcement used
coercive tactics.

Virginia statutory and case law does not appear to impose any additional limitations upon
custodial interrogations.

3 Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968).
Colorado v. Connelly, 479 U.S. 157, 167 (1986).
See id. at 163-64 (discussing and providing examples of “the crucial element of police overreaching”).

32

Il. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team's
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
A Team’s rec di for reform.

A. Protocol #1

Law enforcement agencies should adopt guidelines for conducting lineups and
photospreads in a manner that maximizes their likely accuracy. Every set of
guidelines should address at least the subjects, and should incorporate at least the
social scientific teachings and best practices, set forth in the American Bar
Association Best Practices for Promoting the Accuracy of Eyewitness Identification
Procedures (ABA Best Practices) (which has been reproduced below, in relevant part
and with slight modifications).

The U.S. Supreme Court has recognized that “the influence of improper suggestion upon
identifying witnesses probably accounts for more miscarriages of justice than any other single
factor—perhaps it is responsible for more such errors than all other factors combined.”
Furthermore, “a major factor contributing to the high incidence of miscarriage of justice from
mistaken identification has been the degree of suggestion inherent in the manner in which the
prosecution presents the suspect to witnesses for pretrial identification.”°’ The growing number
of DNA exonerations has confirmed that there is a significant risk that an innocent person will be
convicted because of an eyewitness misidentification. According to the Innocence Project,
eyewitness misidentification has played “a role in nearly 75% of convictions overtumed through
DNA testing.”°*

Virginia is no exception to this problem. Between 1989 and 2013, at least eighteen people in
Virginia whose convictions were based largely on eyewitness misidentifications have been
exonerated of serious violent felonies following DNA testing or the discovery of new evidence. °°

5° United States v. Wade, 388 U.S. 218, 229 (1967) (quoting PATRICK M. WALL, EYE-WITNESS IDENTIFICATION IN
CRIMINAL CASES 26 (1965)).

7 Td., at 228.
58 Understanding the Causes: Eyewitness Misidentification, INNOCENCE PROJECT,
http://www.i ject.org/ i ‘Misidentification.php (last visited Aug. 1, 2013).

5° The exonerees are Marvin Anderson, "Bennett Barbour, Victor Bumette, Jeffrey Cox, Calvin Wayne

Cunningham, Willie Davidson, Garry Diamond, Russell Leroy Gray, Thomas Haynesworth, Edward Honaker, Troy
Hopkins, Julius Ruffin, Walter Snyder, Teddy Thompson, Phillip Leon Thurman, John Tingle, Jr., Troy Webb, and

Arthur Lee Whitfield. Marvin Anderson, NAT'L REGISTRY OF  EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=2995 {last visited Feb. 11, 2013);
Bennett Barbour, NAT’L REGISTRY EXONERATIONS,
http://www.law.umich.edu/special/ ition/Pages/ detail .aspx?caseid=3929 as visited Feb. 11, 2013);
Victor Burnette, NAT'L REGISTRY EXONERATIONS,
http://www.law.umich.edu/special/ ition/Pages/casedetail aspx ?caseid=3072 (hs visited Feb. 11, 2013);
Jeffrey Cox, NAT'L REGISTRY EXONERATIONS,
http://www law.umich.edu/speci le ition/Pages/ detail aspx ?caseid=3128 thst visited Feb. 11, 2013);
Calvin Wayne Cunningham, NAT'L REGISTRY EXONERATIONS,
http://www.law.umich.edu/special/ ition/Pages/ detail .aspx?caseid=3143 (last. visited Feb. 11, 2013);

33

The total number of wrongful convictions may be significantly higher. In 2005, Virginia
Governor Mark Warner ordered DNA testing of a cache of newly discovered forensic files taken
from Virginia criminal cases in the 1970s and 1980s.°° A 2012 examination by the Urban
Institute of these newly discovered files found that of the 250 convicted offenders for which
DNA testing produced a probative outcome, “the convicted offender was eliminated as the
source of DNA evidence,” in fifty-six of them, “and for 38 convictions that elimination
supported exoneration.”® It is not known how many of these convictions were the result of
eyewitness testimony, but given the frequency of wrongful convictions based on this type of
evidence, it is likely that at least some were the result of misidentifications.

Marvin Anderson, for example, served fifteen years in prison and four years on parole for a 1982
rape in Ashland, Virginia that he did not commit. © The rapist in the case had told the victim, a
white woman, that he had “had a white girl” before.’ Anderson, who had no prior criminal
record, was identified as a suspect by law enforcement based solely on the fact that he was one
of the few black men in the area known to have a white girlfriend.

Willie Davidson, NAT’L REGISTRY EXONERATIONS,
http://www.law.umich.edu/special/ ion/Pag detail aspx?caseid=3153 (last visited Feb. 11, 2013);
Garry Diamond, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4120 (last visited Apr. 17, 2013);
Russell Leroy Gray, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=3434 (last visited Feb. 11, 2013);
Thomas Haynesworth, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3872 (last visited Feb. 11, 2013);
Edward Honaker, NAT’L REGISTRY OF EXONERATIONS,
http://www.]law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=3304 (last visited Feb. 11, 2013); Troy
Hopkins, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3305 (last visited Feb. 11, 2013);
Julius Ruffin, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3599 (last visited Feb. 11, 2013);
Walter Snyder, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3651 (last visited Feb. 11, 2013);
Teddy Thompson, NATL REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3686 (last visited Feb. 11, 2013);
Phillip Leon Thurman, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=3689 (last visited Feb. 11, 2013); John
Tingle, Its NAT’L REGISTRY OF EXONERATIONS,
http: //www.law.umicch.edu/special/exoneration/Pages/casedetail. aspx ?caseid=4113 (last visited Feb. 11, 2013); Troy
Webb, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special ion/Pag detail.aspx?caseid=3728 (last visited Feb. 11, 2013);
Arthur Lee Whitfield, NAT'L REGISTRY OF EXONERATIONS,

http: //www.law.umich.edu/special/exoneration/Pages/casedetail.aspx ?caseid=3738 (last visited Feb. 11, 2013).

Frank Green, Case Raises Question of Effort, RICHMOND TIMES-DISPATCH, Feb. 5, 2012.

JOHN ROMAN ET AL., POST-CONVICTION DNA TESTING AND WRONGFUL CONVICTION 5 (2012), available at

http://www-urban.org/UploadedPD F/412589-Post-Conviction-DNA-Testing- and-Wrongful-Conviction pdf. The

Urban Institute attempted to exclude from this total those cases for which the results of the DNA test did not match

the suspect, but for which a claim of wrongful conviction was not supported “due to the context of the case.” Id. at

vi, 4-6. See also Frank Green, DNA Tests Could Clear More, RICHMOND TIMES-DIsPATCH, June 19, 2012.

82 Frank Green, An Innocent Man Cleared — At Last, RICHMOND Times-DisPaTcH, Aug. 22, 2002, at B1.

x Zinie Chen Sampson, Police Lineup Rules Revamped, DAILY Press (Newport News, Va.), July 6, 2012, at A2.
Id.

at

34

The primary evidence against Anderson at trial was the testimony of the victim, who identified
Anderson in both a photographic and in-person lineup.” The officer who administered both
procedures was aware that Anderson was the suspect,” increasing the likelihood that the officer
inadvertently communicated the suspect’s identity to the witness.’ Moreover, the victim
identified Anderson in a photographic lineup in which all of the photographs, with the exception
of the photograph of Anderson, were black-and-white mug shots. Anderson was also the only
person featured in both the photographic and in-person lineup, clearly identifying him as the
suspect.

In 2001, state-ordered DNA testing excluded Anderson as the rapist, and he received a full
pardon from the Govemor.” While Anderson was in prison, the actual perpetrator, John Otis
Lincoln, remained free and committed an assault on another victim.”! Lincoln had been included
in the same photographic lineup as Anderson, but the victim was unable to identify him.”

Improved eyewitness identification procedures, however, can significantly reduce the risk of
misidentification.”* As discussed in this Protocol, a number of law enforcement policies can help
to avoid suggestive identification procedures.

Statutory Requirements

In 2005, the Virginia General Assembly enacted a statute requiring “[t]he Department of State
Police and each local police department and sheriff's office to establish a written policy and
procedure for conducting in-person and photographic lineups.””® The statute was enacted after a
2005 study, conducted by the Virginia State Crime Commission, found that only 37% of
Virginia’s law enforcement agencies had adopted written eyewitness identification policies.
However, the statute does not require agencies to adopt any particular eyewitness identification
policies, nor does it provide a suspect with a legal remedy if the policy is violated.” In 2011,
93% of Virginia’s law enforcement agencies reported that they had adopted written eyewitness
identification policies as required by statute.”* The substantive components of various agencies’
written policies will be discussed throughout Protocol #1.

® Id.

Id.

See infra notes 91-92 and accompanying text.
Sampson, supra note 63.

Id.

Green, supra note 62.

Frank Green, Eyewitness ID Fallibility Shown: Rape Victim ‘Picked An Innocent Guy’, RICHMOND TIMES-
DISPATCH, Mar. 16, 2003, at Al.

2d.

B

nt Penrod, supra note 4.

These specific best practices are discussed in the subsections to this Protocol.

75 Va. CODE. ANN. § 19.2-390.02 (2005).

7 Va. STATE CRIME COMM’N, MISTAKEN EYEWITNESS IDENTIFICATION 16 (2005), available at
http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b1 7al cf388852570f9006f1 4e476d79218985256ec500553c3b/
$FILE/HD40.pdf (hereinafter CRIME COMM’N REPORT).

See VA. CODE ANN. § 19.2-390.2

7 Va. DEP’T OF CRIMINAL JUSTICE SERVS., REPORT ON THE LAW ENFORCEMENT LINEUP POLICY SURVEY AND
Review 4 (2012), available at http://www.dcjs.virginia.gov/research/documents/12LawEnforceLineup.pdf
(hereinafter DCJS Report). The report was published in 2012 but was completed in 2011. See id. at 1, 3.

35

Department of Criminal Justice Services Model Policy

While Virginia statutory law does not expressly mandate that law enforcement agencies must
adopt any specific eyewitness identification procedures, in 2005 the Virginia General Assembly
directed the Department of Criminal Justice Services (DCJS), a state agency, to develop model
best practices for law enforcement agencies to use in eyewitness identifications.

DCJS last updated its Model Policy on Eyewitness Identification on July 1, 2012 to incorporate
the most recent advancements in social scientific research.°° Leaders from Virginia’s law
enforcement community, the Innocence Project, and University of Virginia School of Law
Professor Brandon Garrett—who has written extensively on the causes of wrongful
convictions—assisted with drafting the policy.®’ The model policy, however, is not binding on
individual law enforcement agencies, and a defendant who is identified by an eyewitness using a
procedure that violates the policy has no legal remedy. Specific provisions of the model policy
are discussed in the subsections to the Protocol.

Accreditation Requirements

The Virginia Law Enforcement Professional Standards Commission (VLEPSC), a state agency
managed by DCJS, is charged with “establish[ing] professional standards and administer[ing] the
accreditation process by which Virginia [law enforcement] agencies can be systematically
measured, evaluated, and updated.”®? As of une 2013, VLEPSC has accredited eighty-seven of
Virginia’ s 378 law enforcement agencies.” However, accreditation is not required by state
law.®

7 Frank Green, Law Officials Frustrated by Pace of Suspect-ID Reforms, RICHMOND TiMES-DispATCH, Nov. 17,

2011. DCJS’s mission “is to provide leadership to improve the criminal justice system in Virginia’s communities
through effective training, partnerships, research, regulation, and support.” About DCJS, Va. DEP’T OF CRIMINAL
JUSTICE SERVS., http://www.dcjs.virginia.gov/about/ (last visited June 12, 2013). The General Assembly officially
empowered DCJS to “[e]stablish training standards and publish a model policy for law-enforcement personnel
involved in criminal investigations that embody current best practices for conducting photographic and live lineups”
in 2012. Va. CoDE ANN. § 9.1-102(54) (2012). This provision became effective April 18, 2012. 2012 Va. Acts, ch.
827.
80 See Va. DEP’T OF CRIMINAL Justice SERVS., MODEL POLICY ON EYEWITNESS IDENTIFICATION (2012),
available at http://www.dcjs.virginia.gov/cple/sampleDirectives/ (hereinafter DCJS MoDEL POLIcy).

81 See id. at 2-3. See also Garrett Helps Overhaul Virginia's Model Policy for Police Line-ups, Eyewitness
Identification, UNIV. OF VA. ScH. oF Law, http://www.law. virginia. edu/html/news/2012_spr/garrett_eyewitness. htm
(last visited June 12, 2013).

* See DCJS MopeL POLICY, supra note 80.

Overview & Benefits, VA. DEP’T OF CRIMINAL JUSTICE SERVS.,
mths ow dejs. virginia. gov/accred/overview. cfm. (last visited June 12, 2013). To obtain accreditation, agencies
tep process i of (1) (2) and (3) on-site assessment.

Law enforcement agencies seeking to maintain accreditation must provide an annual report detailing specified topics
as well as any major developments that may affect accreditation. VA. LAW ENFORCEMENT PROF’L STANDARDS
CoMM’N, PROCESS AND PROCEDURES 6 (2011), available at http://www.dcjs.virginia.gov/accred/documents/0912-
VLEPSCProcessProcedures.pdf.

8 Accredited Agencies, VA. DEP’T CRIMINAL Justice SERVS.,
http://www.dcjs. virginia.gov/accred/agencies.cfm (last visited Mar. 13, 2013); Interview with Sam Hoffman, supra
note 24,

See Frequently Asked Questions, Va. Derp’T OF CRIMINAL JUSTICE  SERVS.,
http://www.dejs. virginia.gov/accred/faqs.cfm (last visited June 11, 2013) (noting that an advantage to accreditation

36

Beginning on January 1, 2014, VLEPSC will require law enforcement agencies seeking
accreditation to adopt a “written directive . . . for conducting photographic lineups and in-person
lineups presented to eyewitnesses” that includes several provisions on the manner in which the
procedure is conducted. The specific requirements of these standards are discussed below.
Prior to 2014, VLEPSC standards only required a written directive of some kind for conducting
eyewitness identifications.°”

In addition, twenty-six law enforcement agencies in Virginia have obtained certification by the
Commission on Accreditation for Law Enforcement Agencies (CALEA), a national, independent
accrediting authority.®* The CALEA standards, however, do not require the certified agencies to
adopt specific guidelines for conducting lineups and photospreads.

Individual Law Enforcement A gencies

The Virginia Assessment Team also submitted surveys to twenty law enforcement agencies
throughout the Commonwealth regarding training, policies, and practices during
identifications.°° Four agencies—the Virginia State Police, Arlington County Police, Danville
Police, and Norfolk Police—responded to the survey and their policies are discussed under
subsections to this Protocol, below.

is that it serves as the “best measure of an agency’s compli: with professional law enfc dards,” but
not stating that accreditation is required).

8 Letter from Gary M. Dillon, Program Manager, Va. Law Enforcement Prof’ Standards Comm’n, to Va. Law
Enforcement Prof] Standards Comm’n Participating Agencies and Assessors (Jan. 15, 2013) (on file with author)
(describing the new standards adopted by V LEPSC).

Va. Law ENFORCEMENT PROF’ L STANDARDS COMM’N, PROGRAM MANUAL 25 (2012), available at
http://www.dcjs.virginia.go’ d th-EditionProg! anual-V6.pdf (noting that this requirement
went into effect in 2006).

See supra note 27 and accompanying text.
8° See CALEA STANDARDS, supra note 30, at 42-43.
5° Surveys were submitted to the following law enforcement agencies and training entities: Arlington County
Police Department; Chesterfield County Police Department; Chesterfield County Police Training Academy;
Danville Police Department; Norfolk Police Department; Northem Virginia Criminal Justice Training Academy;
Piedmont Regional Criminal Justice Training Academy; Prince William County Police Department; Prince William
County Criminal Justice Academy; Richmond Police Department; Richmond Police Training Academy; Roanoke
Police Department; Roanoke Police Department Training Academy; Virginia Beach Police Department; Virginia
Beach Police Department Law Enforcement Training Academy; Virginia Department of Criminal Justice Services
Division of Law Enforcement; Virginia Office of Public Safety; Virginia Sheriffs Institute; Virginia State Police;
Virginia State Police Training Division. A copy of the survey is reproduced in the Appendix to this Report, infra.

37

1. General Guidelines for Administering Lineups and Photospreads

a. The guidelines should require, whenever practicable, that the person who
conducts a lineup or photospread and all others present (except for defense
counsel, when his/her is consti quired) should be
unaware of which of the participants is the suspect.

b. The guidelines should require that eyewitnesses should be instructed that the
perpetrator may or may not be in the lineup; that they should not assume
that the person administering the lineup knows who is the suspect; and that
they need not identify anyone, but, if they do so, they will be expected to
state in their own words how certain they are of any identification they
make.

While a law enforcement officer may strive to avoid communicating the suspect’s identity to the
eyewitness during an identification procedure, s/he may unwittingly do so if s/he is personally
aware which participant is the suspect." As the Virginia State Crime Commission has noted,
“even when utilizing precautions to avoid any advertent body signals or cues to witnesses,
inadvertent body signals or cues to witnesses do occur when the identity of the actual suspect is
known to the individual conducting the identification procedure.” *? Furthermore, when
eyewitnesses are provided with the above cautionary instructions, they are less likely to feel as if
they must identify someone, thereby reducing the likelihood that they will guess the identity of
the suspect. By contrast, when law enforcement officers tell an eyewitness that the suspect is in
the lineup or photospread, the eyewitness may feel pressure to identify someone, even if the
actual perpetrator is not present.

To prevent officers from unwittingly revealing the suspect’s identity, the ABA Best Practices
recommend that the officer who conducts the eyewitness identification procedure should be
unaware of which participant is the suspect. This is known as a “blind” or “double blind” lineup
administration.°> Some states require law enforcement officers to use a double blind method
when conducting a lineup, either by state statute or by attorney general order.”

Virginia recommends but does not mandate that law enforcement agencies use the double blind
method when administering eyewitness identification procedures or that an eyewitness be
instructed in a manner that comports with the ABA Best Practices.°° DCJS’s Model Policy on
Eyewitness Identification states that, in conducting an in-person or photographic lineup, law
enforcement officers should use a “blind administrator [who] must not know which member of
the lineup is the ‘true’ suspect.”°° When a blind administrator is not available the policy
recommends that law enforcement use a “‘blinded’ administrator . . . , namely an individual who
knows the suspect’s identity but is not in a position to see which members of the line-up are

Penrod, supra note 4, at 45.

CRIME COMM’N REPORT, supra note 76, at 10.

DCJS Mopez PoLicy, supra note 80, at 5-6.

Police lineups: Virginia Overhauling Eyewitness-ID Policy, HousTON CuRoN., July 10, 2012, at A14. North
Carolina, Ohio, and Connecticut require a double blind administration under a state statute. Id. New Jersey and
Wisconsin require the procedure according to an attorney general order. Id.

% DCJS MopeL Poticy, supra note 80, at 4-5.

Td. at 9.

38

being viewed by the eyewitness.”°’ To accomplish this, the policy describes a technique known
as the “Folder Shuffle Method” wherein the officer places photographs of the lineup participants
in folders then shuffles them before presenting them to the suspect. As previously noted,
however, DCJS’s policy is not mandatory.

In addition, beginning on January 1, 2014, VLEPSC will require accredited law enforcement
agencies to include “a [written] direction to the investigator conducting the photographic lineup
or in-person lineup to avoid any conduct that might directly or indirectly influence the witness’
decision.”®* While accreditation requirements also reference the DJCS model policy, they do not
expressly require double blind administration." VLEPSC-accredited agencies must also have
adopted eyewitness identification policies that include instructions to be used by the investigator
conducting the photographic lineup or in-person lineup to instruct the witness prior to the
lineup.”""" The standard directs law enforcement agencies to review the DCJS model policy for
“guidance,” but does not require any particular instructions.’°? Moreover, Virginia law does not
require VLEPSC accreditation.'°°

A 2011 report by DCJS found that a majority of law enforcement agencies in Virginia do not use
double blind administration despite the fact that DCJS’s model policy has recommended this
method since 2005.! Virginia law enforcement agencies’ practices and policies concerning
double-blind administration of identifications are described in Table 1, below.

Table 1
Double Blind Identifications & Witness Instruction
x Witness instructed that Written policy on
Double-blind? po eta x9 | perpetrator may or may not be | avoidance of
——E in lineup? influence

Model Policy and Accreditation

DCJS | Yes [= | Yes [=

VLEPSC _| No [No [No [ Yes

DCJS Surveyed Agencies

Practices’ l 13% Yes l 28% Yes l 34% No” l 7
7 Id.
8 Id. at 6.
oon Letter from Gary Dillon, supra note 86.

Id.

Letter from Gary Dillon, supra note 86.
Id.

See supra note 85 and accompanying text.
“ DCJS Report, supra note 78, at 5, 22.

Id. (123 agencies responded to DCJS’s survey).
DCJS Report, supra note 78, at 7. When DCJS issued this report in 2011, its model policy differed from the
version currently in use, which was revised in 2012. Compare DCJS MopEL Poticy, supra note 80, at 7 with DCJS
REPoRT, supra note 78, at 24. However, the model policy in use in 2011 still recommended that witnesses be
instructed “that the offender might or might not be among those in the photo array or live lineup, and therefore, the
witness should not feel compelled to make an identification” and that “the procedure requires the investigator to ask
the witness to state, in his/her own words, how certain he/she is of any identification.” DCJS REPORT, supra note
78, at 24.

39

Double Blind Identifications & Witness Instruction

Double-blind? | Double-blind eae nar tie [neater
pheupossible in lineup? influence
DCJS Surveyed Agencies
Policies!”” 39% Yes 8% Yes = 2
A Survey R :
VSP Yes : Yes*~ =
Arlington No No Yes* Yes
Danville No No Yes* No
Norfolk No No Yes* No

*These agencies do not require an instruction to the witness that s/he should not to assume that the officer
administering the lineup knows the identity of the suspect.'!”

~Virginia State Police officers must “ask the witness to state, in his/her own words, how certain he/she is of any
identification."

2. Foil Selection, Number, and Presentation M ethods

a. The guidelines should require that lineups and photospreads should use a
sufficient number of foils to reasonably reduce the risk of an eyewitness
selecting a suspect by guessing rather than by recognition.

b. The guidelines should require that foils should be chosen for their similarity
to the witness’s description of the perpetrator, without the suspect’s
standing out in any way from the foils and without other factors drawing
undue attention to the suspect.

Foil Number and A ppearance

An adequate number of non-suspect participants—sometimes referred to “foils” or “fillers’—
who resemble the suspect are necessary to ensure that suspect does not stand out and to reduce
the risk that the witness picks the suspect at random. DCJS’s Model Policy on Eyewitness
Identification recommends that officers “[iJnclude a minimum of five fillers . . . per photo
identification procedure and a minimum of four fillers per live [in-person] lineup.”"!” The model
policy also directs officers to “[c]reate a consistent appearance between the suspect and fillers so
that the photos depict individuals who are reasonably similar in age, height, weight and general
appearance, and are of the same sex and race.”!"° But officers are also cautioned to “avoid using

197 Td. (115 agencies’ policies reviewed).

108 Va. DEP’T OF STATE POLICE, GENERAL ORDER OPR 8.13 (2010) (on file with author).

109 ARLINGTON CNTY. POLICE DEP’T, ADMIN. WRITTEN DIRECTIVE 530.06 (2010) (on file with author). The
Arlington County Police Department’s eyewitness identification policy recommends but does not mandate a double
blind procedure, stating that “[uJtilizing an officer or detective unfamiliar with the case or suspect to present the
lineup is acceptable and may remove a layer of suggestiveness, however this is not required.” Id.

Va. DEP’T OF STATE POLICE, GENERAL ORDER OPR 8.13 (2010) (on file with author); ARLINGTON CNTY.
Pouce DEp’T, ADMIN. WRITTEN DIRECTIVE 530.06 (2010) (on file with author); DANVILLE POLICE DEpP’T, GENERAL
OrDER 163 (2011) (on file with author); NORFOLK PoLicE DEpP’T, PHOTOGRAPHIC LINE-UP PROCEDURES AND
PHOTO IDENTIFICATION (on file with author).

Va. Dep’? OF STATE POLICE, GENERAL ORDER OPR 8.13 (2010) (on file with author).
to DCJS MobzL PoLicy, supra note 80, at 10.
Id.

40

fillers who so closely resemble the suspect that a | person familiar with the suspect might find it
difficult to distinguish the suspect from the fillers.”

Although the DCJS model policy is not mandatory, most Virginia law enforcement agencies
appear to have adopted procedures similar to the DCJS model policy with respect to foil number
and selection. Table 2, below, describes Virginia law enforcement agencies policies with respect
to use of foils in identifications.

Table 2
Foils or Fillers
% of Agencies Requiring 5 or More Foils | % of Agencies Requiring Similar Appearance among Foils
100%"? [ 98%”
All agencies ding to A Team Survey: VSP; Arlington; Danville; and Norfolk”

Presentation of Suspect to the Identifying Witness

DCJS’s model policy also recommends that law enforcement agencies administer the lineup
sequentially.!® In the sequential method, the lineup participants “are shown to the . . . witness
one at a time, with an independent decision on each, before the next [participant] is shown,”!!9
DCJS recommends this method because social science research has found that eyewitnesses who
view the suspects simultaneously are more likely to “assume the suspect is there and pick the one
who looks the most like the person who did it,’ even if the actual perpetrator is not in the
lineup.

In 2014, Virginia law enforcement agencies participating in the VLEPSC accreditation program
will be required to develop an eyewitness identification policy that includes “[m]ethod(s) of
sequentially presenting the photographic lineup or in-person lineup.”'”!_ However, it appears that
the standards will not mandate that the law enforcement agency’s policy require a sequential
presentation.!??

Use of the sequential method by Virginia’s law enforcement agencies has increased in recent
years, but a significant number of agencies still use the simultaneous method. The Virginia State
Crime Commission’s 2005 report found that only five out of 259 surveyed law enforcement
agencies—about 1.9%—always use the sequential method when conducting photographic

4 Id.
45 CRIME COMM’N REPORT, supra note 76, at 16-17 (responding agencies used 6 or more foils). The report also
noted that photographic lineups, not in-person lineups, are favored by most Virginia law enforcement agencies. Id.
at 16.
Te DCJS Report, supra note 78, at 7 (describing results of 2011 study).
U7 Va. DEP’T OF STATE POLICE, GENERAL ORDER OPR 8.13 (2010) (on file with author); ARLINGTON CNTY.
PoLicE DEp’T, ADMIN. WRITTEN DIRECTIVE 530.06 (2010) (on file with author); DANVILLE POLICE DEpP’T, GENERAL
OrDER 163 (2011) (on file with author); NORFOLK PoLicE DEpP’T, PHOTOGRAPHIC LINE-UP PROCEDURES AND
PHOTO IDENTIFICATION (on file with author).

8 DCJS Monet Policy, supra note 80, at 5, 12.
49" Td. at 5.
20 Garrett Helps Overhaul Virginia's Model Policy for Police Line-ups, Eyewitness Identification, supra note 81.

in Letter from Gary Dillon, supra note 86
Id.

4l

lineups! Six years later, DCJS’s 2011 report found that 67% of Virginia’s law enforcement
agencies require sequential lineups in their policies.“ Three of the four law enforcement
agencies that submitted survey responses to the Assessment Team use the sequential method,
while the Norfolk Police Department “predominately use[s] [the] simultaneous” method. _

Use of Showups

A showup is an identification procedure in which the eyewitness directly confronts the suspect
alone. Showups clearly circumvent any policy regarding the selection and presentation of foils,
as foils are not used in a showup. The suspect also may be in police custody or in handcuffs at
the showup, suggesting to the eyewitness that s/he is looking at the person who law enforcement
believe to be the “right man.”

Social scientific research has demonstrated “clear evidence that show-ups are more likely to
yield false identifications than are properly constructed lineups” because “they convey to the
eyewitness which person is the suspect.”!”° When showups are conducted while the suspect is in
handcuffs or in a police car, or the witness is not informed that the suspect may or may not be the
real culprit, the witness may feel compelled to make an identification, often under circumstances
in which the witness feels his/her personal safety is threatened.

Other states have acted to limit the extent to which law enforcement officers are permitted to use
showups to obtain an eyewitness identification. The Supreme Court of Wisconsin, for instance,
has held that evidence obtained from showups is unreliable and inadmissible “unless, based on
the totality of the circumstances, the showup was necessary.” !2” Furthermore, “[a] showup will
not be necessary . . . unless the police lacked probable cause to make an arrest or, as a result of
other exigent circumstances, could not have conducted a lineup or photo array.” 128 Some
showups, however, are still permissible under the Wisconsin standard. For instance, if police
stop a person “suspected of committing a crime, but the police do not have the requisite probable
cause to arrest and then to conduct a lineup or photo array, a showup could be considered
necessary.”!”° The Supreme Court of Wisconsin reached this conclusion after a thorough review

3 CRIME COMM’N REPORT, supra note 76, at 17. It is unclear how many agencies used the sequential method in
combination with other methods. Id. However, 17.8% of agencies reported always using the simultaneous method.
See id.
24 DCJS REPORT, supra note 78, at 5. DCJS also surveyed law enforcement agencies on the type of presentation
method used. Id. at 4. Of those agencies responding to the survey, 46% stated that they always use the sequential
method, 24% stated that they use the sequential when possible, and 29% stated that they do not use the sequential
method. Id.
25 Va. DEP’T OF STATE POLICE, GENERAL ORDER OPR 8.13 (2010) (on file with author); ARLINGTON CNTY.
Pouce Dep’T, ADMIN. WRITTEN DIRECTIVE 530.06 (2010) (on file with author); DANVILLE POLICE DEpP’T, GENERAL
ORDER 163 (2011) (on file with author); Norfolk Police Dep’t Survey Response, provided by Captain Ed Ryan,
Norfolk Police Dep’t., to Mark Pickett, at 2 (Feb. 14, 2012) (on file with author).

® Gary L. Wells et al., syowiiness qgentiication Procedures: Recommendations for Lineups and Photospreads,
22 LAW & Hum. BEHAV. 603, 631 (19:
“7 State v. Dubose, 699 N.W.2d 580, 504 (Wis. 2005).
18" Id. at 584-85.
29 Td. at 594 n.11.

42

of recent social scientific research on identification procedures and instances of wrongful
convictions based on unreliable showups. °°

The Supreme Court of New Jersey also recently reviewed its own state’s identification
procedures and held that, due to the heightened risk of misidentification, “showup administrators
should instruct witnesses that the person they are about to view may or may not be the culprit
and that they should not feel compelled to make an identification.”

Virginia law does not place any restrictions on the use of showups. Willie Davidson II, for
instance, was wrongly convicted of a rape in Norfolk based on a showup identification by the
victim.” The victim had been raped in 1980 by a man wearing a stocking over his face who
forced himself into her home. A week later, police officers visited the victim in the hospital
and showed her a photographic lineup that included Davidson, who was a neighborhood
acquaintance of the victim.’ The victim did not identify Davidson in the lineup. After
returning home, however, she contacted the police and told them she wished to see Davidson
again.’ The police brought the victim to the local jail to identify Davidson.’*” Without any
lineup fillers present, an officer pulled a stocking over Davidson’s head, and the victim identified
him as her rapist. ‘°°

Davidson was convicted at trial based on this identification and spent over ten years in prison. '%°
In 2005, however, Virginia ordered testing of newly-discovered DNA evidence, and Davidson
was exonerated.!“° He was subsequently pardoned by Governor Mark Warner. !“!

DCJS’s model policy recommends that law enforcement officers use showups with “only in
exigent circumstances that require the immediate display of a suspect to an eyewitness.” 2 ‘The
policy further advises law enforcement agencies to adopt a number of policies to reduce the
suggestiveness of the showup.'° For instance, “[t]he eyewitness should be transported to a
neutral, non-law enforcement location where the suspect is being detained for the purposes of a
show-up.”!“* The policy further recommends that officers provide cautionary instructions to the
eyewitness, similar to the instructions recommended for lineups.'“°

80 Id. at 591-95.
131 Henderson, 27 A.3d at 903.
‘82 Bill Geroux & Frank Green, One of Two Men Cleared by DNA Identified: Lawyer Gives Name of Norfolk Man
Falsely Convicted of Rape, RICHMOND TIMES-DIsPATCH, Dec. 16, 2005, at Al.
Id.

134 Id.

135 Id.

186 See id.

137 Id.

138 Id.

139 Id.

Id.

tH Jamie Stockwell, Warner Gives Full Pardons To 2 Cleared DNA Tests, WASH. Post, Dec. 23, 2005, at Al.
DCJS Mopez PoLicy, supra note 80, at 7.

M3 See id.

43

In addition, beginning in 2014, all VLEPSC-accredited law enforcement agencies will be
required to develop a “written directive” for conducting showups.\“° The standard does not
mandate any particular procedures, but accredited agencies will be required to include in their
policy such elements as “[c]ircumstances when a show-up may be conducted” and “[I]imitations
to reduce the suggestiveness of a show-up.”!4” The standard also states that agencies should
refer to the DCJS model policy.’

Of the four law enforcement agencies that submitted survey responses to the Assessment Team,
only two have adopted policies related to showups. The Arlington County Police Department’s
eyewitness identification policy warns officers that showups have an “inherent suggestiveness.”
It further notes, however, that showups can be useful for “develop[ing] what is initially an
investigative stop into probable cause when the person who is stopped reasonably matches the
description provided by the victim/witness and is in close proximity in time and distance to the
occurrence of the offense and the offense location.”'“° To improve the reliability of the showup,
the agency requires officers to follow several procedures, including “[c]aution[ing] the witness
that the person(s) he or she is about to look at may or may not be the offender” and “[b]e[ing]
mindful about showing the suspect in handcuffs or surrounded by too many officers.”!°°

Norfolk Police Department policy also warns that showups are “inherently suggestive” and states
that “as a general rule,” showups should be used only “within one hour of the offense.” *! The
Virginia State Police and Danville Police Department do not appear to have enacted any special
procedures related to showups.

“46 Letter from Gary Dillon, supra note 86.
‘47 Td. The full policy requires accredited law enforcement agencies to develop a showup policy that includes the
following elements:

a. Circumstances when a show-up may be conducted;

b. Limitations to reduce the suggestiveness of a show-up;

c. Standard instructions to be used by the investigator conducting the show-up to instruct the witness
prior to the procedure;

d. A direction to the investigator(s) conducting the show-up to avoid any conduct that might directly
or indirectly influence the witness’ decision, and to avoid any comments or actions that suggest
the witness did or did not identify the suspect when the show-up is completed;

e. Disceming the level of confidence in an identification as expressed by the witness; and

f. Documenting the procedure and outcome of the show-up, including noting the witness’ response
and exact words.

148 Id.
ARLINGTON CNTY. POLICE DEpP’T, ADMIN. WRITTEN DIRECTIVE 530.06 (2010) (on file with author).
Id.

151 NORFOLK POLICE DEP’T, “SHOW- Up” & PHYSICAL LINE-UP PROCEDURES (on file with author).

182 DANVILLE POLICE DEP’T, GENERAL ORDER 163 (2011) (on file with author); VA. DEP’T OF STATE POLICE,
GENERAL ORDER OPR 8.13 (2010) (on file with author).

44

3. Recording Procedures

a. The guidelines should require that, whenever practicable, the police should
videotape or digitally video record lineup procedures, including the
witness’s id and any made to the witness by
the police.

b. The guidelines should require that, absent videotaping or digital video
recording, a photograph should be taken of each lineup and a detailed
record made describing with specificity how the entire procedure (from start
to finish) was administered, also noting the appearance of the foils and of the
suspect and the identities of all persons present.

c. The guidelines should require that, regardless of the fashion in which a
lineup is memorialized, and for all other identification procedures, including
photospreads, the police shall, immediately after completing the
identification procedure and in a non-suggestive manner, request witnesses
to indicate their level of confidence in any identification and ensure that the
response is accurately documented.

When law enforcement officers video-record an eyewitness identification procedure, it allows
the jury or judge to more easily assess the manner in which the procedure was administered and
the level of confidence in the eyewitness’s identification.? Similarly, requiring officers to
request and document the eyewitness’s level of confidence ensures that a complete,
contemporaneous statement of belief is preserved for the factfinder. !**

DCJS’s Model Policy on Eyewitness Identification states that officers should keep a detailed
record of the lineup procedure.'®° When a photographic lineup is used, the photographs should
be preserved in the record. The policy also advises that “[fJor live lineups, a group photo
should be taken of all persons in the lineup together to illustrate size differences among the
lineup participants.”"” The model policy further recommends that officers request and
document a confidence statement from the eyewitness in his/her own words.'*° Agencies are
“encouraged to video record” the lineup or showup procedure, including the confidence
statement of the eyewitness. °° Furthermore, beginning in 2014, VLEPSC accreditation
standards will require agencies to develop a written policy for “[d]ocumenting the procedure and
outcome of the photographic lineup or in-person lineup, including noting the witness’ response
and exact words”!

DCJS’s 2011 report, however, found that only 69% of the law enforcement agency policies it
reviewed require documented lineup results.’ Moreover, only 10% of responding agencies’
policies indicated a preference for electronically recording the procedure.

Wells et al., supra note 126, at 640.

" Penrod, supra note 4, at 46.

DCJS MopeL Poticy, supra note 80, at 9, 11.
86 Td. at 9.

7 Id. at 11.

88 Id. at 6, 12, 13.

89 Id. at 8, 13, 14.

Letter from Gary Dillon, supra note 86.
DCJS Report, supra note 78, at 7.

Id.

45

Of the law enforcement agencies that submitted a survey response to the Assessment Team, only
the Danville Police Department requires that eyewitness identification procedures be
electronically recorded. The policy states that‘[i]f practical, the lineup administrator shall make
a video record of a live lineup. If a video record is not practical, the lineup administrator shall
document the reasons why, and an audio recording shall be made. If neither a video nor audio
recording is practical, the lineup administrator shall document the reasons why, and the lineup
administrator shall make a written record of the lineup.”'®’ Regardless of the lineup procedure
used, the officer is required to make a detailed record, which includes “the words used by the
eyewitness to identify the suspect.” 4

Virginia State Police policy provides that officers “may use audio or video recording” during a
lineup “if deemed appropriate and practical.”"® The officer is, however, required to make a
written record of the procedure, including the witness’s statement in his/her “own words,” 1%
The Arlington County and Norfolk Police Departments do not require officers to video or audio
record the eyewitness identification procedure.’*” Arlington County requires the officers
“{rjecord [in writing] both identification and non-identification results on the lineup sheet using
the witness’ own words regarding how certain he/she is about the identification.”!°* The Norfolk
Police Department imposes similar requirements.‘

4. Immediate Post-lineup or Photospread Procedures

a. The guidelines should require that police and prosecutors should avoid at
any time giving the witness feedback on whether he or she selected the
“right man”—the person believed by law enforcement to be the culprit.

When a law enforcement officer tells the eyewitness that s/he has chosen the “correct” suspect,
the eyewitness often becomes much more confident in his/her choice.’” While this increased
confidence is not related to the actual accuracy of the identification, and may in fact be evidence
of a false identification, it may be reflected in the eyewitness’s testimony at a trial or hearing as
an indication of accuracy.!”

DCJS’s Model Policy on Eyewitness Identification provides that officers should “[a]void saying
anything to the witness that may influence the witness’ selection.”'” The model policy further
instructs officers to “avoid reporting or confirming to the witness any information regarding the
individual he or she has selected, until the entire process (including obtaining a confidence

DANVILLE POLICE DEP’T, GENERAL ORDER 163 (2011) (on file with author).

Id.

5 Va. DEP’T OF STATE POLICE, GENERAL ORDER OPR 8.13 (2010) (on file with author).
I

Arlington Cnty. Police Dep’t Survey Response, provided by Captain Michelle R. Nuneville, Arlington Cnty.
Police Dept., to Mark Pickett, in June 2012, at 2-3 (on file with author); NORFOLK PoLice Dep’, “SHOW-Up” &
Puy SICAL LINE-UP PROCEDURES (on file with author).

168 ARLINGTON CNTY. POLICE DEP’T, ADMIN. WRITTEN DIRECTIVE 530.06 (2010) (on file with author).

NORFOLK POLICE Dep’T, “SHOW-Up” & Puy SICAL LINE-UP PROCEDURES (on file with author).

170 Wells et al., supra note 126, at 626.

1) See id.

12 DCJS MopEL Pouicy, supra note 80, at 12.

169

46

statement and obtaining required signatures and paperwork) has been completed.”'”* This policy
implies that it would be acceptable for an officer to provide feedback to the witness after the
procedure is completed. Beginning in 2014, VLEPSC accreditation standards will require
accredited agencies to develop a written directive “to the investigator conducting the
photographic lineup or in-person lineup to avoid any conduct that might directly or indirectly
influence the witness’ decision, and to avoid comments or actions that suggest the witness did or
did not identify the suspect when the photographic lineup or in-person lineup is completed.”

DCJS’s 2011 report found that 65% of Virginia law enforcement agencies have enacted a policy
requiring that the administrator “must not influence [the] witness.”!” Of the four law
enforcement agencies that submitted survey responses to the Assessment Team, all but the
Norfolk Police Department have enacted policies prohibiting the officer from providing the
witness with feedback.1”

Conclusion

Virginia DCJS’s Model Policy on Eyewitness Identification substantially comports with the ABA
Best Practices. The model policy, drafted with the assistance of both law enforcement officials
and experts on the causes of eyewitness misidentifications, recommends adherence to several
practices that have been shown to substantially reduce the risk of wrongful conviction.
However, the model policy is not mandatory and as DCJS’s 2011 report revealed, many law
enforcement agencies’ policies do not conform to DCJS standards. While DCJS has found that
law enforcement agencies’ policies have improved in recent years, only 46% of agencies had
enacted policies “substantially similar” to DCJS’s model policy as of 2011.'”” Thus, there is still
a substantial risk that eyewitnesses, in some Virginia jurisdictions, will misidentify a suspect,
leading to the conviction of an innocent person while the perpetrator remains free.

VLEPSC—Virginia’s law enforcement accreditation agency—will require more stringent
eyewitness identification procedures beginning in 2014. These new standards, however, do not
fully comport with the ABA Best Practices. In many cases, the standards merely require the
agency to adopt a policy relating to an aspect of the identification procedure without specifying
what that policy must be. Moreover, VLEPSC accreditation is not mandated by Virginia law.

Accordingly, Virginia is in partial compliance with Protocol #1.
Recommendation

Virginia, through DCJS, has developed sound policies for reducing the risk of eyewitness
misidentifications. However, because these policies are not mandatory, they have not been fully

173 Id.

uA Letter from Gary Dillon, supra note 86.

% DCJS REPorT, supra note 78, at 7.

16 Va. DEP’T OF STATE POLICE, GENERAL ORDER OPR 8.13 (2010) (on file with author); ARLINGTON CNTY.
PoLicE DEp’T, ADMIN. WRITTEN DIRECTIVE 530.06 (2010) (on file with author); DANVILLE POLICE DEp’T, GENERAL
ORDER 163 (2011) (on file with author); Norfolk Police Dep’t Survey Response, supra note 125.

‘77 DCJS Report, supra note 78, at 7. A Virginia State Crime Commission study, conducted in 2010, found that
21% of agencies fully complied with DCJS’s model policy. Id.

47

adopted by many law enforcement agencies. As such, the Assessment Team recommends that
Virginia require law enforcement agencies to adopt the DCJS Model Policy on Eyewitness
Identification .1”8

The Assessment Team notes that smaller Virginia law enforcement agencies have indicated that
they do not have sufficient personnel to perform a double blind eyewitness identification
procedure.!”” However, the “Folder Shuffle Method,” developed by DCJS, allows a law
enforcement officer who is aware of the suspect’s identity to conduct a photographic lineup
without knowing when the witness is viewing the suspect’s photograph.'®° Understanding the
resource limitations faced by some law enforcement agencies in various parts of the
Commonwealth, the Assessment Team recommends that law enforcement agencies use this
method when traditional double blind administration is not possible.

Many agencies have also reported that they have difficulty obtaining photographs of persons
who sufficiently resemble the suspect such that they can be used as foils in photographic
lineups.'®' To address this issue, the Virginia State Crime Commission recommended in 2005
that Virginia statutory law be amended to “designate the Virginia State Police, through their
oversight of the Central Criminal Record Exchange, as a repository for all mug shots and queries
for photographic lineups.”'®? This statutory change appears to have been enacted,’®* but
agencies continue to report a problem finding suitable photographs." Accordingly, Virginia
law enforcement agencies should consider adopting DCJS’s proposed solutions by (1) using
Department of Motor Vehicle license photos; (2) obtaining scanners that allow photographs to be
altered; (3) liaising with other law enforcement agencies in development of lineups, and (4)
updating the Records Management Systems."®

The new mule or law should also include remedies for agencies’ noncompliance with the
identification procedures. '® However, such remedies need not mean an automatic exclusion of
the eyewitness’s identification. Remedies should include that (1) evidence of failure to comply
with required procedures is admissible in support of claims of eyewitness misidentification, if
otherwise admissible; (2) when evidence of compliance or noncompliance with the required
identification procedures has been presented at trial, the court must instruct the jury that it may
consider such evidence in determining the reliability of eyewitness identifications; and (3) failure

18 Tn 2010, the Virginia General Assembly considered legislation that would have required Virginia’s law
enforcement agencies to follow specific eyewitness identification procedures. H.B. 207, 2010 Sess., (Va. 2010),
available at http://leg1.state.va.us/cgi-bin/legp504.exe?111+ful+HB207. The required procedures appear to be
based on the DCJS model policy and comport with many aspects of the ABA Best Practices. Id.
° DCJS Report, supra note 78, at 6.
DCJS Monet PoLicy, supra note 80, at 6.
CRIME COMM’N RzPoRT, supra note 76, at 17.
182 Id. at 19.
183 Va. CODE. ANN. § 19.2-390(D) (2012).
" DCJS Report, supra note 78, at 6.
Id.

186 See, e.g., OHIO REV. CODE ANN. § 2933.83(C) (2013) (describing three remedies for failure to comply with
Ohio’s eyewitness identification statute that do not require automatic exclusion); N.C. GEN. STAT. § 15A-284.52(d)
(2013) (describing three remedies in North Carolina’s eyewitness identification statute that do not require automatic
exclusion). See also H.B. 207, 2010 Sess, (Va. 2010), available at http://legl.state.va.us/cgi-
Din/legp504.exe?111+ful +B 207.

48

to comply with the procedure can be considered by the court in adjudicating motions to suppress
eyewitness identification. !®”

Furthermore, the Team strongly recommends that Virginia law enforcement agencies adopt
policies limiting the extent to and manner by which officers can use showups, similar to those
policies enacted by the Arlington and Norfolk Police Departments described above.'®* Showups
need not be completely prohibited, as law enforcement may need to use the procedure in
situations where, for example, an identification is necessary to obtain probable cause for an arrest
after the crime occurs. In the limited circumstances in which officers are permitted to conduct
showups, they should follow procedures that minimize the suggestiveness of the identification.

Given Virginia’s documented history of misidentifications leading to wrongful convictions,
adherence to the procedures described above are likely to guard against future miscarriages of
justice due to outmoded methods of identification.

B. Protocol #2
Law enforcement officers and prosecutors should receive periodic training on how
he

to impl w idelines for ducting lineups and photospreads, as well as
training on non-suggestive techniques for interviewing witnesses.

The Virginia Department of Criminal Justice Services (DCJS) is tasked with “[e]stablish[ing]
compulsory minimum training eae subsequent to employment as a law-enforcement officer

n (i) permanent positions, and (ii) tempo: or probationary status, and establish[ing] the time
required for completion of such training.” A Virginia law enforcement officer who does not
comply with DCJS training standards “shall forfeit his office.”!°° DCJS is also responsible for
regulating law enforcement training academies. !*

Eyewitness Identification Training

DCJS’s compulsory minimum training standards require law enforcement officers to be trained
to conduct photographic lineups.’ Prospective officers must complete a course in which they
assemble a photographic lineup based on the following factors and criteria:

'87 See infra, Protocol #7, notes 298-313 and accompanying text, on jury instructions on eyewitness identifications.
188 See supra notes 149-152 and accompanying text. See also State v. Henderson, 27 A.3d 872, 903 (N.J. 2011)
(noting that a special master appointed to examine the validity of New Jersey’s eyewitness identification practices
stated that showups are a “‘useful—and necessary—technique when used under appropriate circumstances,” but
that they “carry their ‘own risk of misidentifications,”’ and also that lineups are a preferred identification
rocedure).
89 Va. CODEANN. § 9.1-102(2) (2013).
199 Va. CopE ANN. § 9.1-115(A) (2013). There are some narrow exemptions to the training requirements,
including for “law-enforcement officers serving under permanent appointment on July 1, 1971.” VA. CoDE ANN. §
9. 1-113 (2013).
‘8! Va. CODE ANN. § 9.1-102(4), (13) & (14) (2013).
12 Va. DEp’T OF CRM. Justice SERVS., VIRGINIA CRIMINAL JUSTICE TRAINING REFERENCE MANUAL 151 (2012)
{hereinafter DCJS TRAINING MANUAL].

49

Same sex;

Similar size, build, color, race, ethnic background;

Similar background in photo;

Using the number of photos specified in the reference “Eyewitness Evidence,
a Guide for Law Enforcement” published by the U.S. Department of
Justice,!®? present each photo individually in a sequential manner. Use either
black/white photos for all or color photos for all;

5. Descriptors that victim or witnesses provide. . . [; and]

6. Do not use photos that reflect bias toward one person, i.e. mug shots for some
and not all.'™*

iP wh

In addition, the prospective officer must be instructed on “[p]reparing a group of photographs for
the witness to review and “[p]resenting each photograph individually to the witness.”

These training requirements incorporate some of the best practices for conducting eyewitness
identifications discussed in Protocol #1. Officers must learn to present a sequential photographic
lineup composed of similar participants such that the suspect does not stand out. However, no
other photographic lineup training is required, and there is no required training on in-person
lineups.

In addition, Virginia statutory law also mandates that DCJS establish “training standards . . . for
law-enforcement personnel involved in criminal investigations that embody current. best
practices for conducting photographic and live lineups.”!®° As discussed in Protocol #1, DCJS
has developed a model eyewitness identification policy that incorporates many of the best
practices for conducting lineups. DCJS, however, has not incorporated the model policy into its
minimum training requirements for Virginia law enforcement officers. *”

DCJS has held training sessions for law enforcement officers on the best practices for conducting
lineups.'®* In addition, the University of Virginia School of Law, in collaboration with the
Virginia Association of Chiefs of Police, held a symposium for law enforcement officers in 2013
on the DCJS model policy and other best practices for conducting lineups.'°? However, these
training programs were not mandatory.””

13 The U.S. Department of Justice manual ds that five foils ici in a lineup in addition to the
suspect. Sample Lesson Plan: Identification, NAT’L INST. OF JUSTICE,
https://www.ncjrs.gov/nij/eyewitness/eyewitness_id.html (last visited Jul. 12, 2013).
i DCJS TRAINING MANUAL, supra note 192, at 151.

° Id.
196 Va. CODEANN. § 9.1-102(54) (2013).
‘87 Telephone Interview by Mark Pickett with Donna Michaelis, Pub. Safety Training Manager, Va. Dep’t of
Criminal Justice Servs. (Mar. 27, 2013) (on file with author).

188 Eyewitness Identification Training: Lineup Best Practices for Law Enforcement Officers, Va. DEP’T OF
CRIMINAL JUSTICE SERVS., https://www.dcjs.virginia.gov/tr gi p ificationtraining/ (last
visited Mar. 27, 2013).

‘9 UVA Law Sypmosium Aims to Improve Police » Eyewitness ID Procedures i in Virginia, VA. ASS’N OF CHIEFS OF
POLIcE, http://www.vachiefs.org/index.pk uva_law_sy 1 aims _to_improve_police_eyewitness_
id_procedures_in_virgi (last visited Aug. 1, 2013).

200" Interview with Donna Michaelis, supra note 197.

50

Witness Interview Training

DCJS’s minimum training standards require law enforcement officers to be trained on several
non-suggestive interviewing techniques for use in an investigation. Prospective officers must be
taught to use “open-ended questions” and a “[p]rofessional demeanor” when interviewing a
witness, victim, or complainant.” The course must also instruct that “[c]omplainants and
witnesses should be interviewed separately and early in the case” and that the interview is
conducted “under conditions that provide for no duress, threats, or promises.”

Conclusion

Virginia requires law enforcement officers to be trained to question witnesses in a non-
suggestive manner. In addition, officers must receive some training on conducting photographic
lineups. However, this training does not fully conform to established best practices for
eyewitness identifications, and there is no required training on in-person lineups. Accordingly,
Virginia is in partial compliance with Protocol #2.

Recommendation

Virginia, through DCJS, has already developed a comprehensive model policy on eyewitness
identification procedures that could be used as a framework for training law enforcement
officers. As such, the Assessment Team recommends that DCJS incorporate this model policy
into its minimum training requirements for law enforcement officers.

C. Protocol #3

Law enforcement agencies and prosecutors’ offices should periodically update the
guidelines for conducting lineups and photospreads to incorporate advances in
social scientific research and in the continuing lessons of practical experience.

As discussed in Protocol #1, the Virginia Department of Criminal Justice Services (DCJS) has
developed a Model Policy on Eyewitness Identification that incorporates recent advancements in
social scientific research.“°? DCJS created the model policy in 2005, which was subsequently
revised in 2011 and 2012." Virginia law enforcement officials, representatives from the
Innocence Project, and experts on eyewitness misidentification consulted on the most recent
revision of the policy.” Moreover, DCJS has considered the practical needs of law enforcement
agencies by developing and recommending procedures, such as the “Folder Shuffle Method,”
that allow agencies with limited staff and resources to administer non-suggestive lineups.””°

DCJS TRAINING MANUAL, supra note 191, at 228.
Id.

See supra notes 79-82 and accompanying text.

" See DCJS MODEL POLIcy, supra note 80.

205 See id. See also Garrett Helps Overhaul Virginia's Model Policy for Police Line-ups, Eyewitness
Identification, supra note 81.

208 DCJS MopEL PoLicy, supra note 80, at 8-9.

51

However, the DCJS model policy is not mandatory and, as noted in Protocol #1, many Virginia
law enforcement agencies have enacted eyewitness identification policies that do not conform to
the DCJS policy, even with respect to policies that DCJS has promoted since 2005.2” There is
no other law or policy requiring law enforcement agencies to periodically update their lineup
guidelines.

Conclusion

Virginia has developed an eyewitness identification policy that has been regularly updated and
incorporates advancements in social scientific research. The policy is not mandatory, however,
and has not been adopted by a significant number of law enforcement agencies. Thus, Virginia
is in partial compliance with Protocol #3.

Recommendation

As discussed in Protocol #1, the Assessment Team recommends that Virginia adopt measures to
promote enforcement and adoption of the DCJS eyewitness identification policy, through either
legislation or rulemaking. DCJS should continue its current practice of revising and updating its
policy to reflect any further developments in social scientific research.

D. Protocol #4

Video-record the entirety of custodial interrogations of crime suspects at police
precincts, courthouses, detention centers, or other places where suspects are held for
questioning, or, where video-recording is impractical, audio-record the entirety of
such custodial interrogations.

According to the Innocence Project, “[iJn about 25% of DNA exoneration cases [in the United
States], innocent defendants made incriminating statements, delivered outright confessions or
pled guilty.”*”° Given the risk that an innocent person will confess to a crime, it is imperative for
law enforcement officers to fully video-record a suspect’s interrogation, including any
questioning that precedes the formal confession and the suspect’s waiver of Miranda rights. A
video-recording provides the court, jury, and prosecutor with the best means to determine
whether a confession is credible, including whether law enforcement engaged in any coercive
tactics in obtaining a confession.

False Confessions in Virginia

A number of death penalty and death penalty-eligible cases in Virginia illustrate the risk and
consequences of false confessions by suspects.

207 DCJS Report, supra note 78, at 8.
208 False Confessions, INNOCENCE PROJECT, hitp://www.innocenceproject. False-C.
(last visited Aug. 1, 2013).

php

52

Earl Washington

Earl Washington, who is mildly mentally retarded,”® was interrogated by police for two days
regarding a 1982 rape and murder in Culpeper.””° Washington eventually confessed, but only
after rehearsing his statement with police several times.”!! The only record of the confession was
a typed statement, drafted by the police, that Washington signed but could not read.”
Moreover, several of the details he provided to the police were inconsistent with the facts of the
crime."> For instance, one of the interrogating officers wrote in his notes that Washington said
the victim was black and that he had stabbed her “once or twice.”?"* In fact, the victim was
white and had been stabbed thirty-eight times.7!°

Based largely on this confession, Washington was convicted and sentenced to death.”!° In 1993,
however, DNA testing proved that Washington was innocent of the offense, and he eventually
received a pardon.”!” Washington’s case is discussed in further detail in Chapter Thirteen on
Mental Retardation and Mental Illness.

The Norfolk Four

The 1997 case of the “Norfolk Four” demonstrates that even persons who do not suffer from a
mental illness or mental disability can be susceptible to false confessions when pressured by law
enforcement.”"® Derek Tice, Danial Williams, Joseph J. Dick Jr., and Eric C. Wilson were
convicted of raping and murdering Michelle Bosko in her apartment based largely on their
confessions.” All four men confessed to the crime after police threatened them with the death
penalty and falsely told them that they had failed polygraph tests.”° While law enforcement
officers electronically recorded their final confessions, there was no audio or video record of the
lengthy interrogations that preceded their final statements.””!

The four men were subsequently charged and convicted even though their statements were not
consistent with the basic facts of the crime or with one another’s recounting of the crime during
their respective confessions.” For instance, Williams, the first to confess, told police that he

a8 Washington v. Buraker, 322 F. Supp. 2d 702, 713 (W.D. Va. 2004).
210 Earl Washington, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Earl_Washington.php (last
Visited June 12, 2013).

Id.

212 Brooke A. Masters, Missteps On Road To Injustice; In Va., Innocent Man Was Nearly Executed, WASH. Post,
Dec. 1, 2000, at Al.
213 Earl Washington, supra note 210.
Masters, supra note 212.
215 Id.
ale Washington v. Buraker, 322 F. Supp. 2d 702, 707 (W.D. Va. 2004).
Id.

ae See Frontline: The Confessi (PBS levisi I di Nov. 9, 2010), available at
http://www. pbs.org/wgbh/pages/frontline/the-confessions/.

a0 Tan Urbina, Virginia Governor Sets Free 3 Sailors Convicted in Rape and Murder, N.Y. TiMEs, Aug. 7, 2009, at

AQ.
22 Alan Berlow, What Happened in Norfolk?, N.Y. Times MAGAZINE, Aug. 19, 2007, at 36.
a2: Tice v. Johnson, No. 3:08CV69, 2009 WL 2947380, at *3-6 (E.D.Va. Sept. 14, 2009).

53

had beaten Bosko to death with a shoe, when in fact she had been stabbed.?”* Moreover, DNA
evidence taken from the crime scene did not match any of the four men.“ To explain the DNA
evidence, police and prosecutors theorized that the men acted in concert with others, although the
evidence did not indicate multiple perpetrators, and Williams stated in his initial confession that
he acted alone.”° In subsequent police confessions, other men were implicated as well, but their
DNA also did not match evidence collected at the crime scene.”

Several months after the crime, a woman reported to the Norfolk Police that she had received a
threatening letter from Omar Ballard, who was already in prison for rape, in which he admitted
to killing Bosko.”” A subsequent DNA test matched Ballard to samples taken from the crime
scene.* Ballard confessed shortly after police confronted him with the DNA evidence, and his
confession included accurate details about the crime scene. He also told police he acted alone.””°
Ina later statement to police, however, Ballard implicated the four men shortly before accepting
a plea agreement.”

Despite the contradictory confessions, lack of DNA evidence, strong evidence against Ballard,
and changing police theories, the prosecution of the four men continued." Williams and Dick
pleaded guilty.”%* Wilson went to trial and was found guilty of rape.** Tice was convicted of
rape and murder at trial.”"*

Wilson completed his prison sentence and was released in 2005.” After the four men were
convicted, however, their lawyers continued to pursue their exonerations. 236 By 2008, a group
consisting of “30 former agents of the F.B.I.. . . [;] four former Virginia attorneys general; 13
jurors from two of the [] trials; 12 former state and federal judges and prosecutors; and a past
president of the Virginia Bar Association” called for the four men to be pardoned.” The
following year, the Governor granted “conditional pardons” to the three men who were still in
prison, citing “grave doubts” regarding their guilt.“® The same year, Tice was granted a new
trial by a federal court based on a finding that his trial counsel had been ineffective for failing to
move to suppress his confession.”*° The Norfolk Commonwealth’s Attorney chose not to retry

Berlow, supra note 221.
24 Tice, 2009 WL 2947380, at *1-2.
25° See id. at *1-4,

Id.; Berlow, supra note 221.
9 Tice, 2009 WL 2947380, at *3.
231 See id. at *3-6.
282 1d. at *3.
Berlow, supra note 221.
4 Tice, 2009 WL 2947380, at *3.
Urbina, supra note 220.
See id.
237 Id.
Id. Under the terms of the conditional pardon, the men were released, but their convictions were not reversed.
Id. As aresult, they are required to register as sex offenders. Id.
9 Tice, 2009 WL 2947380, at *23.

54

Tice.”*° In a 2010 television interview, Ballard stated that he acted alone in the murder, and that
he implicated the other men to receive a favorable sentence. “"!

Other Virginia capital cases demonstrate that recording of all law enforcement interviews,
particularly with cooperating witnesses in serious felony cases, may prevent subsequent litigation
over whether such informants testified falsely or received a benefit in exchange for their
testimony. 20

Virginia Laws and Policies on the Recording of Interrogations

Virginia law does not require law enforcement agencies to record interrogations or confessions.
Moreover, Virginia’s Department of Criminal Justice Services (DCJS), which developed a
comprehensive model policy on eyewitness identification procedures discussed in Protocol #1,
has not adopted a model policy on custodial interrogation recording.“ Virginia’s non-
mandatory accreditation agency, the Virginia Law Enforcement Professional Standards
Commission, also does not require accredited agencies to develop polices on recording custodial
interrogations.”

It appears that only some individual law enforcement agencies in Virginia require officers to
electronically record interrogations. In 2009, the Northwestern University School of Law Center
on Wrongful Convictions found that nine Virginia law enforcement agencies record a majority of
their interrogations: the Alexandria Police Department, the Chesterfield County Police
Department, the Clarke County Sheriff, the Fairfax Police Department, the Loudoun County
Sheriff, the Norfolk Police Department, the Richmond Police Department, the Stafford County
Sheriff, and the Virginia Beach Police Department.”

In addition, three of the four Virginia law enforcement agencies that submitted survey responses
to the Assessment Team have enacted policies on the recording of custodial interrogations.
Virginia State Police policy requires officers to video or audio-record custodial interrogations in
several types of serious felony cases, including homicides.“° Noncustodial interrogations—in
which the suspect has not been arrested—need not be recorded.”” While the policy states that
the “entirety” of the interrogation must be recorded, officers are not required to record the
suspect’s Miranda waiver.“ The policy also includes exceptions to the recording requirement

240 Editorial, A Partial Step toward Justice, VIRGINIAN-PILOT & LEDGER STAR (Norfolk, Va.), Aug. 5, 2011, at 6.
241 Frontline: The Confessions, supra note 218.
242 See, eg., Wolfe v. Clarke, 819 F. Supp. 2d 538, 555-57 (E.D.Va. 2011) (reversing Justin Wolfe's capital
conviction and death sentence); Hash v. Johnson, 845 F. Supp. 2d 711, 750 (W.D.Va. 2012) (reversing Michael
Hash's capital conviction and life sentence).
* See Model Policies for Virginia Law Enforcement Agencies, DEP’T OF CRIMINAL JUSTICE SERVS.,
http://www.dcjs.virginia.gov/cple/sampleD irectives/index.cfm (last visited Mar. 22, 2013) (not listing a model
policy related to interrogations or confessions).

Va. LAW ENFORCEMENT PROF’L STANDARDS COMM’N, supra note 83, at 8.
°45 Departments that Currently Record a Majority of Custodial Interrogations, NORTHWESTERN LAW BLUHM
LEGAL CLINIC, http://www.law.northwestem.edu/cwc/issues/c ‘alseconfessions/PD DEPTLIST.pdf
(last visited Mar. 24, 2013).
oo Dep’T OF STATE POLICE, GENERAL ORDER OPR 8.11 (2009) (on file with author).
an

md

55

due to “equipment failure, lack of suspect cooperation, or for other reasons deemed pertinent to
successful interrogation by the” officer.

The Arlington County Police Department’s custodial interrogation policy states that “[alll
suspect and defendant interviews shall be recorded by CIS detectives on the iRecord system,” a
digital video recording tool.”° The policy does not speci fy whether the entirety of the
interrogation, including any waiver of rights must be recorded.*™' In response to the Assessment
Team’s written survey questions, the department stated that video-recording of the suspect’s
waiver of rights and confession is “encouraged but not mandatory.”

The Norfolk Police Department’s interrogation policy states that “video recording shall be made”
of interrogations in several types of violent felony cases, including murder.” The policy does
not state whether the entirety of the interrogation, including the suspect’s waiver of rights, must
be recorded.” In its response to the Assessment Team’s written survey questions, the
department indicated that while the suspect’s waiver of rights and full confession is not required
to be video recorded, a full recording is typically made absent “exigent circumstances.””””

The Danville Police Department has not adopted any policies relating to the recording of
custodial interrogations, but stated in its written survey response that it video records

interrogations “when possible.”

Expert Testimony on Confessions in Virginia

As the Norfolk Four case demonstrates, jurors are not always able to accurately assess the
veracity of a confession, even when portions of it are recorded. Jurors may have mistaken
beliefs about the likelihood that a person will falsely confess to a crime, or may not understand
what factors contribute to false confessions. For instance, one study of jury-eligible citizens in
the United States found that only 43% of surveyed persons knew that a child is more likely to
confess to a crime than an adult, and that only 54% knew that the “mentally impaired” are more
likely to confess than other persons.”°” In reality, persons under the age of eighteen and persons
with mental retardation represent a disproportionate number of wrongful convictions based on
false confessions.”** In addition, 73% of participants stated that an innocent person would
confess only under “strenuous interrogation pressure” despite documented cases in which
innocent persons have confessed with little pressure.”

249 Id.
250 ARLINGTON CNTY. POLICE DEP’T, CRIMINAL INVESTIGATIONS DIVISION STANDARD OPERATING PROCEDURES
(2011) (on file with author).
See id.
Arlington Cnty. Police Dep’t Survey Response, supra note 167.
NORFOLK POLICE DEp’T, DETECTIVE DIVISION SOP (on file with author).
See id.
° Norfolk Police Dep’t Survey Response, supra note 125.
258 Danville Police Dep’t Survey Response, provided by Captain Dennis L. Haley, Danville Police Dep’t., to Mark
Pickett, at 4 (Feb. 5, 2012) (on file with author).
°57 Danielle E. Chojnacki, Michael D. Cicchini & Lawrence T. White, An Empirical Basis for the Admission of
Expert Testimony on False Confessions, 40 Ariz. ST. LJ. 1, 27, 33 (2008).
Gross, supra note 2, at 60.
59 Chojnacki, supra note 257, at 40.

56

Expert testimony on factors that affect the validity of confessions can assist jurors in
understanding how to determine whether a defendant’s confession was false. The Supreme
Court of Virginia has held that while an expert witness may not “opine on the truth of the
statement at issue. . . an expert may testify to a witness’s or defendant’s mental disorder and the
hypothetical effect of that disorder on a person in the witness’s or defendant’s situation.””° The
court also noted that, as a general matter, “expert testimony is admissible if the area of expertise
to which the expert will testify is not within the range of the common experience of the jury.””"!

However, it appears that Virginia trial courts, in at least some cases, limit expert testimony on
confessions to only those cases in which the defendant suffers from a mental disorder. In
Commonwealth v. Diaz, for instance, the defendant requested funding to hire an expert
psychologist who would have testified about “psychological pressures that can be placed on a
suspect during interrogation.”*© The court denied the motion, stating that

[b]ecause [the defendant] seeks an expert to opine broadly conceming the
reliability of police-rendered confessions in general as a means to attack the
reliability of his confession, and because Diaz has not otherwise alleged a mental
disorder which would allow for expert testimony regarding the hypothetical
effects of such a disorder, Diaz has not met his burden for showing the need for
expert assistance on this issue.”

Conclusion

Virginia does not require law enforcement agencies to electronically record a suspect’s
interrogation and confession, nor has any Virginia agency developed a model policy on
interrogation recording. While some individual law enforcement agencies have implemented
their own policies on the recording of interrogations, others have not. Moreover, some of the
policies reviewed by the Assessment Team require only audio recording of the interrogation or
do not require the entirety of the interrogation to be recorded.

Accordingly, Virginia is in partial compliance with Protocol #4.
Recommendation

Given the documented instances of false confessions and erroneous informant testimony in
Virginia, as well as the resources that may be saved by recording, obviating the need for
litigation on the admissibility of a confession, the Assessment Team recommends that Virginia
adopt a statute requiring all law enforcement agencies to video-record the entirety of an
interview with a suspect or cooperating witness in any potential capital case.

DCJS, which has developed Virginia’s model eyewitness identification policy, could assist with
developing the statute. In addition, Virginia could look to the several other states and

200 Pritchett v. Commonwealth, 557 S.E.2d 205, 208 (Va. 2002).

als Td. (citing Coppola v. Commonwealth, 257 S.E.2d 797, 803 (1979)).

om Commonwealth v. Diaz, No. FE-2011-1791, 2012 WL 7874397 at *1 (Va. Cir. Ct. June 19, 2012).
Id. at *2.

57

jurisdictions that have already implemented interrogation recording statutes, including the
neighboring jurisdictions of Maryland,”™ North Carolina,” and the District of Columbia.”®

Broadly, the statute should require Virginia 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. With respect to interrogations, this requirement should
include that the reading of Miranda rights, the Miranda waiver, all questioning by law
enforcement, and the suspect’s final statemen be recorded. Exceptions to the recording
requirement should be permitted in the case of certain exigent circumstances, such as a sudden
utterance by the suspect, a suspect’s unequivocally expressed and written desire not to be
recorded,”°” and cases in which the recording equipment fails and officers made a good faith
attempt to record the interrogation. These limited exceptions will ensure that the vast majority of
interrogations are recorded while also protecting public safety in those cases where an immediate
interrogation is required but recording equipment is not readily available.

In order to promote proper recording of the entirety of the custodial interview, the statute should
also provide defendants with a remedy if law enforcement failed to record the interrogation in
violation of the statute. The remedy need not be total exclusion of all unrecorded statements.
For instance, North Carolina’s interrogation recording statute provides that law enforcement’s
failure to comply with the statute “shall be considered by the court in adjudicating motions to
suppress a statement of the defendant made during or after a custodial interrogation.”"* In
addition, noncompliance with the statute is “admissible in support of claims that the defendant’s
statement was involuntary or is unreliable.””°” The statute also requires the court to instruct the
jury “that it may consider credible evidence of compliance or noncompliance” with the statute in
determining whether the defendant’s confession was “voluntary and reliable.”?”

A model interrogation recording statute, proposed by attorneys Thomas P. Sullivan and Andrew
W. Vail, would allow unrecorded confessions to be admitted into evidence but require a jury
instruction on law enforcement’s failure to comply with the statute.2”! Sullivan and Vail have
extensively studied different jurisdictions’ approach to recording custodial interrogations.” The
authors developed this remedy after consulting with over 600 law enforcement officers on the
issue.

264 Mp. CoDE ANN., CRIM. Proc. § 2-402 (2013).

265 N.C. GEN. STAT. § 15A-211 (2013).

2° D.C. Cove § 5-116.01 (2013).

Law enforcement officers should be trained not to encourage suspects to request an unrecorded interview.

268 N.C. GEN. STAT. § 15A-211(f)(1) (2013).

26° N.C. GEN. STAT. § 15A-211(£)(2) (2013).

29 N.C. GEN. STAT. § 15A-211(£)(3) (2013).

271 Thomas P. Sullivan & Andrew W. Vail, The Consequences of Law Enforcement Officials’ Failure to Record

Custodial Interrogations as Required by Law, 99 J. Crim. L. & CRIMINOLOGY 215, 221 (2009).

Id. at 221.

273 Td. at 220 n.24. The proposed Sullivan and Vail instruction reads as follows:
The law of this state required that the interview of the defendant by law enforcement officers
which took place on [insert date] at [insert place] was to be electronically recorded, from
beginning to end. The purpose of this requirement is to ensure that you jurors will have before
you a complete, unaltered, and precise record of the circumstances under which the interview was
conducted, and what was said and done by each of the persons present.

58

Adopting a remedy for failure to record along the lines of either the North Carolina or Sullivan
and Vail model would provide a stronger incentive for officers to comply with the law, without
risking automatic exclusion of any unrecorded custodial interrogation.

The Assessment Team further recommends that Virginia trial courts apply existing Virginia case
law to permit expert witnesses to testify about factors affecting the validity of a confession,
although the expert should not be permitted to opine on the ultimate question of whether the
confession was truthful. Such testimony should not be limited to only those cases in which the
defendant has mental retardation or suffers from a mental illness.

E. Protocol #5

and

Ensure adequate funding to ensure proper di
updating policies and procedures relating to identifications and interrogations.

As discussed in Protocol #1, the Commonwealth of Virginia has, through the Department of
Criminal Justice Services (DCJS), developed and updated a comprehensive model eyewitness
identification policy.” While DCJS has also developed policies for several other law
enforcement functions,” it is unclear whether it has the statutory authority to develop a policy
for recording custodial interrogations, as many of DCJS’s model policies were created in
response to a specific statutory mandate.” However, DCJS appears to be the agency best-
equipped to develop and update a model custodial interrogation policy.

It is also unclear if Virginia’s individual law enforcement agencies have the funding necessary to
implement all of the best practices for conducting eyewitness identifications and interrogations.
As discussed in Protocol #1, many law enforcement agencies have not adopted DCJS’s model

In this case, the interviewing law enforcement agents failed to comply with that law. They did not
make an electronic recording of the interview of the defendant. No justification for their failure to
do so has been presented to the court. Instead of an el ding, you have been d
with testimony as to what took place, based upon the recollections of law enforcement personnel
[and the defendant].
Accordingly, I must give you the following special instructions about your consideration of the
evidence conceming that interview.
Because the interview was not electronically recorded as required by our law, you have not been
provided the most reliable evidence as to what was said and done by the participants. Y ou cannot
hear the exact words used by the participants, or the tone or inflection of their voices.
Accordingly, as you go about determining what occurred during the interview, you should give
special attention to whether you are satisfied that what was said and done has been accurately
reported by the participants, includi as to attributed by law enforcement
witnesses to the defendant.
Id. at 226.
* See supra notes 79-82 and accompanying text.
2 See Model Policies for Virginia Law Enforcement Agencies, DEP’T OF CRIMINAL JUSTICE SERVS.,
http://www.dcjs.virginia.gov/cple/sampleD irectives/index.cfm (last visited June 22, 2013) (not listing a model
policy related to interrogations or confessions).
’ See, eg. VA. CODE ANN. § 9.1-102(54) (2013) (requiring DCJS to develop a policy on eyewitness
identification procedures).

59

eyewitness identification policy?” and it appears that insufficient funding to administer the DCJS
policy is of concern to some law enforcement agencies in the Commonwealth.””

Conclusion

Virginia has established a state agency——DCJS—tasked with developing model policies for
Virginia’s law enforcement agencies on identifications; however, it is not clear whether DCJS is
statutorily authorized to develop an interrogation recording policy. It is also unclear whether
Virginia’s individual law enforcement agencies currently have the necessary funding to
implement improvements to their eyewitness identification and interrogation polices. Thus, the
Assessment Team was unable to determine whether Virginia is in compliance with Protocol #5.

Recommendation

Virginia should ensure that individual law enforcement agencies have the funding necessary to
implement the reforms to eyewitness identification and interrogation procedures discussed in this
Chapter. The Team notes that many of these reforms—such as double blind administration of
identifications and even recording of interrogations in the age of widespread of availability of
digital recording devices—could be implemented at little cost.

F. Protocol #6

Courts should have the discretion to allow a properly qualified expert to testify both
pretrial and at trial on the factors affecting eyewitness accuracy.

As demonstrated by Virginia’s numerous wrongful convictions in cases based on eyewitness
misidentifications, jurors and trial courts are often unable to assess the accuracy of eyewitness
testimony.’” Jurors and other laypersons may lack the knowledge to understand the complicated
biological and psychological factors that affect memory.” Moreover, research has revealed that
the factors that actually affect the accuracy of an eyewitness’s identification are often at odds
with “common sense” beliefs. For instance, while studies have found that “an eyewitness’
stated confidence is not a good predictor of identification accuracy,””” even the U.S. Supreme
Court has held that “the level of certainty demonstrated by the witness” is a factor to be
considered in determining whether an identification is reliable.

A properly qualified psychologist or other expert could assist jurors and the court in
understanding the complicated factors that influence eyewitness identification. One study found

DCJS Report, supra note 78, at 7.

See supra note 179 and accompanying text.

See supra note 59 and accompanying text.

See Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of

Eyewitness Testimony, 2 Fep. Crs. L. Rev. 1, 5-12 (2006) (describing the many biological, psychological, and
social factors that can influence an eyewitness’s memory).

28! See Richard S. Schmechel, et al., Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability
Evidence, 46 JURIMETRICS J. 177, 178 (2006).

23 Neil v. Biggers, 409 U.S. 188, 199 (1972).

60

that expert testimony on the factors affecting eyewitness accuracy “improved juror knowledge,
sensitized jurors to witnessing and identification conditions, and desensitized them toward
witness confidence without promoting skepticism toward the eyewitness identification.”®*

The Virginia Rules of Evidence permit expert testimony in criminal cases when the issue is
“beyond the knowledge and experience of ordinary persons such that the jury needs expert
opinion in order to comprehend the subject matter.” While the Supreme Court of Virginia has
never ruled on the admissibility of eyewitness identification expert testimony, the Court of
Appeals of Virginia has addressed the issue.

In Rodriguez v. Commonwealth, the defendant attempted to call a social psychologist to testify
“as to unreliability of eyewitness identification[s] and the specific problems within this
identification, not just the general inherent difficulties with regard to eyewitness
identification.” For instance, the expert would have testified that “anything in a lineup or
photo array that makes the suspect stand out as distinctive should be eliminated” and that “no
correlation exists between an eyewitness’s confidence and the accuracy of his identification.””*”
The trial court refused to allow the expert to testify, finding that “most of [the proffered
testimony] is common sense.””°*

On appeal, the Court of Appeals of Virginia was critical of expert testimony on the issue of
eyewitness identifications, stating that “courts have consistently found that this type of testimom
interferes with the jury’s role as fact finder and its duty to weigh the credibility of witnesses.”*°
While the court held that “the decision whether to allow expert testimony conceming an
eyewitness identification is a decision left to the sound discretion of the trial court,” it went on to
explain that “expert testimony on this [eyewitness identification] issue may be appropriate” in
only a limited number of cases,”°°

The Court of Appeals clarified its Rodriguez holding in Currie v. Commonwealth.” In Currie,
the defendant called an expert on eyewitness identification at trial.2°?. The trial court, however,
limited the expert’s testimony to the general issues of “the theory of memory in the field of
psychology (acquisition, retention and retrieval) . . . and the problems in cross-racial
identifications.”*”? Other testimony, including testimony “as to the specific identification in this
case as to its reliability [and] as to its validity,” was forbidden.” The Court of Appeals upheld

2 Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1
PsYCHOL. PUB. PoL’y & L. 817, 841 (1995).

28 Va. Sup. Cr. R. 2:702(a)(ii).

28 Rodriguez v. Commonwealth, 455 S.E.2d 724, 725 (Va. App. 1995) (intemal quotation marks omitted). When
Rodriguez was decided, the Virginia Rules of Evidence articulated a slightly different standard for the admission of
pert testimony than the standard currently in effect. See id. at 726.

288 Id.

289 Yd. at 727.

20 Id. at 727-28.

291 See Currie v. Commonwealth, 515 S.E.2d 335, 337-40 (1999).
22 Yd. at 337.

23 1d. at 338.

294 Id.

61

the trial court’s decision on appeal, holding that testimony on the following issues was properly
excluded as within the experience knowledge of an ordinary juror:

(1) _ the correlation between eyewitness certainty and accuracy;

(2) the effect of viewing time and stress on eyewitness accuracy;

(3) the perpetrator’s display of a weapon and its effect on eyewitness
accuracy;

(4) the effect that participating in preparing a composite sketch of a subject
has on the accuracy of subsequent identifications; and

(5) the concept of transference.”%°

Conclusion

The Court of Appeals of Virginia has held that the decision to admit expert testimony on the
issue of factors affecting the accuracy of eyewitness identifications is within the discretion of the
tial court. However, the court has also held that such testimony is appropriate only under

“narrow circumstances,” and that expert testimony on several factors is inappropriate. Thus,
Virginia is in partial compliance with Protocol #6.

G. Protocol #7

Whenever there has been an identification of the defendant prior to trial, and
identity is a central issue in a case tried before a jury, courts should use a specific
instruction, tailored to the needs of the individual case, explaining the factors to be
considered in gauging lineup accuracy. If, in relevant cases, the court finds a
sufficient risk of misidentification based on cross-racial factors, judges should have
available model jury instructions that inform juries that the cross-racial nature of
the identification may affect the reliability of an eyewitness identification.”

Recent social scientific research demonstrates a number of factors that influence eyewitness
identification accuracy, ranging from the length of time the eyewitness observed the suspect to
the type of identification procedure used by law enforcement.” When jurors are required to
gauge the reliability of an eyewitness identification during deliberations, an instruction from the

285 Id. at 337-40. According to the expert’s proffered testimony, transference occurs “when a witness picks a
person from a line-up or photo spread based on the fact that they have seen the person previously, not because the
person is the suspect at the scene of the crime.” Id. at 339 n.2.
%6 Td. at 338 (intemal quotation marks omitted).
27 The ABA Criminal Justice Section’s Committee on Rules of Criminal Procedure, Evidence, and Police
Practices recommends a model jury instruction on cross-racial identification as follows:
In this case, the identifying witness is of a different race than the defendant. Y ou may consider, if you
think it is appropriate to do so, whether the fact that the defendant is of a different race that the witness
has affected the accuracy of the witness’ original perception or the accuracy of a later identification.
You should consider that in ordinary human experience, some people may have greater difficulty in
accurately identifying members of a different race than they do in identifying members of their own
race.
See ABA, RECOMMENDATION 104D, 2008 Ann. Mtg., 4 available
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_policy_: am0
104d.authcheckdam.pdf.
298 See generally Penrod, supra note 4, at 37. See also State v. Henderson, 27 A.3d 872 (NJ. 2011).

62

court explaining these factors may help to guide their decision and ensure that it is well-
informed. Such an instruction may include an explanation of “system variables,” which are
those that are controlled by the state like those described in Recommendation #1, such as

1. Whether the law enforcement agency complied with written eyewitness
identification procedures adopted pursuant to law;

2. Whether the eyewitness spoke to anyone besides the law enforcement agency
about the identification; and

3. Whether the eyewitness made no choice or chose a different suspect or filler
during an identification procedure.

Jurors may also be instructed on “estimator” variables, which are those beyond the control of the
criminal justice system and may be based on the particular facts of the identification, such as

. The length of time the witness had to observe the event;

The distance between the witness and the perpetrator;

The lighting conditions at the time of the event;

Whether the witness was under the influence of alcohol or drugs;

. The age of the witness;

Whether the perpetrator was wearing a disguise;

. Whether the suspect had different facial features at the time of the
identification;

8. The length of time that elapsed between the crime and the identification;

9. The degree of attention the eyewitness paid to the perpetrator during the
event; and

10. The accuracy of any descriptions of the suspect provided by the eyewitness

before the identification procedure occurred. “?

NO RwN

st

This research also indicates that cross-racial identifications are especially likely to be

unreliable.°°° As described by the ABA,

persons of one racial or ethnic group may have more difficulty distinguishing
among individual faces of another group than among faces of their own group.
An inaccurate identification due to this so-called “own race” effect may result in
higher wrongful conviction rates when defendants are of different races than the
witnesses who identify them.°” Studies show that persons who primarily interact

299 State v. Henderson, 27 A.3d 872, 895, 925 (NJ. 2011).
30 See generally Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV.
934 (1984).
ABA, REPORT TO RECOMMENDATION 104D, 2008 Ann. Mtg., available at

http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_policy_am08
104d.authcheckdam.pdf (citing Elizabeth F. Loftus, James M. Doyle, and Jennifer E. Dysart, Eyewitness Testimony:
Civil and Criminal 103 (4th ed. 2007) (“It is well established that there exists a comparative difficulty in
individual members of a race different from one’s own”.); Roy S. Malpass & Jerome Kravitz, Recognition of Faces
of Own and Other Race, 13 J. PERSONALITY & SOC. PSY CHOL. 330, 333 (1969); Stephanie J. Platz & Harmon
M. Hosch, Cross-R 1/Ethnic Eyewi Identification: A Field Study, 18 J. APPLIED SOC. PSYCHOL. 972,
(1988)).

63

within their own racial group, especially if they are in the majority group, will
better perceive and process the subtlety of facial features of persons within their
own racial group than persons of other racial groups.°”

Whether the perpetrator is of a different race from the victim may be an additional estimator
variable on which the jury may be instructed.

Because “science reveals that memory and eyewitness identification evidence present certain
complicated issues,” it is the “court’s obligation to help jurors evaluate evidence critically and
objectively to ensure a fair trial.”2°°

ury Instructions on Gauging Eyewitness Identification A ccuracy in Virginia

The Supreme Court of Virginia considered the appropriateness of such an instruction in Daniels
v. Commonwealth.™ At trial, the defendant had requested a jury instruction that read as follows:

You have heard testimony of an identification of a person. Identification
testimony is an expression of belief or impression by the witness. You should
consider whether, or to what extent, the witness had the ability and the
opportunity to observe the person at the time of the offense and to make a reliable
identification later. Y ou should also consider the circumstances under which the
witness later made the identification.°°

The trial court refused the instruction, ruling that it was “duplicative” with existing instructions
on the burden of proof, reasonable doubt, and the general credibility of witnesses.°” On appeal,
the Supreme Court of Virginia held that the trial court was within its discretion to refuse the
proffered instruction.*°’ The Court noted that while it has “not adopted a rule . .. which requires
a cautionary instruction on eyewitness identification in every case in which it is requested and
the identification of the defendant is central to the prosecution’s case,” it also has not “opined
that such an instruction would never be appropriate, nor that a court would abuse its discretion
by granting such an instruction.”*

The model jury instructions promulgated by the Supreme Court of Virginia’s Model Instruction
Committee provide only a general instruction on witness credibility. The instruction states
that jurors

3 Id. (citing Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 CORNELL L. REV.
934, 934 (1984); Otto H. Maclin, Racial Categorization of Faces, 7 PSYCHOL. PUB. POL’Y & L. 98 (2001)).

5° Henderson, 27 A.3d at 924.

ot Daniels v. Commonwealth, 657 S.E.2d 84, 86-87 (Va. 2008).

88 Td. at 87.

3° Td. at 85.

37 Td. at 87.

508 Td. at 86.

5 Va. MODEL INSTRUCTION COMMITTEE, VIRGINIA MODEL JURY INSTRUCTIONS—CRIMINAL, Instruction No.
2.500 (2012) (on file with author). These model instructions are discussed further in Chapter Ten on Capital Jury
Instructions.

64

may consider the appearance and manner of the witnesses on the stand, their
intelligence, their opportunity for knowing the truth and for having observed the
things about which they testified, their interest in the outcome of the case, their
bias, and, if any have been shown, their prior inconsistent statements, or whether
they have knowingly testified untruthfully as to any material fact in the case.°!°

The model instruction does not reference any factors to be considered when assessing an
eyewitness’s testimony.

Conclusion

The Supreme Court of Virginia permits, but does not require, a trial court to instruct the jury on
the factors to be considered in gauging the accuracy of an eyewitness identification. As such,
Virginia is in partial compliance with Protocol #7.

Recommendation

The Assessment Team recommends that, when appropriate in an individual case, Virginia courts
instruct jurors on possible factors to consider in gauging the accuracy of an eyewitness
identification, including system and estimator variables like those described above. In
appropriate cases, if the court finds a sufficient risk of misidentification based on cross-racial
factors, the court should also include the cross-racial nature of the identification as a factor for
jurors to consider in determining the accuracy of the identification. The Supreme Court of
Virginia’s Model Jury Instruction Committee should draft a model instruction to assist courts in
this regard.

Several other states have adopted jury instructions on general eyewitness identification
accuracy.” Some jurisdictions also permit jury instructions on the cross-racial nature of an

310 Id.

311 Id.

32 States that use a cautionary instruction as to the reliability of eyewitness identification testimony include
Alabama, see Brooks v. State, 380 So.2d 1012, 1014 (Ala. Crim. App. 1980) (“{a] requested identification
instruction which deals realistically with the shortcomings and trouble spots of the identification process should be
given where the principle has not been covered by the court’s oral charge”), California, see People v. Hall, 616 P.2d
826, 835 (Cal. 1980), overruled on other grounds People v. Newman, 981 P.2d 98, 104 n.6 (Cal. 1999) (refusal to
give a requested instruction “deal[ing] with identification in the context of reasonable doubt” was error),
Connecticut, see State v. Ledbetter, 881 A.2d 290, 318 (Conn. 2005) (requiring a cautionary jury instruction
waming the jury of the risks of misidentification if certain diti are met), Georgia, see Brodes v. State, 614
S.E.2d 766, 769 (Ga. 2005) (“[t]he creation of the pattern jury instruction regarding the assessment of reliability of
eyewitness identification testimony reflects the studied conclusion that judicial guidance to the jury on the topic of
eyewitness identification is warranted”), Kansas, see State v. Warren, 635 P.2d 1236, 1244 (Kan. 1981) (requiring a
cautionary jury instruction waming the jury of the risks of misidentification if certain conditions are met),
Massachusetts, see Commonwealth v. Rodriguez, 391 N.E.2d 889, 893 (Mass. 1979) (“a defendant who fairly raises
the issue of mistaken identification might well be entitled to instructions [as to the possibility of mistaken
identification]”), Michigan, see People v. Storch, 440 N.W.2d 14, 16 n.1 (Mich. Ct. App. 1989) (quoting
approvingly a cautionary jury instruction warning the jury of the risks of misidentification), Minnesota, see State v.
Burch, 170 N.W.2d 543, 553-54 (Minn. 1969) (“where requested by defendant’s counsel, we think the court should
instruct on the factors the jury should consider in evaluating an identification and caution against automatic
acceptance of such evidence”), Montana, see State v. Hart, 625 P.2d 21, 31 (Mont. 1981) (“a cautionary jury

65

identification as a factor to be considered in gauging eyewitness accuracy.*!> The Model Jury
Instruction Committee should review these instructions in drafting its own eyewitness
identification instruction.

instruction waming the jury of the risks of misidentification] may be proper, if not mandatory, in certain cases”),
New Jersey, see State v. Henderson, 27 A.3d 872, 925-26 (NJ. 2011). (requesting the Criminal Practice Committee
and the Committee on Model Criminal Jury Charges to draft proposed revisions to the current charge on eyewitness
identifications and submit them to the state supreme court for its review), North Carolina, see State v. Kinard, 283
S.E.2d 540, 543 (N.C. Ct. App. 1981) (“[i]f the evidence strongly suggests the likelihood of irreparable
misidentification, the identification issue would become a substantial feature of the case, and the trial judge is
required, even in the absence of a request, to properly instruct the jury as to the detailed factors that enter into the
totality of the circumstances relating to identification”), Pennsylvania, see Commonwealth v. Washington, 927 A.2d
586, 603-04 (Pa. 2007) (quoting approvingly a cautionary jury instruction waming the jury of the risks of
misidentification), Utah, see State v. Long, 721 P.2d 483, 492 (Utah 1986) (“trial courts shall give [a cautionary
jury] instruction whenever eyewitness identification is a central issue in a case and such an instruction is requested
by the defense”). See also State v. Smith, No. 48-2009-CF-005719-O (FI. Cir. Ct. Feb. 24, 2011) (order permitting
cautionary jury instruction on gauging eyewitness identification accuracy) (on file with author).

313 See CALJIC No. 2.92 (7th ed. 2003) (California) (including the cross-racial nature of an identification as part of
a “laundry list” of factors to be considered by the jury in determining the believability of the eyewitness); State v.
Long, 721 P.2d 483, 494-95, n.8. (Utah 1986) (instructing that “[i]dentification by a person of a different race may
be less reliable than identification by a person of the same race.”); New Jersey v. Cromedy, 727 A.2d 457, 458-59
(NJ. 1999) (instructing the jury to consider the fact that an identifying witness is not of the same race as the
perpetrator and whether that fact might have had an impact on the accuracy of the witness’ identification); New
Jersey Model Criminal Jury, Charges, 2002 WL 32976451 (Rev. Oct. 1999) (same); Commonwealth v. Hyatt, 647
N.E.2d 1168, 1171 (Mass. 1995) (stating the jury may consider whether an identification of a person by a person of
a different race may be less reliable than an identification of a person of the same race); Commonwealth v. Engram,
686 N.E.2d 1080, 1082 (Mass. App. Ct. 1997) (same).

66

H. Protocol #8
Every law enforcement agency should provide training programs and disciplinary
procedures to ensure that investigative personnel are prepared and accountable for
their performance.

Protocol #9

Ensure that there is adequate opportunity for citizens and investigative personnel to
report misconduct in investigations.

Law Enforcement Discipline Procedures*!*

Virginia statutory law provides that the Criminal Justice Services Board shall decertify a law
enforcement officer who has (1) been convicted of a felony, a “Class 1 misdemeanor involving
moral turpitude, a “misdemeanor sex offense,” or a domestic assault; (2) “failed to comply with
or maintain compliance with mandated training requirements”; or (3) “refused to submit to a
drug screening or has produced a positive result on a drug screening reported to the employing
agency.”*"° A law enforcement officer is entitled to a decertification hearing before the Board,
and his/her certification will be reinstated if s/he can demonstrate good cause for reinstatement
by a preponderance of the evidence.*"®

The disciplinary rules of individual law enforcement agencies must comply with Virginia’s Law-
Enforcement Officers Procedural Guarantee Act.*!” The Act provides law enforcement officers
with the right to notice of the nature of the misconduct investigation.*"* A disciplined officer is
also entitled to a hearing before the agency in which s/he has the Tight to be represented by
counsel and “present evidence, examine and cross-examine witnesses.”

The Assessment Team requested information from seventeen Virginia law enforcement agencies
regarding their procedures on reporting and disciplining officers, who engage in misconduct. The
four agencies that responded—the Virginia State Police,”° the Arlington County Police

34 The previously discussed Norfolk Four case demonstrates the need for officer misconduct to be fully
investigated and disciplined. The lead investigator in the case had been demoted earlier in his career after he was
accused of coercing confessions from juvenile suspects. Editorial, The Norfolk Four, WASH. Post, Nov. 21, 2010,
at A20. While he was disciplined for this behavior, he was nonetheless tasked with leading a murder investigation
in a case that relied almost exclusively on the suspects’ confessions. See Sabrina Tavernise, Officer's Extortion
Conviction Prompts Calls for Full Exoneration of ‘Norfolk Four’, N.Y. Times, Nov. 6, 2010, at All. The
investigator’s misconduct continued after the Norfolk Four investigation as well. In 2011, he was convicted and
sentenced to over twelve years in prison for accepting bribes from criminals in exchange for favorable treatment.
Tim McGlone, Appeals Court Upholds Bribery Conviction of Ex-Norfolk Officer, VA. PILOT & LEDGER-STAR
(Norfolk, Va.), Apr. 4, 2012, at 2.

Va. CODE ANN. § 15.2-1707 (2013).
3° Va. CODE ANN. § 15.2-1708(B)-(C) (2013).
37 See Va. CODE ANN. §§ 9.1-500-9.1-507 (2013).
318 Va. CODEANN. § 9.1-501-9.1-502 (2013).
319 Va. CODE ANN. § 9.1-504(A) (2013).
320 Va. DEP’T OF STATE POLICE, GENERAL ORDER ADM 11.00 12.00, 12.02 (2009) (on file with author).

67

Department,*”! the Danville Police Department,*”” and the Norfolk Police D epartment*“~—have
enacted policies for investigating and disciplining officers who engage in misconduct.

Citizen Protections

Virginia statutory law provides that “[s]tate, local, and other public law-enforcement agencies,
which have ten or more law-enforcement officers” must enact certain policies with respect to
misconduct complaints against law enforcement officers.** These agencies must “ensure, at a
minimum, that . . . [t]he general public has access to the required forms and information
concerning the submission of [written] complaints.”°> The agencies are also required to
“assist[] individuals in filing complaints” and ensure that “[a]dequate records are maintained of
the nature and disposition” of such complaints.*”°

The Virginia State Police requires all department facilities to maintain citizen complaint forms
and a brochure on the complaint process. °”” The Arlington County Police Department requires
all citizen complaints to be documented and investigated, and the complainant must be kept
informed regarding the status of the complaint.°* The Danville’ and Norfolk* Police
Departments have enacted similar policies.

Conclusion

Virginia has established a state agency with the authority to discipline officers who engage in
some types of misconduct. Moreover, Virginia law requires law enforcement agencies to assist
citizens who seek to file a complaint against an officer. The four agencies that responded to the
Assessment Team’s inquiry concerning procedures for investigating and disciplining officer
misconduct report having enacted policies to address these important areas. However, the
Assessment Team was unable to determine whether the other fourteen surveyed agencies
possessed such policies. Accordingly, it appears Virginia is in partial compliance with Protocols
#8 and #9.

ARLINGTON CNTY. POLICE DEP’T, ADMIN. WRITTEN DIRECTIVE 551.02 (2005) (on file with author).

Danville Police Dep’t Survey Response, supra note 256.125

Norfolk Police Dep’t Survey Response, supra note 125.

34 Va. CODE ANN. § 9.1-600(A) (2013).

® Va. CODE ANN. § 9.1-600(B)(1) (2013).

6 Va. CODEANN. § 9.1-600(B)(2)-(3) (2013).

327 Vq. DEP’T OF STATE POLICE, GENERAL ORDER ADM 12.00 (2009) (on file with author).

ARLINGTON CNTY. POLICE DEP’T, ADMIN. WRITTEN DIRECTIVE 551.02 (2005) (on file with author).

Police Frequently Asked Questions, DANVILLE, http://www.danville-va.gov/faq.aspx?T ID =46 (ast visited Aug.

, 2013).
5 Office of Professional Standard, NoRFOLK, http://www.norfolk.gov/index.aspx?nid=378 (last visited Aug. 1,
2013).

68

CHAPTER THREE

COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER TYPES OF
EVIDENCE

INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

DNA testing is a useful law enforcement tool that can help establish and confirm guilt.
Furthermore, some wrongfully-convicted inmates may be able to prove their innocence through
DNA testing and analysis. In 2000, the American Bar Association adopted a resolution urging
federal, state, local, and territorial jurisdictions to ensure that all biological evidence! collected
during a criminal investigation is preserved and made available to defendants and convicted
persons seeking to establish their innocence.” Since then, all fifty states have adopted laws
concerning post-conviction DNA testing, although many of these laws are limited in scope.? In
addition, standards for preserving biological evidence and allowing post-conviction DNA testing
vary widely among jurisdictions.

In response to these varied standards, as well as reports of errors and misconduct in public and
private DNA testing facilities, the ABA adopted the ABA Criminal Justice Standards on DNA
Evidence in 2006.* The standards provide a detailed procedure for procurement, testing, use, and
preservation of and entitlement to biological evidence. When a defendant has been convicted of
a murder, rape, or other serious offense, these standards require that any available biological
material be retained in a manner that will preserve the DNA evidence for as long as the
defendant remains incarcerated. At the post-conviction stage, the standards permit a person
convicted of a serious crime to request testing or retesting of biological evidence, as long as the
person meets certain pleading criteria. Once the testing is complete, the standards entitle the
petitioner to a hearing to determine the available remedies based upon the test results. If the
person is indigent and files for DNA testing, counsel should be appointed.

1

“Biological evidence” is defined as evidence that is
provided by specimens of a biological origin that are available in a forensic investigation. Such
specimens may be found at the scene of a crime or on a person, clothing, or weapon. Some...
come from the crime scene or from an environment through which a victim or suspect has recently
traversed. Other biological evidence comes from specimens obtained directly from the witness or
suspect, such as blood, semen, saliva, vaginal secretions, sweat, epithelial cells, vomitus, feces,
urine, hair, tissue, bones, and microbiological and viral agents.
COMM. ON IDENTIFY ING THE NEEDS OF THE FORENSIC SCI. CMTY. ET AL., NAT’L RESEARCH COUNCIL OF THE NAT’L
ACADS., STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 128 (2009), available at
http://www.ncjrs.gov/pdffiles1 /nij/grants/228091.pdf [hereinafter NAS REPorT 2009].
2 "See ABA, RECOMMENDATION 115, 2000 Ann. Mtg. (adopted July 10-11, 2000), available at
http://www.americanbar.org/content/dam/aba/mi grated/moratorium/policy/2000s/2000_AM_115.authcheckdam.pdf.
5 Post-conviction DNA Testing, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/304.php (last
visited Aug. 19, 2013).
See ABA, ABA STANDARDS FOR CRIMINAL JUSTICE, DNA EVIDENCE 12 (3d ed. 2007) (Standard 16-6.1(a):

(b)), available at
http://www.americanbar.org/co ‘aba/publications/criminal_justice_ 1 evidence.authcheckdam.
pdf.

69

Without the preservation of material evidence it is extremely difficult for a convicted inmate to
prove his/her innocence. Every law enforcement agency should establish written procedures,
made available to all personnel and designed to ensure compliance with best practices for
collecting, preserving, and safeguarding biological evidence.° Agencies should regularly update
their procedures as new or improved techniques and methods are developed. The procedures
should impose professional standards on all state and local officials responsible for handling or
testing biological evidence, and should be enforceable through the agency’s disciplinary
process.

Training should emphasize the risk of unjust legal consequences due to the loss or compromise
of evidence. It also should acquaint law enforcement officers with actual cases where illegal,
unethical, or unprofessional behavior led to the arrest, prosecution, or conviction of an innocent
person.

See ABA, ABA STANDARDS FOR CRIMINAL JUSTICE, URBAN POLICE FUNCTION 1 (2d ed. 1979) (Standard 1-4.3)
(“Police discretion can best be structured and controlled through the process of administrative rule making, by police
agencies.”); id. (Standard 1-5.1) (stating that police should be “made fully accountable” to their supervisors and to
the public for their actions).

8 See id. (Standard 1-5.3(a)) (identifying “[cJurrent methods of review and control of police activities”).

70

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW

Since the reinstatement of the death penalty in, 1975, sixteen Virginia inmates have been
exonerated through post-conviction DNA testing.’ In 2001, the Virginia Legislature adopted
provisions of the Virginia Code to provide mechanisms for inmates to challenge their
convictions by filing post-conviction motions for DNA testing.®

A. Collection and Preservation of DNA Evidence
1. Collection of Evidence

The Department of Forensic Science (DFS) is solely responsible for collecting, preserving, and
testing forensic evidence in criminal investigations.” DFS operates pursuant to its Evidence
Handling and Laboratory Capabilities Guide, which provides detailed instructions relating to the
collection, storage, preservation, and testing of biological evidence.’ DFS is exclusively
responsible for analyzing evidentiary material associated with criminal investigations for all state
and local law enforcement agencies, which include 247 police departments and 124 sheriff
organizations.'' DFS is also responsible for analyzing evidentiary material for all medical
examiners and 130 prosecutorial agencies within the Commonwealth of Virginia.” DFS
maintains four regional laboratories: the Central Laboratory in Richmond, the Eastem
Laboratory in Norfolk, the Westen Laboratory in Roanoke, and the Northern Laboratory in

7 Exonerations by State: Virginia, INNOCENCE PROJECT,

http://www.i php?state=va (last visited Aug. 19, 2013). One of the sixteen inmates
exonerated by DNA testing, Earl Washington, was sentenced to death. Earl Washington, INNOCENCE PROJECT,
http://www. innocenceproject.org/Content/Earl_Washington.php (last visited Aug. 19, 2013). In 2004, then-
Govemor Mark Wamer ordered a random audit of 31 old criminal cases after stores of biological evidence were
discovered in the case files saved by state forensic serologists. Dahlia Lithwick, The Exoneration of Bennett
Barbour, SLATE, Mar. 12, 2012. The testing of those 31 samples led to the exonerations of two convicted rapists,
which led Wamer to order that every sample obtained between 1973 and 1988 be retested. Id. The project was
intended to take 18 months but is now in its eighth year. Id. It appears that the Commonwealth located
approximately 800 samples, of which 214 were in condition to be retested. Id. Initial reports suggested there was
“no pattern of procedural problems at the state’s forensic laboratory.” Michael D. Shear and Maria Glod, Virginia
Review Finds No Pattern of Problems, WASH. Post, Sept. 17, 2005, at B1. More recent coverage of retesting,
however, indicates that among the samples retested, more than 7 percent of inmates appear to have been excluded as
perpetrators of a crime. Id.; see also Exonerations Lead Virginia Governor to Call for Sweeping DNA Review,
Wasu. Post, Dec. 15, 2005, available at http://www.deathpenaltyinfo.org/node/1592 (quoting Peter Neufeld co-
director of the Innocent Project, stating, “This is a 7 percent innocence rate—among people who never even asked
for testing—that should give pause to people who think mistakes in our criminal justice system are flukes.”). Eight
people have been exonerated since then-Govemor Wamer ordered re-testing in 2004. Garry Diamond Exonerated
by Supreme Court of Virginia, MID-ATLANTIC INNOCENCE PROJECT, http://www.exonerate. org/2013/garry-diamond-
exonerated-by-supreme-court-of- virginia/ (last visited Aug. 19, 2013).

Va. CODE ANN. § 19.2-327.1 (2013).

OFFICE OF JUSTICE PROGRAMS, NAT’L INST. or Justice, DNA BACKLOG REDUCTION REPORT TO CONGRESS 102
(2012), available at http://nij.gow/topi - backlogs/dna- backlog-reduction-report-
to. congress-2011.pdf [hereinafter DNA BACKLOG REDUCTION REPORT].

Va. DEP’T. OF FORENSIC SCI, EVIDENCE HANDLING AND LABORATORY CAPABILITIES GUIDE V-18 (2012),
available at http://www.dfs.virginia.gov/services/evidencehandling/EvidenceGuide.pdf [hereinafter EVIDENCE
HANDLING GUIDE].

1 DNA BackLoc REDUCTION REPORT, supra note 9.
Id.

71

Manassas." DFS is accredited by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB)."

2. Preservation Requirements

The Virginia Code requires automatic preservation of biological evidence in capital cases and
requires that such evidence be preserved “until the judgment is executed.”® However, in non-
capital cases, biological evidence is preserved only upon motion of a defendant."® Moreover, in
non-capital cases, there is a presumptive fifteen-year time limit on the preservation of DNA
evidence which, as shown below, can have an impact on capital cases.’”

B. DNA Testing

1. Pretrial DNA Testing

Virginia law provides that upon the request of any defendant or his or her attorney, DFS or the
Division of Consolidated Laboratory Services must provide to the accused the results of any
investigation that is related to a crime of which the person is accused.'* When a person accused
of a crime or his/her attorney desires a scientific investigation, s/he must file a motion certifying
in good faith that a scientific investigation may be relevant to the criminal charge.’ The court
must hear the motion ex parte as soon as practicable and, if satisfied that the motion was
correctly certified, order scientific investigation.”

Notably, Virginia law requires that every person arrested for the commission or attempted
commission of a violent felony must have a DNA sample taken, and that this sample be stored
and maintained by DFS ina DNA data bank.”! If the charge for which the sample was taken is
dismissed or the defendant is acquitted at trial, DFS must destroy the sample and all records
thereof.

Sd.

4 See ASCLD/LAB Accredited Laboratories, AM. Soc’y OF CRIME LAB. Dirs./LAB. ACCREDITATION BD.,
http: //www.ascld-lab.org/accredited-laboratory-index/ (last visited July 18, 2013).

15 Va. CoDE ANN. § 19.2-270.4:1(B) (2013) (“In the case of a person sentenced to death . . . [t]he Department of
Forensic Science shall store, preserve, and retain such evidence until the judgment is executed. If the person
sentenced to death has his sentence reduced, then such evidence shall be transferred from the Department to the
original investigating law-enforcement agency for storage as provided in this section.”).

Id. at § 19.2-270.4:1(A).

Id.
18 Va. CoDEANN. § 9.1-1104 (2013).
Id.

mo: Td.
21 Va. CODE ANN. § 19.2-310.2:1 (2013).
Id.

72

Use of DNA Evidence in Criminal Proceedings

The Virginia Code provides that in criminal proceedings, DNA testing “shall be deemed to be a
reliable scientific technique and the evidence of a DNA profile comparison may be admitted to
prove or disprove the identity of any person.”

Virginia law requires that any party intending to use biological evidence in a criminal proceeding
must notify opposing counsel in writing at least twenty-one days before the proceeding and
“provide or make available copies of the profiles and the report or statement to be introduced.”**
If a party proffers DNA evidence without providing the requisite notice, the court has discretion
to allow the opposing party a continuance or, “under appropriate circumstances,” bar
presentation of the evidence.” If the opposing party intends to object to the use of biological
evidence, s/he must do so in writing at least ten days before the proceeding.”

In 2001, the Virginia legislature amended the Virginia Code to add the requirement that an
attorney must have training i in forensic evidence and DNA analysis to be qualified to represent
defendants in capital cases.

2. Post-Conviction Motions for DNA Testing

Virginia law provides that any person convicted of a felony may apply for a new scientific
investigation of biological evidence if such testing may prove his or her actual innocence.” Prior
to 2013, the law applied only to defendants convicted of felonies; however, effective July 1,

2013, the statute was amended to cover persons who were adjudged delinquent of offenses that
would be felonies if committed by adults.

An individual may seek post-conviction DNA testing by filing a motion at any time after s/he is
placed in custody by the Department of Corrections.” The pleading requirements, legal
standards, and possible dispositions of a petition for post-conviction DNA testing are discussed
in Protocol #2 in the Analysis Section.”

23 Va. CODE ANN. § 19.2-270.5 (2013).
4d.

2 Id.

26 Id.

27 HB. 2580, Ch. 766, 2001 Sess. (Va. 2001) (approved March 26, 2001), available at http://leg1 state. va.us/cgi-
bin/legp504.exe?ses=01 1 &typ=bil&val=hb2580.

28 Va. CODE ANN. § 19.2-327.1 (2013).

29 Id.

Id.

3! See infra Protocol #2, notes 65-92 and accompanying text.

73

Il. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team’s
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
Assessment Team's rec de s for reform.

A. Protocol #1
Preserve all biological evidence for as long as the defendant remains incarcerated.

The proper preservation of biological evidence not only protects the innocent from wrongful
conviction but also serves as an important law enforcement tool for identifying the guilty. In
2001, Virginia enacted a preservation statute to better aid in the apprehension of the guilty and
exoneration of the innocent. These enactments, however, have shortcomings that ultimately
limit the effectiveness of the statute.

Prior to 2001, Virginia law provided that trial courts could “in any criminal case” order the
donation or destruction of any or all exhibits received in evidence during the course of the trial,
and did not include any preservation requirements specific to biological evidence.” In felony
cases, the court could order destruction of exhibits upon notice in the sentencing order or to the
attorney for the Commonwealth and the defendant and his/her attorney of record. Such
destruction could occur if more than one year had expired from exhaustion of appellate remedies
or, in the case of no appeal, more than one year from the time for seeking appellate remedies has
expired.” The Code further provided that the notice requirements did not apply to any case that
concluded prior to July 1, 2005."

In 2001, Virginia codified requirements relating to the storage, preservation, and retention of
biological evidence.” In capital cases, Virginia law provides an automatic right to preservation
of biological evidence and requires that such evidence be preserved “until the judgment is
executed.”*° Virginia’s preservation requirements in non-capital cases, however, are subject to
two critical limitations, both of which may affect the ability of those under a death sentence to
prove wrongful conviction or that the person should not have been subject to the death penalty.

Limits on Evidence Preservation

In non-capital cases, the right to preservation is not automatic. A non-capital defendant
convicted of a felony may file a motion for preservation of biological evidence in which s/he

a Compare H.B. 354, Ch. 536, 1994 Va. Laws (Va. 1994) with S.B. 1366, Ch. 873, 2001 Va. Laws (Va. 2001).
Id.

od.

3 Va. CODE ANN. § 19.2-270.4:1 (2013).

3 Va. CODE ANN. § 19.2-270.4:1(B) (2013) (“In the case of a person sentenced to death . . . [t]he Department of
Forensic Science shall store, preserve, and retain such evidence until the judgment is executed. If the person
sentenced to death has his sentence reduced, then such evidence shall be transferred from the Department to the
original investigating law-enforcement agency for storage as provided in this section.”).

74

specifically identifies the evidence that is to be preserved.*” Once a defendant files such a
motion, the court “shall order” the storage, preservation, and retention of human biological
evidence.*® Because biological evidence is preserved in non-capital cases only if a defendant
takes the affirmative step of filing a preservation motion, biological evidence is often destroyed
shortly after arrest or conviction.” Virginia’s failure to provide for blanket preservation in
criminal cases is an outlier practice among states that have codified preservation requirements. *°

Second, the Virginia preservation statute includes a fifteen-year time limit on the preservation of
DNA evidence in non-capital cases."! Although courts have discretion to extend (or shorten) this
time limit,” the absence of a statutory requirement that DNA evidence be preserved for as long
as the defendant remains incarcerated may lead to the premature destruction of evidence. Failing
to provide for long-term preservation of biological evidence also may result in the destruction of
potentially exculpatory evidence prior to the discovery of advanced technological measures that
could allow testing on previously untestable evidence.

For example, Virginia’s “Old Case Testing Project” has produced the exonerations of eight
individuals since then-Governor Warner ordered re-testing in 2004." Most recently, in March
2013, the Virginia Supreme Court granted Garry Diamond’s Petition for Writ of Actual
Innocence based on DNA evidence.“ Diamond was arrested for abduction with intent to defile
in 1976 and served fifteen years in prison before DNA testing demonstrated he was not the
perpetrator.” If the biological evidence that led to this exoneration had been destroyed pursuant
to the presumptive fifteen-year limit, Diamond may have been precluded from proving his

37 Va. CODE ANN. § 19.2-270.4:1(A) (2013); Commonwealth v. Stevens, 60 Va. Cir. 432, *10 (Va. Cir. Ct. 2002)
(“[T]he Motion must specifically identify the human biological evidence that is to be preserved. However, upon
filing of an amended Motion, the Movant may request a hearing for the limited purpose of specifically identifying
what human biological evidence exists in the case if he is unable to establish this evidence with specificity from the
record of the case.”).

38 Va. CoDE ANN. § 19.2-270.4:1(A) (2013) (emphasis added); Neal v. Com. Attomey of Roanoke City, 60 Va.
Cir. 440, at *3-4 (Va. Cir. Ct. 2002) (noting that the court must order the storage, preservation, and retention of
biological evidence upon a defendant’s motion). VA. CODE ANN. §19.2-270.4:1(A) (2013) further provides that,
upon granting a motion for preservation of DNA evidence, the court must order that all biological evidence be
transferred to the Virginia Department of Forensic Science (DFS).

© Telephone Interview by Erica Knievel Songer and Kathryn Marshall with Shawn Armbrust, Exec. Dir., Mid-
Atlantic Innocence Project (July 19, 2013) (on file with author).

“0 Kristin A. Dolan, Creating the Best Practices in DNA Preservation: Recommended Practices and Procedures,
49 No. 2 Crim. Law BULL. (2013) (noting that of the thirty-four jurisdictions with laws goveming preservation of
biological evidence, thirty call for blanket preservation of such evidence, requiring the state to preserve all
biological evidence regardless of whether preservation is specifically requested).

Va. CODE ANN. § 19.2-270.4:1(A) (2013).

Id. (‘[TJhe court may upon motion or upon good cause shown, with notice to the convicted person, his attomey
of record and the attomey for the Commonwealth, modify the original storage order, as it relates to time of storage
of the evidence or samples, for a period of time greater or less than that specified in the original order.”).

Garry Diamond Exonerated by Supreme Court of Virginia, Mm-ATLANTIC INNOCENCE PROJECT,
http://www. exonerate.org/2013/garry-diamond-exonerated-by-supreme-court-of-virginia/ (last visited Aug. 19,
2013); Challenges Greet Panel Overseeing State Lab, VIRGINIAN PILOT & LEDGER STAR, Nov. 28, 2005. The “Old
Case Testing Project” began in 2005 when then-Governor Mark Wamer ordered the DNA testing of thousands of
forensic files from serious felony cases uncovered from the 1970s and 1980s. Maria Glod, Va. DNA Project Is In
Uncharted Territory, WASH. Post, Aug. 17, 2008, at C1.

Id.

2

® Id.

75

innocence. With respect to capital cases, the failure to preserve such evidence could preclude
testing of evidence that led to imposition of a death sentence—such as evidence that constituted
a predicate offense to first-degree murder during the guilt phase or evidence that constituted an
aggravating circumstance at the sentencing phase of a capital trial.“

Law Enforcement Practices

With respect to individual law enforcement policy procedures, the Virginia Assessment Team
submitted surveys to twenty law enforcement agencies throughout the Commonwealth regarding
training, policies, and practices relative to collection and preservation of evidence, among other
issues.”” Four agencies—the Virginia State Police, Arlington County Police, Danville Police,
and Norfolk Police—responded to the survey. Responding agencies indicated varying policies
conceming general retention of evidence. For example, Arlington County Police policy
stipulates that DNA in homicide cases in which no arrest has been made will be kept
“indefinitely,” while evidence in homicide cases where an arrest has been made will be kept until
“the sentence has been completed.”“* The Norfolk Police Department indicates that “evidence
not introduced at trial is kept until all appeals are over.”

Failure to Preserve Evidence

It appears that despite maintaining guidelines and procedures pursuant to Virginia statutes on
chain of custody, transferring, storing, preserving, and maintaining evidence, 50 there have been
instances in capital cases on habeas review where counsel from the Virginia Capital
Representation Resource Center (VCRRC) have sought physical evidence in the case and such
evidence had not been properly stored, preserved, or could not be located.*!

However, the Virginia statute related to post-conviction DNA testing provides expressly that
“{a]n action under this section . . . shall not form the basis for relief in any habeas corpus

‘© Commission of first-degree murder becomes a capital-eligible offense if one of over fifteen “predicate” offenses

is present. VA. CODE ANN. § 18.3-31 (2013). If convicted of a capital offense, a defendant may be sentenced to
death if one of two aggravating factors is proved beyond a reasonable doubt. VA. CODE ANN. § 19.2-264.2 (2013).

Surveys were i to the following law enft agencies and training entities: Arlington County
Police Department; Chesterfield County Police Department; Chesterfield County Police Training Academy;
Danville Police Department; Norfolk Police Department; Northem Virginia Criminal Justice Training Academy;
Piedmont Regional Criminal Justice Training Academy; Prince William County Police Department; Prince William
County Criminal Justice Academy; Richmond Police Department; Richmond Police Training Academy; Roanoke
Police Department; Roanoke Police Department Training Academy; Virginia Beach Police Department; Virginia
Beach Police Department Law Enforcement Training Academy; Virginia Department of Criminal Justice Services
Division of Law Enforcement; Virginia Office of Public Safety; Virginia Sheriffs Institute; Virginia State Police;
Virginia State Police Training Division.
48“ ARLINGTON CNTY. POLICE Dep’T, ADMIN. WRITTEN DIRECTIVE 514.07 (2010) (on file with author).

Norfolk Police Dep’t Survey Response, provided by Captain Ed Ryan, Norfolk Police Dep’t., to Mark Pickett,
at 7 (Feb. 14, 2012) (on file with author).
°° See VA, DEPT OF FORENSIC SCI., STANDARDS AND GUIDELINES FOR THE METHOD OF CUSTODY, TRANSFER, AND
RETURN OF EVIDENCE (Va. CODE § 19.2-270.4:1), available at
http://www.dfs. virginia. gov/servic icBiol dardsGuidelines19.2-270.4.pdf (last visited Aug. 19,
2013).

BL Telephone Interview with Robert E. Lee, Exec. Dir., VCRRC (Jun. 20, 2012) (on file with author).

76

proceeding or any other appeal.”®” Accordingly, Virginia courts routinely deny post-conviction
petitions that challenge lower courts’ denials of DNA testing requests due to the failure of the
Commonwealth to preserve biological evidence, even in capital cases.*?

For instance, Robin Lovitt was tried for capital murder and sentenced to death.” After the
Virginia Supreme Court affirmed his conviction, the Chief Deputy Clerk at the trial court,
without consulting with the Commonwealth Attorney’s office, the Attorney General’s office, the
police department, Lovitt’s trial or habeas counsel, or any of the judges on the court, drafted an
order authorizing the destruction of the exhibits from Lovitt’s trial, including biological
evidence.” The court entered the order and the evidence was destroyed.” Lovitt filed a habeas
petition arguing that the Commonwealth had violated his due process rights because he was
deprived of an opportunity to seek new scientific testing of DNA evidence collected in his case,
which was necessary for him to seek a writ of actual innocence.*’ The Virginia Supreme Court
denied relief, affirming the circuit court’s finding that the Commonwealth did not act in bad faith
when it destroyed the DNA evidence and holding that destruction of evidence does not provide
grounds for habeas relief.” Because there is no remedy for the Commonwealth’s failure to
comply with Virginia’s preservation statute, the effectiveness of the testing statute itself is
undermined.®

Consumption of Evidence at Testing

Finally, Virginia does not have any statutory provisions limiting the consumption of biological
evidence during the testing procedure. Because initial testing of crime scene evidence may be
completed prior to a defendant’s arrest or initial discovery proceedings, it is possible that an
entire biological sample will be consumed before the defendant receives notice of the existence
of the sample. The potential for error is further compounded in Virginia as state law permits
entities to preserve only representative samples which may be wholly consumed by testing.°°
Given the significant advancements in forensic testing in the recent past, evidence deemed too
degraded for sampling may now be highly probative in the future. As noncompliance with

Va. CODE ANN. § 19.2-327.1(G) (2013).

533 See, e.g., Harvey v. Warden of Coffeewood Correctional Center, 597 S.E.2d 58, 58 (Va. 2004) (dismissing
habeas petition challenging validity of DNA testing procedures and certificate based on § 19.2-327.1(G)); Lovitt v.
Warden, 585 S.E.2d 801, 816-17 (Va. 2003) (declining to grant habeas relief where petitioner claimed that the

G ealth destroyed biological evidence and thus failed to comply with the statutory preservation
requirements, based on the court’s application of § 19.2-327.1(G)); Gaston v. Commonwealth, 585 S.E.2d 596, 597
(Va. 2003) (dismissing habeas petition challenging denial of post-conviction DNA testing for lack of jurisdiction

based on VA. CODE ANN. § 19.2-327.1(G)).

°  Lovitt, 585 S.E.2d at 805.

% Id. at 808-09.

Id.

7 Id. at 814.

°8 Id. at 816. The day before Lovitt was scheduled to be executed, then-Govemor Mark Wamer commuted his

sentence to life imprisonment because of the Commonwealth’s improper destruction of evidence. Michael D. Shear

and Maria Glod, Warner Commutes Death Sentence, WASH. Post, Nov. 30, 2005, at Al, available at

http://www. com/wp-dyn/ ticle/2005/11/29/AR2005112901054. html.

5° Interview with Shawn Armbrust, supra note 47.

80 Va. CODE ANN. § 19.2-270.4:1(D) (2013). Virginia law permits courts to order the storage of “only
ive samples” of biol evidence where that evidence is “of such a nature, size, or quantity that

storage, preservation or retention of all of the evidence is impractical.” Id.

77

preservation and storage requirements does not provide a basis for appellate or habeas corpus
relief, it is unlikely that Virginia courts would recognize a cause of action for partial storage or
consumption of an entire biological sample during initial testing.

Conclusion

Virginia requires automatic preservation of biological evidence in capital cases; however, the
preservation of evidence which likely affects death-eligibility—such as evidence in non-capital
cases—is not required to be preserved for as long as the defendant remains incarcerated.
Further, the Virginia Code prohibits petitioners from seeking a writ of habeas corpus if the
Commonwealth fails to preserve biological evidence—even in capital cases. Thus, Virginia is in
partial compliance with Protocol #1.

Recommendation

The Virginia Assessment Team recommends that when biological evidence is collected in a
felony case, Virginia should require long-term preservation of such evidence.” The experience
of the many other states that have enacted provisions which call for blanket preservation of
biological evidence in criminal cases may prove instructive.” Long-term preservation of
biological evidence would not only improve the Commonwealth’s ability to identify wrongful
convictions, but would also be an effective tool to assist in identifying and convicting actual
perpetrators.

In addition, the Commonwealth should provide notice to all parties whenever testing may
consume the only available sample of evidence.

Finally, in order to encourage preservation and promote adherence to existing evidence
preservation requirements, the Assessment Team recommends that state law 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

5! Va. CODE ANN. § 19.2-327.1(G) (2013).

Notably, Virginia enacted a law requiring collection, testing, and preservation of a DNA sample from “[e]very
person arrested for the i or ion of a violent felony . . . or a violation or attempt to
commit a violation” of other specific crimes, such as burglary. VA. CODE ANN. § ‘19: 2-310.2:1 (2013). The law
further requires that “[t]he identification characteristics of the profile resulting from the DNA analysis shall be
stored and maintained by the Department [of Forensic Science] in a DNA data bank and shall be made available as
provided in § 19.2-310.5.” Id.

See e.g., ALASKA STAT. § 12.36.200(a)(2) (2013); ARIZ. REV. STAT. ANN. § 13-4221(A) (2013); ARK. CODE
ANN. § 12-12-104(a) (2013); CAL. PENAL CobE § 1417.9(a) (2013); CoLo. REV. STAT. § 18-1-1103(2) (2013); D.C.
CopE § 22-4134(a) (2013); FLa. STAT. § 925.11(4)(a) (2013); Ga. CopE ANN. § 17-5-56(a) (2013); Haw. Rev.
STAT. § 844D-126(a) (2013); 725 ILL. Comp. STAT. § 5/116-4(a) (2013); Iowa CoE § 81.10(10) (2013); Mp. CoDE
ANN. CRIM. PROC. § 8-201(j) (2013); Micu. Comp. Laws § 770.16(12) (2013); MINN. STAT. § 590.10 (2013); Miss.
Cope ANN. § 99-49-1(3)(a) (2013); Mo. Rev. STAT. § 650.056 (2013); Mont. CoDE ANN. § 46-21-111(1)(a)
(2013); NeB. Rev. STAT. § 29-4125(1) (2013); Nev. Rev. Stat. § 176.0912(1) (2013); N.H. Rev. STAT. ANN. §
651-D:3(1) (2013); N.M. Stat. ANN. § 31-1A-2(L) (2013); N.C. Gen. STAT. § 15A-268(a1) (2013); OHIO REV.
Cope ANN. § 2933.82(B)(1) (2013); OKLA. STAT. tit. 22, § 1372(A) (2013); S.B. 310(1), 75th Leg. Assemb., Reg.
Sess. (Or. 2009); R.I. GEN. Laws § 10-9.1-11(a) (2013); S.C. CoDE ANN. § 17-28-320 (2013); TEx. CoDE CRIM.
PROC. ANN. § 38.43(c) (2013); Wis. STAT. § 165.81(3)(b) (2013).

78

exercising their discretion to determine if the circumstances surrounding lost or destroyed
biological evidence warrant relief.™

B. Protocol #2

All biological evidence should be made available to defendants and convicted
persons upon request and, in regard to such evidence, such defendants and
convicted persons may seek appropriate relief notwithstanding any other provision
of the law. Jurisdictions should provide access to post-conviction DNA testing to
comport, at a minimum, with the standards and procedures set forth in the
American Bar Association Criminal J ustice Standards on DNA Evidence, Standard
6.1, Post-conviction Testing (reproduced below, in relevant part, with slight
modifications).

1. Availability of Post-conviction DNA Testing

a. A person who has been convicted of a serious crime, including a person
convicted based on a guilty plea, should be permitted to have DNA evidence
in the possession of the prosecution or one of its agents tested or retested
after conviction if:

i. the testing requested was not available at the time of trial, there is
credible evidence that prior test results or interpretation were
unreliable, or the interests of justice require testing or retesting; and

ii, the results of testing or retesting could create a reasonable probability
that the person is innocent of the offense, did not have the culpability
necessary to subject the person to the death penalty, or did not engage in
aggravating conduct that caused a y or
enhancement.

2. Procedure for Post-conviction DNA Testing

a. When a person files an application for testing or ing, the prosecution
should be notified and, if the person is indigent and does not have counsel,
counsel should be appointed.

b. The application should be denied unless the person, after consultation with
counsel, files a sworn statement declaring that he or she is innocent of the
crime, did not have the culpability necessary to be subjected to the death
penalty, or did not engage in the aggravating conduct that caused a
mandatory sentence or sentence enhancement.

c. If the person files the statement, a hearing should be held to determine
whether the person has met the requirements of Section (1)(a) and, if there is
a determination that the requirement of this standard has been met, the
request for testing or retesting should be granted.

5 The Virginia statute related to post-conviction DNA testing currently provides that “[aJn action under this

section . . . shall not form the basis for relief in any habeas corpus proceeding or any other appeal.” VA. CODE ANN.

§ 19.2-327.1(G) (2013).

719

d. After the results of any testing are reported to the parties, an applicant
should be permitted to seek a second hearing to determine what relief, if
any, is appropriate.

e. An applicant should have the right to appeal or seek leave to appeal any
adverse decision made p to this

The Virginia Code sets out a series of procedures that must be followed in order for a prisoner to
obtain post-trial DNA testing. If a prisoner is able to obtain testing, s/he may be able to obtain a
“writ of actual innocence” from the Supreme Court of Virginia.

Post-Conviction DNA Testing

Virginia law provides that if certain enumerated criteria are met, “any person convicted of a

felony . . may . .. apply for a new scientific investigation of any human biological evidence” if
such testing“ ‘may prove the actual innocence of the person convicted or adjudicated
delinquent.” The Virginia Code permits applications for new scientific investigations of

biological evidence only where:

(1) the evidence was not known or available at the time the conviction. . . became
final in the circuit court or the evidence was not previously subjected to
testing because the testing procedure was not available at the Department of
Forensic Science at the time the conviction. . . became final;

(2) the evidence is subject to a chain of custody sufficient to establish that the
evidence has not been altered, tampered with, or substituted in any way;

(3) the testing is materially relevant, noncumulative, and necessary and may
prove the actual innocence of the convicted person . .. ;

(4) the testing involves a scientific method employed by the Department of
Forensic Science; and

(5) the person convicted . . . has not unreasonably delayed in filing the petition
after the evidence or the test for evidence became available at the Department
of Forensic Science.”

The post-trial testing statute, however, limits the ability of death row inmates to prove their
innocence or otherwise demonstrate that the inmate should not have been subject to the death
penalty in several important respects.

For example, the law does not permit testing to prove that the inmate did not engage in
aggravating conduct, which the judge or jury must consider before determining the sentence ina
death penalty case. Moreover, unlike the ABA Criminal Justice Standards on DNA Evidence,

See generally VA. CODE ANN. § 19.-2-372.2 (2013).

8° Va. CODE ANN. § 19.2-327.1(A)-(B) (2013), as amended by 2013 Va. Laws Ch. 170 (H.B. 1308) (approved
Mar. 12, 2013). The petitioner must show that s/he is “actually innocent of the crime for which he was
convicted... .” VA. CODE ANN. § 19.2-327.3(A)(ii) (2013).

87 Va. CODEANN. § 19.2-327.1(A)-(B) (2013),

88 The case of John Thompson, prosecuted in 1985 for murder in New Orleans and sentenced to death,
demonstrates the import of permitting testing of evidence relative to predicate offense or aggravating conduct in
death penalty cases. See Connick v. Thompson, 131 S.Ct. 1350, 1371-76 (2011) (Ginsburg, J., dissenting)
( the facts and p history of Thompson’s case). One month before Thompson’s scheduled

80

the Innocence Project’s Model Statute for Obtaining Post-Conviction DNA Testing, or the
statutes of several other states, the Virginia statute does not allow defendants to request DNA
testing and analysis to show that a reasonable probability exists that the defendant would not
have been sentenced to death if testing and analysis produced favorable results. Instead, to
obtain DNA testing in post-conviction proceedings under Virginia law, an inmate must
demonstrate by clear and convincing evidence that the biological evidence may prove his/her
innocence.” Virginia is one of the only states to require clear and convincing evidence of
innocence to grant access to testing of biological evidence. It has been observed that this high
burden “ensures that it is virtually impossible for a convict to be exonerated through DNA
evidence since without access to the evidence he is unable to prove those things necessary to
allow him access.”

The statute also limits post-conviction testing to two sets of circumstances: First, testing may be
permissible where the evidence was not known or available at the time the conviction became
final;” second, testing may be allowed if the particular testing procedure was not available at the
Department of Forensic Science at the time the conviction became final.”* The statute does not
provide for testing based on suspected unreliability of a prior test absent either of the above
criteria.

Finally, Virginia law expressly provides that nothing in the statute “shall constitute grounds to
delay setting an execution . . . or to grant a stay of execution that has been set.” Thus, under
the terms of the statute, a Virginia death row inmate may be executed notwithstanding existence
of evidence that could exonerate the inmate of his/her conviction or death sentence.” In

execution, an investigator hired by Thompson’s post-conviction counsel was permitted to search “[d]eep in the
crime lab archives” of Orleans Parish; based on the investigator’ 's findings and “a serendipitous series of events,”
Thompson’s ad di d evidence that d him from an earlier robbery conviction, which the
prosecution had used to elevate the murder charge to a capital case. Id. at 1374-75. Subsequently, the Louisiana
Court of Appeals reversed Thompson’s murder conviction. Id. Thompson’s defense presented the newly
discovered evidence at his murder retrial in 2003, and, “[a]fter deliberating for only [thirty-five] minutes, the jury
found Thompson not guilty.” Id. at 1376.

See INNOCENCE PROJECT, MODEL STATUTE FOR OBTAINING POST-CONVICTION DNA TESTING 2 (2010),
available at http://www.innocenceproject.org/docs/2010/Access_to_Postconviction_DNA_Testing_%20Model_
Bill_2010.pdf.; Miss. CODE ANN. § 99-39-9(1)(d) (2013) (allowing testing to move for a “lesser sentence”); KAN.
STAT. ANN. § 21-2512(c) (2013) (allowing testing if inmate can show the he or she was “wrongly convicted or
sentenced”); NEB. REV. STAT. § 29-4120(5) (2013) (same); Wyo. STAT. ANN. § 7-12-303(c)(i) (2013) (allowing
testing if the result is reasonably likely to diminish a sentencing enhancement or an aggravating factor in a capital
case).

, Neal v. Com. Attomey of Roanoke City, 60 Va. Cir. 440, at *3 (Va. Cir. Ct. 2002).

Id.
™ Va. CODE ANN. § 19.2-327.1(A) (2013), as amended by 2013 Va. Laws Ch. 170 (H.B. 1308) (approved Mar.
12, 2013).

7 Va. CODE ANN. § 19.2-327.1(A) (2013).

7 Va. CODE ANN. § 19.2-327.1(F) (2013).

7 Herman J. Hoying, 4 Positive First Step: The Joint Legislative Audit and Review Commission's Review of
Virginia's System of Capital Punishment, 14 Cap. DEF. J. 349, 356 (2002) (noting that Virginia executes its death
row inmates at more than twice the rate of any other state); see also Virginia's Execution History, VIRGINIANS FOR
ALTERNATIVES TO THE DEATH PENALTY, http://www.vadp.org/dp-info/virginias-execution-history/ (last visited Aug.
19, 2013).

81

addition, Virginia law does not permit an inmate to appeal a denial of a motion for DNA
testing.

Writ of Actual Innocence Based on Biological Evidence

The Supreme Court of Virginia may issue writs of actual innocence to inmates who (1) pled not
guilty but were convicted of felonies, or (2) regardless of the plea, were sentenced to death, or
convicted of a Class 1 or Class 2 felony or a felony for which the maximum penalty is life
imprisonment.”

If the Court determines from a petition for a writ of actual innocence, any hearing on the petition,
a review of records of the case (including the record of any hearing on a motion to test DNA
evidence), or any response from the Attorney General that proper resolution of the case requires
further factual development, the Court may order the circuit court to hold a hearing.” The order
will state the specific purpose and evidence for which the hearing has been ordered. °

The Supreme Court of Virginia may grant a writ of actual innocence if it determines that the
petitioner has proven all of the elements for a petition by clear and convincing evidence,
including that the petitioner or his/her attorney filed the petition within 60 days of obtaining the
test results, that the evidence was not available for testing under section 9.1-1104 (for
convictions or adjudications that became final after June 30, 1996), and finds that “no rational
trier of fact would have found sufficient evidence beyond a reasonable doubt as to one or more
of the elements of the offense for which the petitioner was convicted.”® Until July 1, 2013, the
law provided that a petitioner must have proved the statutory elements by clear and convincing
evidence such that “no rational trier of fact could have found sufficient evidence.”* The new
standard imposes a slightly lesser burden on defendants attempting to prove their actual
innocence.”

When the Court grants a writ of actual innocence, it forwards a copy of the writ to the circuit
court, “where an order of expungement shall be immediately granted.”

In recent years, Virginia has come under scrutiny for failing to notify individuals who may have
been wrongfully convicted.™ In 2005, Virginia Govemor Mark Warner ordered DNA testing of

7° Va. CODE ANN. § 19.2-327.1(G) (2013).
™ Va. CODE ANN. § 19.2-327.2 (2013), as amended by 2013 Va. Laws Ch. 170 (H.B. 1308) (approved Mar. 12,
2013).
78 Va. CODE ANN. § 19.2-327.4 (2013) (stating that the hearing must be held within 90 days to certify findings of
fact with respect to such issues as the Supreme Court of Virginia shall direct).

Id.

50 Va. CoDE ANN. § 19.2-327.5 (2013) as amended by 2013 Va. Laws Ch. 170 (H.B. 1432) (approved Mar. 12,
2013); VA. CODE ANN. § 19.2-327.3 (2013), as amended by 2013 Va. Laws Ch. 170 (H.B. 1432) (approved Mar. 12,

2013).
81 HB. 1432, Ch. 180, 2013 Sess. (Va. 2013) (emphasis added).
x Interview with Shawn Armbrust, supra note 39.

Id.
% Virginia Fails to Notify Individuals Who May Have Been Wrongfully Convicted, INNOCENCE PROJECT, Feb. 6,
2012, available at http://www.innocenceproject.org/Content/Virginia_Fails_to_Notify_Individuals_Who_May_
Have_Been_Wrongfully_Convicted.php.

82

uncovered forensic files from the 1970s and 1980s after sample testing cleared two men who had
been convicted of rape.” In 2012, DFS issued reports stating that, of the cases tested thus far,
seventy-six convicted felons were excluded as the source of DNA.® Bennett Barbour, for
instance, was convicted of rape in 1978 in Williamsburg based on an eyewitness identification. °”
He was sentenced to eighteen years in prison but was released on parole after serving four-and-a-
half years."* In 2010, the Williamsburg Commonwealth’s Attorney learned that Barbour had
been cleared by DNA testing." However, Barbour did not leam of the test results until eighteen
months later, in 2012, when a volunteer lawyer assisting the Department of Forensic Science
found him.”

The DNA testing in Bennett Barbour's case also produced a match to the likely actual culprit, a
convicted rapist.’ Barbour died from complications from cancer in 2013.°" In 2012, the
Virginia General Assembly, “concerned that potential exonerations were not being adequately
investigated, directed the [D]epartment [of Forensic Science] . . . to release the test results in
cases where testing failed to find the convicted person’s DNA.”°?

Conclusion

Virginia is in partial compliance with Protocol #2. The Virginia Death Penalty Assessment
Team commends the Commonwealth for ensuring that all motions for post-conviction testing are
reviewed by a court. However, Virginia’s imposition of a “clear and convincing” threshold
determination that the biological evidence may prove innocence places a heavy burden on
inmates in order to gain access to testing of biological evidence and also increases the likelihood
that an innocent individual will be executed. In addition, the fact that post-conviction testing is
available only where the evidence was previously unknown or unavailable, or where a particular
testing procedure was not available at DFS at the time of conviction, is likely to result in denial
of testing in cases where prior testing may have been unreliable. Finally, it does not appear post-
conviction DNA testing is available to death row inmates seeking to prove that s/he should not
have been sentenced to death.

Recommendation
The Virginia Assessment Team recommends that the Commonwealth 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

x Frank Green, Case Raises Question of Effort, RICHMOND TIMES-DISPATCH, Feb. 5, 2012.
Id.
87 Frank Green, New DNA Test Could Exonerate Man Convicted of 1978 Rape, RICHMOND TIMES-DIsPATCH, Feb.
5, 2012.
88

%° Green, supra note 85. The Williamsburg Commonwealth’s Attorney stated that police attempted to notify

Barbour in 2010, but they could not locate a correct address. Id. Barbour’s address and phone number, however,
were “readily available on the Internet.” Id.

51 Frank Green, DNA Tests Could Clear More, RICHMOND Timgs-DisPATCH, June 19, 2012.

Frank Green, Bennett S. Barbour Dies, 2 Months After Winning Right to Vote, RICHMOND TIMES-DISPATCH,
an. 11, 2013.

3 Frank Green, DNA Tests Could Clear More, RICHMOND TiMES-DISPATCH, June 19, 2012.

92

83

were unreliable. The Commonwealth should also ensure that Virginia law grants access to
testing to an individual who is able to show that a reasonable probability exists that s/he is
innocent of the offense or did not engage in aggravating conduct in a death penalty case.
Finally, the Commonwealth must adopt procedures for identifying and alerting convicted persons
when potentially-exonerating evidence is discovered in their cases.

C. Protocol #3

Every law enforcement agency should establish and enforce written procedures and
policies governing the preservation of biological evidence.

Initial collection of biological evidence is performed by local law enforcement agencies in the
Commonwealth of Virginia. Agencies accredited by the Commission on the Accreditation of
Law Enforcement Agencies (CALEA) must adopt written directives establishing procedures to
be used in criminal investigations, including procedures regarding collecting, preserving,
processing, and avoiding contamination of physical evidence. Thirty-seven Virginia law
enforcement agencies have been accredited or are in the process of obtaining accreditation by
CALEA.” Similarly, the Virginia Law Enforcement Professional Standards Commission
(VLEPSC) administers a state accreditation for Virginia law enforcement agencies.*° As of
August 2013, VLEPSC has accredited eighty-seven of Virginia’s 378 law enforcement
agencies.’ The VLEPSC accreditation manual requires agencies under accreditation to possess
written directives on “Property and Evidence Control.” However, CALEA and VLEPSC
accreditation are both optional and neither process appears to directly address whether and how
agencies should collect and preserve biological evidence.

Relative to the collection and storage of DNA evidence, the Danville Police Department retains a
written policy which states that the “[c]ollection, processing and packaging of evidence shall
follow standards set by DCJS and set down in the Division of Forensic Science, Evidence

° CoMM’N ON ACCREDITATION OF LAW ENFORCEMENT AGENCIES, INC. (CALEA), STANDARDS FOR LAW

ENFORCEMENT AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY ACCREDITATION
PROGRAM 42.21, 83.2.1 (STH ED. 2009) [HEREINAFTER CALEA STANDARDS].

5 CALEA Client Database, CALEA, available at http://www.calea.org/content/calea-client- database (last visited
Aug. 19, 2013) (using second search function and designating “US” and “VA” as search criteria to determine the
number of agencies that have earned or are in the process of earning accreditation from CALEA’s Law Enforcement

Accreditation Program).

%® Overview & Benefits, VA. DEP’T OF CRIMINAL JusTICE SERVS.,
http://www.dcjs. virginia.gov/accred/overview.cfm (last visited Aug. 19, 2013).

"Accredited Agencies, va. DEP’T OF CRIMINAL JUSTICE SERVS.,

http://www.dcjs.virginia.gov/accred/agencies.cfm (last visited Aug. 19, 2013); Frequently Asked Questions, VA.
DeP’T OF CRIMINAL JUSTICE SERVS., http://www.dcjs.virginia.gov/accred/faqs.cfm (last visited Aug. 19, 2013)
(noting that an advantage to accreditation is that it serves as the “best measure of an agency’s compliance with
law dards,” but not stating that accreditation is required); Telephone Interview by
Mark Pickett with Sam Hoffman, Standards, Policy, & Homeland Sec. Manager, Va. Dep’t of Criminal Justice
Servs. (May 9, 2013) (stating that there are 378 law enforcement agencies in Virginia).
Va. Law Enforcement Prof 1 Standards C Va. LAW ENFORCEMENT ACCREDITATION
PROGRAM MANUAL 13 (2012), available at _http://www.dcjs.virginia.gov/accred/documents/6th-
EditionProgramManual-V 6.pdf (last visited Aug. 19, 2013).

84

Handling manual.”® Similarly, the Norfolk Police Department indicated that its “forensic SOP”
governs evidence collection and preservation.’

The Department of Forensic Science also publishes an Evidence Handling and Laboratory
Capabilities Guide, mentioned above in the Danville Police Department’s response to the
Assessment Team’s survey, which provides guidance to Virginia law enforcement agencies on
the collection, packaging, preservation, and transference of evidence, including DNA evidence,
to DFS laboratories." DFS also has developed an extensive database of guidelines and training
materials relating to the collection, testing, and preservation of biological evidence.'”
Additionally, DFS has worked with the Supreme Court of Virginia to create model court orders
granting post-conviction motions for scientific analysis of biological evidence, as well as
motions for storage, preservation, and retention of human biological evidence in felony cases.

Furthermore, under Virginia statutory guidelines, the Director of DFS or his/her representative
“shall complete and maintain on file a form indicating the name of the person whose sample is to
be analyzed, the date and by whom the sample was received and examined, and a statement that
the seal on the tube or envelope containing the sample had not been broken or tampered with.”
The Virginia Code further provides that the remainder of a sample submitted for analysis and
inclusion in the DNA data bank may be divided and securely stored to ensure the integrity and
confidentiality of the samples, and the remainder of the sample may be used “only (i) to create a
statistical data base” or “(ii) for retesting by the Department to validate or update the original
analysis."

DFS is accredited by the American Society of Crime Laboratory Directors/Laboratory
Accreditation Board (ASCLD/LAB), discussed at length in Chapter Four on Crime Laboratories
and Medical Examiner Offices.'® As a prerequisite to ASCLD/LAB accreditation, laboratories
are required to adopt specific procedures relating to the preservation of evidence.”

Conclusion

While the Assessment Team could not determine whether all law enforcement agencies
responsible for collection of biological evidence retain written policies relative to collection and
preservation of that evidence, the Virginia Assessment Team commends the Commonwealth for
its establishment of written policies and procedures goveming the collection, handling, testing,

DANVILLE POLICE DEP’T, GENERAL ORDER 330 (on file with author).
10 Norfolk Police Dep’t Survey Response, provided by Captain Ed Ryan, Norfolk Police Dep’t., to Mark Pickett,
at 7 (Feb. 14, 2012) (on file with author).
101 EVIDENCE HANDLING GUIDE, supra note 10, at Ch. V.

1 Laboratory and Forensic Services Manuals, Derr. OF FORENSIC ScL,
http: //www.dfs.virginia.gov/ icBiology/index.cfm?id=5& crumbs=4 (last visited Aug. 19, 2013).

103" Post-conviction DNA Issues: Model Court Orders, DEPT. OF FORENSIC SCL,
http: //www.dfs. virginia. gov/servic icBiolog cfm (last visited Aug. 19, 2013).

ie Va. CODE ANN. § 19.2-310.4 (2013).
108 See ASCLD/LAB Accredited Laboratories, AM. Soc’y oF CRIME Las. Dirs./LAB. ACCREDITATION BD.,
http: //www.ascld-lab.org/accredited-laboratory-index/ (last visited Aug. 19, 2013).

Am. Soc’y OF CRIME Las. Dirs./LAB. ACCREDITATION BD., 2008 MANUAL 24-25 (2008) (on file with author)
[hereinafter ASCLD/LAB-LEGAcy 2008 MANuaL].

85

and transport of biological evidence. The Commonwealth is in at least partial compliance with
Protocol #3.’

Recommendation

It is unclear to what extent law enforcement agencies in Virginia are aware of and compliant
with the statutory requirements and written policies governing preservation." The Virginia
Assessment Team recommends that Virginia institute mandatory and uniform training for law
enforcement agencies to ensure that the best collection and preservation procedures are followed
by each agency, as well as require that agencies promulgate written policies relative to the
collection and preservation of biological evidence.

D. Protocol #4

Provide adequate funding to ensure the proper preservation and testing of
biological evidence.

The Department of Forensic Science is responsible for the preservation and testing of biological
evidence in Virginia.’ The department’s budget is discussed at length in Chapter Four.
Notably, DFS has received numerous federal grants specifically awarded for DNA testing. The
National Institute of Justice’s DNA Backlog Reduction Program has awarded DFS substantial
funding in order to “reduce the forensic DNA case backlog and for capacity enhancement in its
four Forensic Biology Sections.”"! Between 2004 and 2011, DFS received $8,823,024 from the
Backlog Reduction Program.’” In 2008, DFS also received a Kirk Bloodsworth Postconviction
DNA Testing grant in the amount of $4,250,295 to assist the Governor-mandated post-conviction
DNA testing in old cases.’ Two Virginia defendants, Thomas Haynesworth and Calvin
Cunningham, have been exonerated through post-conviction DNA testing funded by the
Bloodsworth grant.!"

DFS uses a commercially available DNA typing kit known as PowerPlex® 16, which permits the
examiner to test sixteen genetic areas of DNA simultaneously for comparison to a known

108 See supra note 47 and accompanying texts on Virginia law agencies” resp to the
Team’s survey on law enforcement practices relative to death penalty cases.
® Interview with Shawn Armbrust, supra note 39.
HO Va. CODE ANN. §§ 19.2-270.4:1(A), 19.2-310 (2013).
"1 See Backlog Reduction Funding Awards, 2004-2011, NAT'L INST. oF  JusTicz,

http://www.nij.gov/topic: ics/lab- idence-backlogs/backlog-reduction-funding.htm (last visited
Aug. 19, 2013); DNA Initiative Report to Congress: FY 2011, NATL INST. OF JUSTICE,
http://nij.gov/topi ics/lab- ions/evidence-backlogs/fy11-report-to-congress.htm (last visited Aug. 19,
2013).

12" Backlog Reduction Funding = Awards, 2004-2011, NaTL INST. = OF_~——«SJUSTICE,
http://www.nij.gov/topics/forensics/lab- i idence-backlogs/backlog-reduction-funding.htm (last visited

Aug. 19, 2013).

13" Awards Made for NIJ FY08 Postconviction DNA Testing Assistance Program, NAT’L INST. OF JUSTICE,
http://grants.ojp.usdoj.gov:85/selector/title?solicitationTitle=NJJ %20FY 08% 20Postconviction%20DNA %20Testing
%20Assistance%20Program&po=NIJJ (last visited Aug. 19, 2013).

‘4 Postconviction DNA Testing Assistance rogram Exonerations, NAT'L INST. OF JUSTICE,
http://www.nij.gov/nij/topics/f icti htm (last visited Aug. 19, 2013).

86

sample.’ If the DNA profile obtained from the evidence is consistent with the DNA profile
obtained from the sample, the examiner will perform a statistical calculation to provide weight to
the conclusion that the biological substance was deposited by a specific individual.’ DFS has
the capacity to conduct all types of DNA testing, including Y-STR and mitochondrial DNA
(mtDNA) testing.""” However, Y-STR and mtDNA testing are used only in a limited range of
cases, such as body identification, missing persons or paternity cases.'"® DFS also uses mtDNA
testing “to aid serious felony investigations when other methods of DNA testing yielded limited
to no results.”"!9

The DFS laboratory receives approximately 4,000 cases per year.” Survey data indicate that the
testing backlog at DFS decreased by 31% between 2002 and 2005, from 1,752 cases in 2002 to
1,213 cases in 2005."" This reduction resulted primarily from a decision by the Commonwealth
to enter into a contract with a private laboratory to test backlogged convicted offender samples
for three years between 1998 and 2001, as well as federal funding from the National Institute of
Justice.” The recently enacted “touch evidence” policy, under which DFS stipulated that it
would not accept touch evidence for property crimes without a written request from the
prosecutor’s office, also has helped to reduce the backlog.'* DFS reports that there is currently
no backlog on the in-house analysis of samples of convicted offenders or arrestees. '**

In addition, DFS runs the Forensic Science Academy to “provide advanced training to law-
enforcement agencies in the location, collection, and preservation of evidence.” 7

Conclusion

Due to the availability of advanced DNA testing and the reduction in the backlog of cases, it
appears that the Commonwealth is in compliance with Protocol #.

te EVIDENCE HANDLING GUIDE, supra note 10, at V-6.
Id.

119 Id.
120 ICF INT’L, EVALUATION OF THE IMPACT OF THE FORENSIC CASEWORK DNA BACKLOG REDUCTION PROGRAM
(2009), available at https://www.ncjrs. gov/pdffiles1 /nij/grants/225803.pdf.

"22 DNA Databank Statistics, VA. DEPT. OF FORENSIC SCL, http://www.dfs. virginia gov/statistics/ (last visited Aug.
19.201),

124 Id.

25 Va. CODEANN. § 9.1-1103 (2013).

87

88

CHAPTER FOUR
CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

With the increased reliance on forensic evidence—including DNA, ballistics, fingerprinting,
handwriting comparisons, and hair samples—it is vital that forensic service providers, such as
crime laboratories, coroners, and medical examiner offices, provide expert and accurate results.

Despite the increased reliance on forensic evidence and those who collect and analyze it, the
validity and reliability of work done by some unaccredited and accredited forensic analysts has
been called into question.! While the majority of forensic service providers strive to do their
work accurately and impartially, some laboratory technicians have been accused or convicted of:
failing to properly analyze blood and hair samples; reporting results for tests that were never
conducted; misinterpreting test results in an effort to aid the prosecution; testifying falsely;
failing to preserve DNA samples; or destroying DNA or other biological evidence.” This has led
to internal investigations into the practices of several prominent crime laboratories and
technicians, independent audits of crime laboratories, and the reexamination of cases. 3

In addition, the system of medico-legal death investigations throughout the United States is
fragmented, sometimes relying on elected officials without any medical training to determine the
cause and manner of sudden or unexplained deaths.* Like other forensic service providers, many
medical examiner and coroner offices suffer from inadequate funding, making it difficult to
recruit and retain qualified death investigation personnel. Despite these concerns, pressure
mounts on the forensic science community. Significant backlogs continue to plague publicly-
funded crime laboratories attendant with a growing demand for their services.°

The need for accuracy and reliability in forensic science necessitates that jurisdictions allocate
adequate resources to forensic service providers. In order to take full advantage of the power of

'  CoMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC Sci. CMTY. ET AL., NAT’L RESEARCH COUNCIL OF THE

NAT’L ACADS., Strengthening Forensic Science in the United States: A Path Forward 37-52 (2009), available at
http://www.nejrs.gov/pdffiles 1 /nij/grants/228091.pdf {hereinafter 2009 NAS Report].

Id. at 42-45.

See, e.g., Martha Waggoner, Report Blasts N.C. Crime Lab: Review Found that Agents Misrepresented
Evidence, Kept Critical Notes from Attorneys, CHARLESTON GAZETTE & DAILY MAIL, Aug. 19, 2010, at 5D; Error-
prone Detroit Crime Lab Shut Down, USA Topay, Sep. 25, 2008, http://www.usatoday.com/news/nation/2008-09-
25-crime-lab_N.htm (reporting that a state audit found a ten percent error rate in 200 cases); Julie Bykowicz &
Justin Fenton, City Crime Lab Director Fired, BALTIMORE SUN, Aug. 21, 2008 (reporting that several samples were
contaminated by analysts own DNA); 2009 NAS Report, supra note 1, at 193 (describing the problems in the
Houston Police Department Crime Laboratory, including “ ‘poor documentation, serious analytical and interpretive

ed

errors, the absence of quality p train 1, erroneous reporting, the use of
inaccurate and misleading statistics, and even . . . the falsification of scientific results”). See also Wrongful
Convictions Involving Unvalidated or Improper Forensic Science that Were Later Overturned through DNA
Testing, INNOCENCE PROJECT, http://www.i org/docs/DNA_E ; Forensic_Science.pdf

(last visited Aug. 19, 2013) (“Of the first 225 wrongful convictions overturned by DNA testing, more than 50% (116
cases) involved invalidated or improper forensic science.”).

4 2009 NAS Report, supra note 1, at 49-5

Id. at 37.

89

forensic science to aid in the search for truth and to minimize its enormous potential to contribute
to wrongful convictions, forensic service providers must be accredited, examiners and lab
technicians must be certified, procedures must be standardized and published, and adequate
funding must be provided.

90

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW
A. Forensic Science Laboratories

1. Virginia Crime Laboratories
a. The Virginia Department of Forensic Science

Created in 2005, the Virginia Department of Forensic Science (DFS) is a statewide executive
branch system comprised of four forensic laboratories located throughout the Commonwealth. °
DFS laboratories provide forensic laboratory services to “all state and local law enforcement
agencies, medical examiners, and Commonwealth’s Attorneys in Virginia.” The laboratory
system consists of four regional laboratories, including the “Central Laboratory” in Richmond,
the “Northern Laboratory” located in Manassas, the “Western Laboratory” in Roanoke and the
“Eastern Laboratory” in Norfolk.® In addition to these laboratories, the Prince William County
Police Department operates a local laboratory, the Forensic Services Bureau, in Manassas,
Virginia serving law enforcement agencies in and around Prince William County.°

DFS is headed by a Director who is appointed by the Governor from a list of candidates from the
Forensic Science Board (Board) and confirmed by the General Assembly, and who serves six
year terms.’” The Director is authorized to exercise powers and perform duties conferred by the
Governor and requested by the Board."

b. Independent and Non-Virginia Forensic Laboratories

The Virginia Capital Defender Offices—which represents the Commonwealth’s capital
defendants at trial and on direct appeal—and the Virginia Capital Representation Resource
Center (VCRRC)—which represents the Commonwealth’s death row inmates during state and
federal habeas corpus and clemency proceedings—use DFS laboratories when necessary or out-
of-state laboratories, such as Mitotyping in State College, Pennsylvania, for forensic testing.

® Va. CoE § 9.1-1100 (2005). DFS’s precursor was the Department of Criminal Justice Services’ Division of

Forensic Science. Id.
Va. DEP’T OF FORENSIC SCL., http://www.dfs.virginia.gov (last visited Aug. 19, 2013).
Regional Labs, Va. DEP’T OF FORENSIC SCL, http://www.dfs. virginia. gov/labs/index.cfm (last visited Jan. 6,
2012).
° Forensic Services Bureau, PRINCE WILLIAM Cnty. POLICE DEP’T,
http://www.pwcgov.org/government/dept/police/careers/Pages/Forensic-Services-B ureau.aspx (last visited Aug. 19,
2013).
: VA. CODE ANN. § 9.1-1100 (2013).

Id.

8

2 Telephone Interview by Mark Pickett with Ed Ungvarsky, Capital Defender North (June 1, 2012) (on file with
author) (stating that his office typically uses either the Virginia Department of Forensic Science or Mitotyping
Technologies in State College, Penn., and has used Bode Lab once); Interview by Paula Shapiro and Mark Pickett
with Robert E. Lee, Exec. Dir., Va. Capital Representation Res. Ctr. (June 20, 2012) (on file with author).
Mitotyping Technologies is accredited in Forensic Testing, Biology, by ASCLD/LAB-International. Scope of
Accreditation for Mitotyping Technologies, LLC, ASCLD/LAB-INT'L PROGRAM (Nov. 21, 2011), available at
http://www. ascld-lab.org/cert/A LI-025-T. pdf.

91

2. DFS Powers and Duties

DFS is responsible for providing forensic laboratory services, research, and scientific
investigations to state or federal law enforcement, state medical examiners, Commonwealth’s
Attorneys and state agencies involved in criminal matters.'> Upon request, DFS will provide to
any defendant or his/her attorney the testing results “of any investigation that has been conducted
by it and that is related in any way to a crime for which the person is accused.” '* DFS may also
conduct a scientific investigation pursuant to a court's order upon motion of a convicted
offender.’° It is also the responsibility of DFS to establish a DNA testing program.’°

In addition to the forensic evaluation and analysis services, DFS forensic examiners interpret
results, provide technical and training assistance and provide “expert testimony related to the full
spectrum of physical evidence recovered from crime scenes.”!’ The Department also maintains
secure facilities to ensure the protection of evidence, official samples, and all other samples
submitted to the Department for analysis or examination.'®

For more information on Virginia’s procedures with respect to testing and preservation of
evidence in criminal cases, see Chapter Three on the Collection, Preservation, and Testing of
DNA and Other Types of Evidence.

3. Laboratory Accreditation

While Virginia does not currently require the accreditation of crime laboratories, “[a]ll of the
Division’s laboratories have been continuously accredited by the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board [(ASCLD/LAB)] since 1989."!9 The
ASCLD/LAB-International Accreditation Program is based on standards developed by the
International Organization for Standardization (ISO) and the International Electrotechnical
Commission (IEC), collectively known as the ISO/IEC 17025:2005 (International program).”°
The International program is a voluntary accreditation program “in which any crime
laboratory... may participate to demonstrate that its technical operations and overall
management system meet ISO/IEC 17025:2005 requirements and applicable ASCLD/LAB-
International supplemental requirements,””!

5 Va. CODE ANN. § 9.1-1101(A)-(B)(1) (2013).
Va. CODE ANN. § 9.1-1104 (2013).

'© Va. CODEANN. § 9.1-1101(B)(2)-(3),(C) (2013).

17 Va. DEp’T OF FORENSIC Scl., http://www.dfs. virginia.gov/index.cfm (last visited May 30, 2012).

' Va. CODE ANN. § 9.1-1102(A)-(B) (2013).

Telephone Interview with Katya Herndon, Division Counsel, Dep’t. of Forensic Services (on file with author).
ASCLD/LAB Accredited Laboratory Index, ASCLD/LAB, http://www.ascld-lab.org/accredited-laboratory-
index/ (last visited Aug. 19, 2013); Programs of Accreditation, ASCLD/LAB, _http://www.ascld-
lab.org/international-testing-program/ (last visited Aug. 19, 2013); ISO/IEC 17025, GENERAL REQUIREMENTS FOR
THE COMPETENCE OF TESTING AND CALIBRATION LABORATORIES V (2d ed. 2005) (on file with author) [hereinafter
ISO/IEC 17025: GENERAL REQUIREMENTS].

21 ASCLD/LAB, ASCLD/LAB-INTERNATIONAL PROGRAM OVERVIEW 3 (Sept. 11, 2010) (effective Oct. 1, 2010),
available at http://www.ascld-lab.org/documents/AL-PD-3041.pdf [hereinafter ASCLD/LAB-INTERNATIONAL
OVERVIEW].

92

Table 1, below, details the disciplines in which each state laboratory received International

program accreditation.

Table 1

Forensic Laboratory”

ASCLD/LAB Certified Discipli

Virginia Department of Forensic Science,
Central Laboratory (Richmond, Virginia)

Controlled Substances; Toxicology; Biology; Trace Evidence;
Firearms/Toolmarks; Latent Prints; Questioned Documents; Digital
Evidence; and Other (Impression Evidence and Blood Stain
Pattems)>

Virginia Department of Forensic Science,
Eastern Laboratory (Norfolk, Virginia)

Controlled Substances, Toxicology; Biology; Trace Evidence;
Firearms/Tool marks; and Latent Prints“

Virginia Department of Forensic Science,
Northem Laboratory (Manassas, Virginia)

Controlled Substances, Toxicology; Biology; Firearms/Toolmarks;
and Latent Prints”

Controlled Substances; Toxicology; Biology; Trace Evidence;
Firearms/Toolmarks; Latent Prints; Questioned Documents; and
Other (Impression Evidence) kd

Virginia Department of Forensic Science,
Western Laboratory (Roanoke, Virginia)

Virginia Department of Forensic Science,
Breath Alcohol Calibration (Richmond,
Virginia)

Prince William County Police, Forensic
Services Bureau (Manassas, Virginia)

Forensic Science Calibration: Toxicology”

Latent Prints and Crime Scene”

In addition, Mitotyping Technologies, LLC—an independent laboratory in State College,
Pennsylvania that is used by the Capital Defender North—is accredited i in the biology discipline
of forensic testing under the ASCLD/LAB-International Program.” Bode Technologies, a
forensic laboratory that is accredited by the ASCLD/LAB-Legacy Program in biology, has been
used in at least one capital case in Virginia within the past five years.

22 ASCLD/LAB Accredited Laboratories, ASCLD/LAB, http://www.ascld-lab.org/labstatus/accreditedlabs. html #va

(last visited June 28, 2013).

Scope of Accreditation for the Virginia Department of Forensic Science Central Laboratory, ASCLD/LAB-
INT'L PROGRAM (Sept. 12, 2009), available at http://www.ascld-lab.org/cert/A LI-091-T.pdf.
°4 Scope of Accreditation for the Virginia Department of Forensic Science Eastern Laboratory, ASCLD/LAB-
INT’L PROGRAM (Sept. 12, 2009), available at http://www.ascld-lab.org/cert/A LI-092-T.pdf.
5 Scope of Accreditation for the Virginia Department of Forensic Science Northern Laboratory, ASCLD/LAB-
INT'L PROGRAM (Sept. 12, 2009), available at http://www. ascld-lab.org/cert/A LI-093-T.pdf.
%© Scope of Accreditation for the Virginia Department of Forensic Science Western Laboratory, ASCLD/LAB-
InT'L PROGRAM (Sept. 12, 2009), available at http://www.ascld-lab.org/cert/A LI-094-T.pdf.

Scope of Accreditation for the Virginia Department of Forensic Science Breath Alcohol Laboratory,
ASCLD/LAB-INT'L PROGRAM (Sept. 12, 2009), available at http://www.ascld-lab.org/cert/A LI-003-C.pdf.

Scope of Accreditation for the Prince William County Police Forensic Services Section, ASCLD/LAB-INT'L
PROGRAM (Sept. 17, 2011), available at http://www.ascld-lab.org/cert/A LI-192-T.pdf.
*° Scope of Accreditation for Mitotyping Technologies, LLC, ASCLD/LAB-INT'L PROGRAM (Nov. 21, 2011),
available at http://www. ascld-lab.org/cert/A LI-025-T.pdf.

Interview by Mark Pickett with Ed Ungvarsky, supra note 12. Bode is accredited in Biology Forensic Testing.
See ANSI/ASQ NATIONAL ACCREDITATION BOARD/FQS, SCOPE OF ACCREDITATION TO ISO/IEC 17025:2005 AND
THE FBI QAS, (Feb. Z, 2013), available at http://www.bodetech.com/wp-
content/uploads/2013/02/B odeTechnologyScope-V 003.pdf.

93

4. Virginia Forensic Science Board

In 2005, the Virginia General Assembly passed legislation creating the Virginia Forensic Science
Board (Board) to oversee DFS.*! The Board elects its chairman and vice-chairman and holds at
least four meetings per year. By statute, the Board is authorized to fulfill certain
responsibilities, including but not limited to

(1) adoption of necessary administrative regulations and rules relating to the
laboratories to fulfill their statutory purpose;

(2) development or elimination of DFS programs and activities;

) development of policies, fiscal programming, and priorities based on DFS
needs;

(4) ensuring "the development of long-range programs and plans for the
incorporation of new technologies as they become available”;

(5) advising the Governor, General Assembly, and DFS Director on all matters
pertaining to DFS and forensic science;

(6) reviewing, amending and approving recommendations from the Scientific
Advisory Committee;

(7) monitoring the receipt, administration, and expenditure of all funds and
appropriations, and promulgation of operational budgeting and appropriations
requests;

(8) overseeing and annually reporting on DFS grant applications;

(9) “[m]Jonitor[ing] all contracts and agreements necessary or incidental to the
performance of [DFS] duties”; and

(10) recommending actions promoting coordination and cooperation between DFS
and the entities it serves.

In addition, each year the Board is tasked with providing a review and recommendations “to the
Chairmen of the House Committee on Appropriations, the Senate Committee on Finance, and the
Crime Commission” concerning all of the responsibilities listed above.**

31 Va. Cope § 9.1-1110 (2005). The Board is comprised of fifteen members: the Superintendent of the State
Police, the Director of the Department of Criminal Justice, the Chief Medical Examiner, the Executive Director of
the Virginia Board of Pharmacy, the Attomey General, the Executive Secretary of the Supreme Court of Virginia,
the Chairman of the Virginia State Crime Commission, the Chairman of the Board of the Virginia Institute of
Forensic Science and Medicine, two state legislators, two members of the Scientific Advisory Committee, one
Commonwealth’s Attorney, one defense attorney, and one law enforcement agent. VA. CODE ANN. § 9.1-1109(A)
(2013).

Va. CODEANN. § 9.1-1110(A)(1)-(11) (2013).

83 Va. CODEANN. § 9.1-1110(A)(1)-(11) (2013).

Va. Cope § 9.1-1110(B) (2005).

94

5. Virginia Scientific Advisory Committee

The Virginia Scientific Advisory Committee (Committee), an executive branch advisory board,
was created in 2005 to review the operations ¢ of the DFS laboratories and make recommendations
on the quality and timeliness of its services. The Committee consists of thirteen members who
serve four year staggered terms.*° The Committee meets at least twice a year in Richmond as
directed by the Governor or the Forensic Science Board.*” The Committee elects its own
chairman and is staffed by DFS.**

Upon request by the DFS Director, the Forensic Science Board, or the Governor, the Committee
“review[s] analytical work, reports, and conclusions of scientists employed by the Department,”
and will recommend to the Board “a review process for the Department to use in instances where
there has been an allegation of misidentification or other testing error made by the Department
during its examination of evidence.” The Committee also reviews and makes
recommendations on new or existing scientific programs, testing protocols, and scientist
qualification standards,“

B. Virginia’s Medicolegal Death Investigations System

Virginia instituted a centralized state medical examiner system as its system of medicolegal
death investigation in 1946 when the General Assembly abolished the Office of Coroner’s
Physician and appointed a Chief Medical Examiner."! In 1950, the Office of the Chief Medical
Examiner (OC ME) became a division within the Virginia Department of Health. be

Virginia has four OCME offices that serve the entire Commonwealth of Virginia."? The OCME
Central Office, out of which the Chief Medical Examiner works, and its facilities are located in
Richmond, Virginia, with three satellite offices and facilities located throughout the
Commonwealth: Manassas (Northern District), Norfolk (Tidewater District), and Roanoke
(Western District).“* Each office and facility is staffed by “board certified forensic pathologists,
death investigators, administrative and morgue personnel,” and possesses adequate physical

%® Va. CODE ANN. § 9.1-1113(A) (2013).
36 Va. CopE ANN. § 9.1-1111 (2013). Committee members include the DFS Director and twelve additional
persons, each appointed by the Govemor, who are forensic scientists, laboratory directors, and members of national
and intemational forensic science institutions. Id.

Va. CODEANN. § 9.1-1112 (2013).
38 Id.
Va. CopEANN. § 9.1-1113(C) (2013).
40 Va. CopE ANN. § 9.1-1113(B) (2013).
U.S, DEP’T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT ON
MED. EXAM’RS AND CORONERS’ OFFICES, 2004 1 (June 2007), available at
http: /www.bjs.gov/content/pub/pdf/meco04.pdf.

Va. Dep’T OF HEALTH, OFFICE OF THE CHIEF MED. EXAM’R, OFFICE OF THE CHIEF MEDICAL EXAM’R’S ANNUAL
REPORT, 2011, at 11 (Dec. 2011) [hereinafter OCME 2011 ANNUAL Revoen

Office of the Chief Medical Examiner, DEP’T OF HEALTH,
http: //www.vdh.state.va.us/medExam/A boutM edExaminer.htm (last visited res 19, 2013).
“4 Va. CODE ANN. § 321-277 (2013).

95

facilities for medicolegal death examinations and investigations. ® In 2011, the OCME
investigated 5,670 deaths, which is 9.4% of the “estimated total deaths in Virginia and sixty-
eight percent of the total number of deaths reported to the OCME, 8,262.”4°

1. Qualifications and Appointment of Medical Examiners

Virginia requires the Commonwealth’s Chief Medical Examiner (C ME), who is appointed by the
Commissioner with the approval of the Board, to be a forensic pathologist licensed to practice
medicine in the Commonwealth.” Assistant chief medical examiners who work in the OCME
are also forensic pathologists licensed to practice medicine in Virginia.

The CME also appoints local medical examiners who must maintain a valid Virginia license as a
doctor of medicine or osteopathy and a valid Virginia driver’s license or one from a contiguous
state.® Each Virginia county or city will be appointed one or more local medical examiner.”
There are more than 230 local medical examiners who conduct medicolegal death investigations
and “serv[e] as the principal case investigators in their localities for deaths falling within their
jurisdiction and statutory authority.”°° Local medical examiners serve three-year terms of office
beginning on October 1st of the appointment year; vacancies are filled by the CME to serve the
remainder of the unexpired term.

2. Powers and Duties of Medical Examiners

Local medical examiners receive initial notifications of death and determine whether the death
falls under the jurisdiction of the medical examiner.” Responsibilities of the local medical
examiners include information gathering, external examinations of bodies, collection of
toxicology samples, and signing certificates of death in medical examiner cases.°* Local medical
examiners, pursuant to “professionally established guidelines,” also “refer certain classes of
cases for more intensive death investigation and medicolegal autopsy, which includes both an
internal and external examination.”

‘5 District Offices/Contact us, VA. Dep’T OF HEALTH, http://www.vdh.state.va.us/medExam/C ontactUs.htm (last

visited Aug. 19, 2013); VA. CODE ANN. § 32.1-277 (2013) (requiring “adequate professional, technical and medical
investigative personnel and physical facilities”).

‘© OCME 2011 ANNUAL REPORT, supra note 42, at 21.

“7 Va. CODEANN. § 32.1-278 (2013).

“8 Va. CODE ANN. §§ 32.1-280, 32.1-282(B) (2013); Become a Local Medical Examiner, VA. DEP’T OF HEALTH,

http://www.vdh.state.va.us/medE i icalexaminer.htm (last visited Aug. 19, 2013).

‘9 Va. CODE ANN. §§ 32.1-280, 32.1-282(B) (2013). See also Va. CopDEANN. § 32.1-281 (2013) (authorizing the
Chief Medical Examiner to employ additional qualified patt fists to assist in i igating any death or
erforming any autopsy).

 OCME 2011 ANNUAL REPORT, supra note 42, at 9; Office of the Chief Medical Examiner, VA. DEP’T OF
HEALTH, http://www. vdh.state. va.us/medExam/A boutM edExaminer.htm (last visited Aug. 19,, 2013).
Va. CODEANN. § 32.1-282(A), (B), (D) (2013).
2 OCME 2011 ANNUAL REPORT, supra note 42, at 11.
Id.
old.

96

A local medical examiner is required to be notified of any death of a person from

. trauma, injury, violence, poisoning, accident, suicide or homicide, or

. suddenly when in apparent good health, or

. when unattended by a physician, or

. injail, prison, other correctional institution or in police custody, or

. who is a patient or resident of a state mental health or mental retardation
facility, or

6. suddenly as an apparent result of fire, or

7. inany suspicious, unusual or unnatural manner, or

8. the sudden death of any infant less than eighteen months [due to SIDS] =

OPRWNE

After receiving the body, the local medical examiner will fully investigate the surrounding facts
and circumstances to determine the cause and manner of death and will promptly produce a
written report to the OCME.*° Such reports are confidential and are not “disclosed or made
available for discovery pursuant to a court subpoena or otherwise, except” under certain
circumstances, although the OCME may release the cause or manner of death and disclose
reports or findings to the parties in a criminal case.°’ The Virginia Code mandates that the
OCME is responsible for investigating and determining the cause and manner of all deaths “that
occur in Virginia suddenly and unexpectedly, while unattended by a physician, violently, under
suspicious circumstances, or in law enforcement custody.”

3. Accreditation of Medical Examiner Offices and Certification of Medical Examiners,
and Medicolegal Death Investigators

Virginia does not require medical examiner offices to be accredited. However, each of the four
offices of the Virginia Office of the Chief Medical Examiner has obtained voluntary
accreditation through the National Association of Medical Examiners (NAME).°? NAME is the
primary accrediting entity for medical examiner offices. As of June 2013, all four OCME
offices have full accreditation.®! In addition, the OCME reports that its medical examiners are
certified by the American Board of Pathology, and its investigators certified by the American
Board of Medicolegal Death Investigators.

58 Va. CODE ANN. § 32.1-283(A) (2013).

58 Va. CODE ANN. § 32.1-282(B) (2013).

57 Va. CODE ANN § 32.1-282(B)-(C) (2013).

58 OCME 2011 Annual Report, supra note 42 at 8; VA. CODE ANN. § 32.1-283 (2013)

Organization Directory Search Results, NAT'L ASS’N OF MED. EXAM’RS,
https://netforum.avectra.com/eweb/D ynamicPage.aspx?Site=NAME&WebCode=OrgSearch (for “State/Territory”
select “VA”; check “NAME Accredited” box; then follow “Search” hyperlink) (last visited June 26, 2013).

80 2009 NAS Report, supra note 1, at 258 (“Currently, the standard for quality in death investigation for medical
examiner offices is accreditation by NAME”); see also NAT’L Ass’N OF MED. EXAM’RS, PRELIMINARY REPORT ON
AMERICA’S MEDICOLEGAL OFFICES, NAT’L INST. OF JUSTICE FORENSIC SuMMir 1 (May 18-19, 2004), available at
https://www.ncjrs.gov/pdffiles! /nij/grants/213421.pdf.

; Organization Directory Search Results, NAT’L ASS’N OF MED. EXAM’RS,
https://netforum.avectra.com/eweb/D ynamicPage.aspx?Site=\NAME&WebCode=OrgSearch (for “State/Territory”
select “WA”; check “NAME Accredited” box; then follow “Search” hyperlink) (last visited Aug. 19, 2013).

8 OCME 2011 Annual Report, supra note 42, at 11-12.

97

a. National Association of Medical Examiner Accreditation

NAME accreditation “attests that an office has a functional governing code, adequate staff,
equipment, training, and a suitable physical facility and produces a forensically documented
accurate, credible death investigation product.”* A NAME applicant must perform a self-
inspection using the NAME Accreditation Checklist,“ file an application, and undergo an
external inspection to evaluate whether the facility meets the NAME Standards for
Accreditation.

The external inspection is conducted by a NAME inspector, who “systematically examine[s] in
detail each question on the Inspection Checklist with the chief medical examiner . . . or his or her
representative.”™ The checklist contains a series of questions designated as “essential” or “non-
essential” criteria.°’ An inspector's report concludes with a recommendation for full
accreditation, provisional accreditation, or non-accreditation. In order to obtain full
accreditation, the applicant may not have more than fifteen “non-essential” criteria deficiencies
and may not have any “essential” criteria deficiencies. Full accreditation is conferred for a
period of five years.”

b. American Board of Medicolegal Death Investigators

The American Board of Medicolegal Death Investigators (ABMDI) is a voluntary, independent
professional certification board.’’ ABMDI’s certification program ensures that medicolegal
death investigators “have proven knowledge and skills necessary to perform medicolegal death
investigations as set forth in the National Institute of Justice 1999 publication Death
Investigation: A Guide for the Scene Investigator.”””

ABMDI has two certification levels: “Registry Diplomate” and “Board Certified Fellow.”” In
order to obtain ABMDI certification, investigators must pass a multiple choice and a practical
examination, as well as complete 640 hours of death investigations for Registry Diplomate Status

8 Id.
®4 Nat’ Ass’N OF MED. EXAM’RS, NAME INSPECTION AND ACCREDITATION CHECKLIST, SECOND REVISION, 2, 4
(2009), available at —http://tt org/index.php?option=com_docmané&task=cat_view& gid=45&Itemid=26
{hereinafter NAME ACCREDITATION CHECKLIST].
© NaT’L Ass’N OF MED. EXAM’RS, INSPECTION & ACCREDITATION POLICIES AND PROCEDURES MANUAL 61-66
(July 2009), available at http://tt org/index.php?option=com_docman&task=cat_view& gid=45&Itemid=26
{hereinafter NAME Manual].

Id. at 65.

AM. BD. OF MEDICOLEGAL DEATH INVESTIGATORS, http://medschool.slu.edu/abmdi/index.php (last visited Aug.
19,, 2013). In 2005, ABMDI received accreditation from the Forensic Specialties Accreditation Board. FORENSIC
SPECIALTIES ACCREDITATION BD. , http://www.thefsab.org/ (last visited Aug. 19, 2013).

Am. BD. OF MEDICOLEGAL DEATH INVESTIGATORS, http: index.php (last visited Aug.
19, 2013). The Forensic Specialties Accreditation Board is “a a ea whereby the forensic community can
assess, recognize and monitor organizations or professional boards that certify individual forensic scientists or other
forensic specialties.” Id.
Id.

98

and 4,000 hours of death investigations to achieve Board Certified Fellow status.” Additionally,

certified investigators must complete forty-five hours of approved continuing education each
75

year.

Currently, thirty-seven Virginia medicolegal death investigators, only five of whom are not
employed at the Virginia Office of the Chief Medical Examiner, have been certified as ABMDI
Registry Diplomates and one investigator has obtained ABMDI Board Certified Fellow status. °

7 Registry Certification (Basic), AM. BD. OF MEDICOLEGAL DEATH _ INVESTIGATORS,
http: .slu.edu/abmdi/index.php?page=registry-certification-basic (last visited June 28, 2013); Board
Certification (Advanced), AM. Bb. OF MEDICOLEGAL DEATH INVESTIGATORS,
http: dschool.slu.edu/abmdi/index.php?page=board-certification-advanced (last visited June 28, 2013).

i Registry Certification (Basic), AM. BD. OF MEDICOLEGAL DEATH _ INVESTIGATORS,
http: L.slu.edu/abmdi/index.php?page=registry-certification-basic (last visited June 28, 2013); Board

Certification Advanced), AM. BD. OF MEDICOLEGAL DEATH INVESTIGATORS,
http: dschool i/index.php?page=board-certification-advanced (last visited June 28, 2013).

8 Registry ‘ilontes AM. Bb. OF MEDICOLEGAL DEATH INVESTIGATORS,
http: I i/index.php?page=registry-database (under “Search by State” select “Virginia”; then

follow “Search” hyping (last Visited | June 26, 2013); Board Certified Fellows, AM. BD. OF MEDICOLEGAL DEATH
INVESTIGATORS, http: di/index.php?page=board-dip! (under “Search by State” select
“Virginia”; then follow “Search” rer (last visited June 26, 2013).

99

Il. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team’s
analysis of the Commonwealth's compliance with the Protocol and, where appropriate, the
Assessment Team's rec dations for reform.

A. Protocol #1

Crime laboratories and medical examiner offices should be accredited,
examiners should be certified, and procedures should be standardized and
published to ensure the validity, reliability, and timely analysis of forensic
evidence.

Accreditation means “that a laboratory adheres to an established set of standards of quality and
relies on acceptable practices within these requirements.””” As explained in the 2009 National
Academy of Sciences Report on Forensic Science (NAS Report), “[IJaboratory accreditation and
individual certification of forensic science professionals should be mandatory” and all forensic
laboratories should “establish routine quality assurance and quality control procedures to ensure
the accuracy of forensic analyses and the work of forensic practitioners.”

Crime Laboratories

Virginia does not currently require the accreditation of crime laboratories; however, all four
laboratories within the Virginia Department of Forensic Science (DFS) have voluntarily obtained
accreditation by the American Society of Crime Laboratory Directors/Laboratory Accreditation
Board (ASCLD/LAB) under its International Accreditation Program.”

ASCLD/LAB accreditation requires formal written policies and procedures to ensure the
validity, reliability, and timely analysis of forensic evidence, and it appears DFS maintains such
guidelines. Specifically, the DFS laboratories have formal written procedures providing for the
proper method of collecting and storing various biological evidence, as well as for maintaining
the chain of custody and handling of such evidence.®° Such guidelines and procedures exist for
the initial collection and storage of evidence for criminal cases, as well as for post-conviction
retention and preservation pursuant to the Virginia Code.*! DFS also has published written

7 2009 NAS RepPorr, supra note 1, at 195 (also recognizing that “accreditation does not mean that accredited

laboratories do not make mistakes, nor does it mean that a laboratory utilizes best practices in every case”).

7 2009 NAS Report, supra note 1, at 215.

7 See Accredited Laboratories, AM. Soc’y OF CRIME LAB. Dirs./LAB. ACCREDITATION Bp. (ASCLD/LAB),
http: //www.ascld-lab.org/accredited-laboratory-index/ (last visited Aug. 19,, 2013).

Va. DEpP’T OF FORENSIC Scl., EVIDENCE HANDLING & LABORATORY CAPABILITIES GUIDE (Feb. 2010),
available at http://www.dfs. virginia, gps/servigas/evidencehantling/videnceGuid pdf; CONTROLLED SUBSTANCE:
MANUALS, Va. Dep” ae FORENSIC ScL.
http://www.dfs. virginia. gov/ ontrolled: ind cfm?id '=3&crumbs=4 (last visited Aug. 19, 2013);
HUMAN BIOLOGICAL EVIDENCE, VA, DeEpP’T OF FORENSIC Sci. (2001), available at
http: cow dfs. virginia. gov/services/forensicB iology/inventoryOfBiologicalEvidencelnPossessionOfClerk.pdf

See Post-C onviction DNA Issues, VA. DEP’T OF FORENSIC ScL,
http://www.dfs. virginia. gov/servic I .cfm (last visited June 26, 2013).

100

procedures for the proper sterilization and calibration of equipment used during forensic testing,
proper forensic testing techniques for biological and other types of evidence, and documentation
requirements for all aspects of forensic analysis.®* In addition, DFS maintains and has published
training manuals for each of the disciplines in which DFS provides forensic testing and
analysis.

Virginia’s crime laboratories should be commended for obtaining ASCLD/LAB-International
accreditation. The ASCLD/LAB-International Program has no optional requirements for quality
management systems and technical operations of laboratories. Instead, each requirement must be
met for accreditation.** The International Program also requires an annual surveillance visit,
during which “any issues that may have come to the attention of ASCLD/LAB and/or
requirements selected by ASCLD/LAB are reviewed.”

ASCLD/LAB accreditation uses a peer review system to determine whether to confer
accreditation on a particular laboratory. The ASCLD/LAB Board of Directors, a group of fellow
laboratory directors from other ASCLD/LAB-accredited laboratories, will make final
accreditation decisions.®° While a peer review system is not per se unreliable, an external state-
based oversight commission could further ensure the impartiality of the accreditation process. °”

Additionally, all crime laboratory systems should be monitored by an independent external
organization dedicated to ensuring the validity, reliability, and timely analysis of forensic
evidence. Virginia has created two oversight commissions that review actions of the
Commonwealth’s crime laboratories. For example, the Virginia Scientific Advisory Committee
was created and authorized to, upon request, “review analytical work, reports, and conclusions of
scientists employed by the Department,” and recommend to the Virginia Forensic Science Board
“a review process for the Department to use in instances where there has been an allegation of

82 See, e.g., VA. DEP’T OF FORENSIC SCI., CONTROLLED SUBSTANCES PROCEDURES MANUAL (Feb. 6, 2012),

available at http://www.dfs. virginia. gov/ 221-

D100%20C. led%20Sul 20P il 20Manual.pdf; VA. DEP’T OF FORENSIC SCI, TOXICOLOGY

EROGED URES MANUAL _ (Sept. 19, 2011), available at
://www.dfs. virginia. gov/ i al 220-

PINON Tr sl pie oe mootine Nana. pdf.

83 See, e. g., VA. DEP’T OF FORENSIC SCI., CONTROLLED SUBSTANCES TRAINING MANUAL (Feb. 2, 2009), available
at http://www.dfs. virginia.gov/manuals/controlledSubstances/training/221-
D200%20C ontrolled% 20Substances% 20Training%20Manual.pdf; Va. Dep't OF FORENSIC Sci, TOXICOLOGY
TRAINING MANUAL (Oct. 1, 2010), available at http://www.dfs.virginia.gov/manuals/toxicology/training/220-
D200%20Toxicology%20Training% 20M anual.pdf.

84 ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 21, at 13-14.

85 ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 21, at 24-25; 2009 NAS Report, supra note 1, at 199.

8° See Janine Arvizu, Shattering The Myth: Forensic Laboratories, 21 CHAMPION 18 (2000). Furthermore,
while Lead Assessors or Inspectors conducting the requisite site-assessments are usually ASCLD employees,
occasionally the Lead Assessor may be a volunteer from the ASCLD/LAB Delegates Assembly, which is also
comprised of the ASCLD/LAB-accredited laboratories’ directors. Id. (“This peer-to-peer composition of ASCLD
Inspectors creates the potential for conflicts in the close-knit forensic community. If an Inspector is perceived as
being too rough on a laboratory, it could limit his or her career opportunities at sister laboratories. Or consider the
fact that representatives from the laboratory that I audit today may show up on my doorstep next month to audit my
laboratory.”); ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 21, at 12-14.

’  Arvizu, supra note 86, at 26.

85 2009 NAS Report, supra note 1, at 213.

101

misidentification or other testing error made by the Department during its examination of
evidence.”

Finally, the 2009 NAS Report on forensic science also recommended that “[s]cientific and
medical assessment conducted in forensic investigations should be independent of law
enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal
act has indeed been committed.” Although DFS’s mission is “to protect the public’s safety,
support law enforcement and the judiciary, and advance the growth and understanding of
forensic science,” and there are statutory requirements on capital defenders and death row
inmates to obtain testing from the DFS in certain circumstances, DFS does not regularly serve
the Commonwealth’s public defense or capital defense systems.°! Instead, DFS “serv[es] all
state and local law enforcement agencies, medical examiners, and Commonwealth’s Attorneys in
Virginia.”®? Indigent defense service providers in Virginia—for example, the Capital Defender
Offices—routinely send biological evidence to out-of-state private crime laboratories, thereby
expending additional state resources on forensic analysis. In addition, the Prince William
County forensic laboratory is operated by local law enforcement and employs commissioned law
enforcement officers to conduct forensic analysis.™*

ASCLD/LAB Inspection of DFS Central Laboratory

In recent years, incidents have exposed major DFS errors that suggest problems with the
Department’s testing and oversight procedures. For example, in the case of Earl Washington,
who was sentenced to death and served seventeen years in prison for a rape and murder that
evidence later demonstrated he did not commit, the laboratory’s leading DNA analyst incorrectly
identified a phantom DNA profile, and the laboratory’s technical reviewer missed the error.°° It
was not until then-Governor Mark Wamer ordered re-testing of DNA evidence over strong
protests from the DFS Director that the error was discovered.®° Notably, the analyst who
committed the error was later promoted to become the Laboratory Director of DFS’s Central
Lab.

® Va. CODE ANN. § 9.1-1113(C) (2013).

5° 2009 NAS Report, supra note 1 at 23 (“Administratively, this means that forensic scientists should function
ind dently of law enf The best science is conducted in a scientific setting as opposed to
a law enforcement setting.”). Id.

S| Va. DEp’T OF FORENSIC SCL, STRATEGIC PLANNING REPORT (2010-2012), available at
http: //vaperforms. virginia. gov/agencylevel/stratplan/spreport.cfm?A gencyC ode=778&salist=none.

® Home, VA. DEP’T OF FORENSIC SCL, http://www.dfs. virginia. gov/index.cfm (last visited Aug. 19, 2012).
Interview with Ed Ungvarsky, supra note 12.

See Forensic Services Bureau, PRINCE WILLIAM Cnty. POLICE DEP’T,
http://www.pwcgov.org/government/dept/police/careers/Pages/Forensic-Services-B ureau.aspx (last visited Aug. 19,
2013).

93
4

Historic Audit of Virginia Crime Lab Errors in Earl Washington Jr.'s Capital Case, INNOCENCE PROJECT,
available at
http://www .innocenceproject.org/Content/Historic_Audit_of_Virginia_Crime_Lab_Errors_in_Earl_Washington_Jrs
gC apital_Case.php (last visited Aug. 19, 2013).

Id.
*” Contact Us, Va. DEP’T. OF FORENSIC SCl., available at http://www.dfs.virginia.gow/about/contact.cfm (last
visited Aug. 19, 2013).

102

Medical Examiners

Virginia does not require medical examiner offices to be accredited. However, all four of the
district medical examiner offices, including the Office of the Chief Medical Examiner in the
Central District, have voluntarily obtained accreditation through the National Association of
Medical Examiners (NAME).

NAME accreditation requires all medical examiners to be board-certified pathologists by the
American Board of Pathology. In addition Virginia requires its Chief Medical Examiner to be a
forensic pathologist licensed to practice medicine and requires its assistant medical examiners to
be licensed to practice medicine.°?

Further, all four medical examiner offices currently employ pathologists who are board-certified
by the American Board of Pathology." The OCME also employs forensic pathologists and
medicolegal death investigators who are Registered Diplomates by the American Board of
Medicolegal Death Investigators (A MBD1).'”!

Each of Virginia’s medical examiner offices appear to have instituted the policies and procedures
required by NAME to help ensure the validity, reliability, and timely analysis of forensic
evidence. For example, in order to receive accreditation, each of the medical examiner offices
must have an effective quality assurance program, maintain all files in both digital and hard
copy, ensure that the pathologist who conducts the death investigation maintains the case
throughout the legal process for consistency, and maintain policies and procedures for
investigations of reportable deaths. 1

Conclusion

Virginia appears to be in full compliance with Protocol #1. While Virginia does not currently
require its crime laboratories and medicolegal death investigation offices to be accredited, the
Virginia Assessment Team commends all Virginia crime laboratories and medical examiner
offices for obtaining voluntary accreditation. The General Assembly has also created an
independent oversight board for crime laboratories and medical examiners.

%8 Organization © Directory © Search _—Results, © NAT’L ASS’N. OF  MeD. — EXAM’RS,

https://netforum.avectra.com/eweb/D ynamicPage.aspx?Site=\NAME&WebCode=OrgSearch (for “State/Territory”
select “VA”; check “NAME Accredited” box; then follow “Search” hyperlink) (last visited Aug. 19, 2013).

99 NaT’L Ass’N OF MED. EXAM’RS, FORENSIC AUTOPSY PERFORMANCE STANDARDS 10, available at
https://netforum.avectra.com/temp/ClientImages/NA ME/eed6c85d-5871-4dal-aef3-abfc9bb80b92.pdf; Va. CopDE
ANN. §§ 32.1-278, 32.1-282 (2013).

° Marge Weimer, We're in good hands: Virginia's Medical Examiner sets nationwide standard, RVA News
(Va), Nov. 19, 2009, http://rvanews.com/features/were-in- good-hands- virginia- medical-examiner-sets-nationwide-
standard/23281 (last visited Aug. 19, 2013).

11 Registry Diplomates, AM. BD. OF MEDICOLEGAL DEATH INVESTIGATORS, http://www.abmdi.org/?page=registry-
database (under “Search by State” select “Virginia”; then follow “Search” hyperlink) (last visited Aug. 19, 2013).
12 NAME ACCREDITATION CHECKLIST, supra note 64.

103

B. Protocol #2
Crime laboratories and medical examiner offices should be adequately funded.
Proper funding is needed to ensure that crime laboratories, medical examiner offices, and county
coroner offices maintain the equipment needed to develop accurate and reliable results, and to
hire and retain a sufficient number of competent forensic scientists and staff to timely analyze
forensic evidence.

Sources of Crime Laboratory Funding

Virginia’s Department of Forensic Science’s primary source of funding is General Assembly
appropriations, In 2012, DFS received $35,816,108 from the General Assembly.'° Table 2,
below, lists Commonwealth appropriations to DFS since 2007.

Table 2™
Year | LawEnforcement | Biological Chemical Physical | Training and | Administrative
Scientific Support | Analysis Analysis Evidence Standards Services
Services (TOTAL) Services Services Services Services
2007 | $32,369,979 $10,570,705 | $6,994,181 $8,267,727 | $573,005 $5,964,361
2008 33,861,990 10,285,115 | $6,994,181 38,267,727 | $573,005 7,741,962
2009 37,209,975 10,535,958 | $8,177,068 9,386,087 | $724,133 8,386,729
2010 40,088,957 12,056,253 | $8,375,043 9,386,087 | $724,133 9,547,441
2011 35,816,108 $9,526,820 | $8,396,007 6,348,800 | $1,208,506 10,335,975
2012 35,758,586 $9,526,820 | $8,338,833 6,348,800 | $1,208,506 10,335,627
2013 38,041,713 10,554,982 | $10,863,352 7,136,946 | $1,501,148 7,985,285
2014 | $37,757,875 $10,563,330 | $10,871,931 $6,836,757 | $1,501,148 $7,984,709

In addition to state appropriations, federal grant programs provide funding to Virginia’s DFS
laboratories. Virginia has received funds from the NIJ’s Paul Coverdell Forensic Sciences
Improvement Grant Program (Coverdell) for distribution to DFS and the Office of the Chief
Medical Examiner (OCME).! Coverdell is a federal program that seeks to improve the quality
of, and reduce backlogs in, forensic evidence analysis.‘ In 2011, for example, Virginia
received $486,154 under Coverdell, which was used by DFS for “discipline specific training,
software, equipment, and instrumentation to improve the quality and timeliness of forensic

13 HB. 1500, Item 396, 2010 Sess. (Va 2010), available at http://lis.virginia.gov/cgi-
bin/legp604.exe?111+bud+21-396+pdf.

HB. 1500, Item 405, 2012 Sess. (Va 2012), available at _ http://lis.virginia.gow/cgi-
Din/legp604.exe?122+bud+21-405+pdf; H.B. 1500, Item 396, 2010 Sess. (Va. 2010), available at
http://lis. virginia. gov/cgi-bin/legp604.exe?111+bud+21-396+pdf; H.B. 1500, Item 408, 2008 Sess. (Va. 2008),
available at http://leg1 state. va.us/cgi-bin/legp504.exe?091+bud+21-408+pdf; H.B. 1500, Item 402, 2006 Sess. (Va.
2006), available at http://leg! .state.va.us/cgi-bin/legp504.exe?071+bud+21-402-+pdf.

15 FY2011 Paul Coverdell Forensic Science Improvement Grants Program Abstracts, NAT’L Inst. OF JUSTICE,
available at http://nij.gov/nij/topic: lab- apacity/nfsia/fy2011-paul-coverdell -science-
improvement-grant-abstracts. pdf (last visited Aug. 19, 2013).

106" 42 U.S.C. § 3797); see also Coverdell Forensic Science Improvement Grants Program, NAT’L INST. OF JUSTICE,

http://www.nij.gov/topics/forensics/lab- ‘welcome.htm (last visited Aug. 19, 2013); Fiscal
Year 2010 Report on the Paul Coverdell Forensic Science Improvement Grants Program, NAT’L INST. OF JUSTICE,
http://www.nij.gov/nij/topics/f capacity/nfsia/2010-report.htm (last visited Aug. 19, 2013).

104

services,” and the OCME “to increase the number of qualified trained forensic pathologists in
Virginia and the United States to improve the quality, thoroughness, and timeliness of death
investigation, ... forensic autopsies, and evidence collection.”'”” Between 2006 and 2012,
Virginia received over $2.4 million in grants under the Coverdell program.'

NIJ also provided the Commonwealth of Virginia with $1,490,250 in 2004 under the Virginia
Forensic Laboratory Improvement Program.’ The Chesterfield County Police Department was
also given $86,315 by NIJ in 2008 to hire a forensics logistics technician, to provide training and
continuing education, and to purchase two digital cameras.'"° In 2006, the Fairfax County Police
Department was awarded $94,435 of federal funds “for computer equipment upgrades, software
acquisition, and enhanced training opportunities.”'"! Federal grants for DNA backlog reduction
have also been awarded to Virginia, discussed in Chapter Three of this Report.

Adequacy of Crime Laboratory Funding

More than twenty years ago, Virginia had 160,000 blood samples awaiting analysis.'’? Since
then, the state’s DNA database has grown from about 26,000 samples to more than 300,000, and
the state now averages about 700 hits a year against the database, according to state records. '!
According to a report in 2009, Virginia, which was one of the first states to mandate arrestees to
provide DNA samples, had “no arrestee sample backlog” due to DFS’s ability to “handle
samples from wide swaths of the population where the arrestee samples are prioritized so they
can be analyzed before a suspect is released.”'!* As of 2012, there is reportedly no backlog of
data bank samples. !"°

‘07 FY2011 Paul Coverdell Forensic Science Improvement Grants Program Abstracts, supra note 105, at 72.
18 The total grant funding from 2006-2012 was $2,491, 816. 00. See Backlog Reduction Funding Awards, 2004
2010, NAT’L INST. OF JuSTIcE, http://nij.gov/nij/tor idence-backlogs/backlog-
reduction-funding.htm (last visited Aug 19, 2013); FY2011 Paul Coverdell Forensic Science Improvement Grants
Program Abstracts, supra note 105 at 72; FY2012 Paul Coverdell Forensic Science Improvement Grants Program
Abstracts, NaT’L INST. oF Justice 44, available at — http://nij.gov/nij/topics/forensics/lab-
operations/ ‘capacity/nfsia/fy2012-paul-coverdell-forensic-science-improvement- grant- abstracts.pdf.

Fiscal Year 2004 Awards, NAT’L. INsT. OF JUSTICE, http://www.nij.gov/nij/funding/awards/2004.htm (last
visited Aug. 19, 2013).
40 FY2008 Coverdell Report to Congress Funding Table, Nat’. INst. oF Justice, available at

http: //nij .gov/nij/topic ics/lab- fsia/2008-funding-table.xls.
1" FY2006 Coverdell Report to Congress Funding Table, Nat’L INst. oF Justice, available at
http: //nij .gov/nij/topic ics/lab- capacity/nfsia/fy06-coverdell-funding.xls.

Dave Altimari & Matthew Kauffman, Evidence on Hold, HARTFORD CouRANT (Conn.), Jan. 30, 2010,
http://articles.courant.com/2010-01-30/news/hc-connecticut-dna-crime-lab-0130_1_dna-samples-dna-evidence-
databank/2 (last visited Aug. 19, 2013).

Id

‘4 Ben Protess & Emily Witt, Law Enforcement Agencies Still Struggling to Reduce DNA Backlog, DNA Tracker:
Crime Labs and Their DNA Backlog, PROPuBLICA (Sept. 8, 2009), http://www.propublica.org/special/dna-tracker-
crime-labs- and-their-dna-backlog-724 (last visited Aug. 19, 2013).

18 Id. Forensic DNA Backlog Reduction Program: Fiscal Year 2012 Awards and Abstracts, U.S. DEP’T OF
Justice, 85 (2012), available at http://www.nij.gov/nij/topics/forensics/lab- idence-backlogs/dna-
backlog-reduction-abstracts-fy12.pdf.

105

Since DFS laboratories have eliminated the backlog of DNA samples and are no longer seeking
to increase the capacity of the laboratory system, it appears that the funding of the
Commonwealth’s DFS laboratories conducting biological forensic analysis is adequate.

Forensic toxicologists from the DFS Toxicology Section also assist the Commonwealth’s
medical examiners in the determination of cause and manner of death, including by “advis[ing]
the Medical Examiners and trial courts on the significance of the substance in causing or
contributing to the death.”!!© While there is no backlog of DNA samples, there is backlog at
DFS laboratories comprised mostly of toxicology and drug cases. '!” Virginia employs only
four toxicologists and one trainee within DFS."!® When the U.S. Supreme Court ruled that
toxicologists may be subpoenaed by defendants,'"® toxicologists began spending more time in
court and the backlog at DFS grew for cases involving drugs or alcohol.'”° New policies of
consolidating days of testimony have helped relieve some of the burden, but the backlog of
toxicology cases has “started to creep up again.” Thus, it appears that funding for the
toxicology sections of the Commonwealth’s DFS laboratories is inadequate.

Medical Examiner Funding
Sources of Funding

The Office of the Chief Medical Examiner (OCME) is primarily supported by Virginia General
Assembly biennial appropriations. Table 3, below, sets out the appropriations for fiscal years
2008 through 2014 for the OCME, listed by medical examiner and anatomical services.

Table 3”
Virginia General Appropriations for OCME, in dollars

Year Anatomical Services Medical Examiner Services Total

2008 196,707 7,325,064 7,521,771

2009 210,785 8,022,571 $8,233,356

2010 210,785 8,681,022 8,891,807

2011 450,000 $9,536,075 $9,986,075

2012 450,000 $9,833,555 10,283,555

2013 451,431 $9,977,487 10,428,918

2014 451,431 $9,977,487 10,428,918
46 Forensic Toxicology, va. Dep’T OF FORENSIC ScL,
http://www.dfs. virginia. gov/servic icToxicology/index.cfm (last visited Aug. 19, 2013).

7" See Dena Potter & Larry O’Dell, Va. Forensic Examiners Spending More Time in Court, AP ALERT, Aug. 12,
2009; DFS Update: Managing the Drug Case Workload, Presentation by Linda Jackson, Chemistry Program
Manager, Va. Dep’t of Forensic Sci., to Va. State Crime Commission (Oct. 3, 2012), available at
http://vscc.virginia.gov/documents/2012/dfs_update.pdf.

18" Potter and O'Dell, supra note 117.

9" See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

120 Potter and O'Dell, supra note 117.

"1. Deborah Elkins, Many Subpoenas, Few Court Appearances, Virginia Department of Forensic Science Says,
Va. LAWYERS WEEKLY, Oct. 5, 2012.

12 HB. 1500, Item 291, 2012 Sess. (Va 2012), available at http://lis.virginia.gov/cgi-
Din/legp604.exe?122+bud+21-291+pdf; H.B. 1500, Item 282, 2010 Sess. (Va. 2010), available at
http://lis. virginia. gov/cgi-bin/legp604.exe?111+bud+21-282+pdf; H.B. 1500, Item 291, 2008 Sess. (Va. 2008),
available at http://leg1 state. va.us/cgi-bin/legp504.exe?091 +bud+21-291+pdf; H.B. 1500, Item 287, 2006 Sess. (Va.
2006), available at http://leg! .state.va.us/cgi-bin/legp504.exe?07 1 +bud+21-287 +pdf.

106

In addition, the 2012-2014 budget contemplates additional funds for capital projects that support
the expansion of the Western Virginia Forensic Laboratory and Office of the Chief Medical
Examiner Facility.'”

The OCME is also supported by funding from NIJ, including funds from the Coverdell Grant
Program described above.’ For example, the 2012 Coverdell Grant Program provided
$185,297 of funding to both DFS and the OCME, which used the funding “to improve the
quality, thoroughness, and timeliness of death investigation by increasing the number of
qualified trained forensic pathologists in Virginia and the United States. This also improves the
competent performance of forensic autopsies and evidence collection.” 5

In addition, in 2008, the Virginia Institute for Forensic Science received $981,178 from the
Bureau of Justice Statistics to create a Forensic Pathology Fellowship Recruitment and Training
Program that provided education and training on forensics and DNA.'”° In 2007, NIJ provided
$213,697 to the Virginia Institute of Forensic Science and Medicine to develop and implement
web-based training for Virginia’s medicolegal death investigators.” In 2003, the Virginia
Department of Criminal Justice Services, the entity which formerly housed OCME and DFS,
received $88,691 of federal funds to establish two fellowships to increase the number of
qualified forensic examiners and pathologists available to perform medicolegal death
investigations.

Adequacy of Funding

In 2011, the OCME investigated 5,670 deaths, as illustrated in Table 4, below.!”°

Table 4
Central | Northern | Tidewater Western | Total
A. Deaths reported 2947 1785 1564 1966 8262
B. Cases accepted 1626 1287 1263 1494 5670
R tives (handled separately) 14 12 28 92 146
C. Manner of death:
Accident 667 555 467 652 2341
Homicide 116 38 113 78 345
Natural 520 384 424 428 1756
Suicide 297 271 207 292 1067
Undetermined 26 39 52 44 161

23 HB. 1500, Item C-39.05, 2012 Sess. (Va 2012), available at http://lis.virginia.gov/cgi-
bin/legp604.exe?122+bud+22-39.05+pdf.

"4" See supra notes 105-107 and accompanying text.

125 FY2012 Paul Coverdell Forensic Science Improvement Grants Program Abstracts, NAT’L INST. OF JUSTICE, 44-
45, available at _http://nij.gov/nij/topics/ ics/lab- ions/capacity/nfsia/fy2012-paul-coverdell-forensic-
science-improvement- grant- abstracts. pdf.

28 Fiscal Year 2008 Awards, NAT’L INST. OF JUSTICE, http://www.nij.gov/funding/awards/2008-table.htm (last
visited Aug. 19, 2013).

27 Fiscal Year 2007 Awards, NATL. INST. OF JUSTICE, http://www.nij.gov/nij/funding/awards/2007.htm (last
visited Aug. 19, 2013).

8 Fiscal Year 2003 Awards, NAT’L. INST. OF JUSTICE, http://www.nij.gov/nij/funding/awards/2003.htm (last
visited Aug. 19, 2013).

29 OCME 2011 ANNUAL REPORT, supra note 42, at 20.

107

The OCME appears to have a backlog of cases due to the previously discussed delays in
toxicology reports from DFS.'*° While the OCME appears to handle cases quickly, the offices
must often wait for test results prior to determining a cause of death.'*! However, since the
OCME?’s backlog is not due to inadequate internal staffing or equipment, it appears that the
funding for the OCME is adequate.

Conclusion

It appears that Virginia is in partial compliance with Protocol #2. While the funding for the
biological section of DFS and for OCME appears adequate, there is still a backlog of cases for
the OCME due to demands placed on the toxicology section of DFS. This is due to a shortage of
DFS personnel needed to ensure timely toxicology reports while complying with subpoenas
issued by defendants.

Recommendation
Virginia should increase DFS funding in order to employ additional qualified toxicologists. This

would reduce the backlog of cases and decrease wait time for medical examiners to determine
cause of death.

180 See supra notes 116-121 and accompanying text.
131 Potter and O'Dell, supra note 117.

108

CHAPTER FIVE
PROSECUTION
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

The prosecutor plays a critical role in the criminal justice system. Although the prosecutor
operates within the adversarial system, the prosecutor’s obligation is to protect the innocent as
well as to convict the guilty, to guard the rights of the accused, and to enforce the rights of the
public.

Because prosecutors are decision-makers on a broad policy level and preside over a wide range
of cases, they are sometimes described as “administrators of justice”. Each prosecutor has the
responsibility for deciding whether to bring charges and, if so, what charges to bring against the
accused. The prosecutor evaluates the quality of the evidence against the defendant and must
also decide whether to prosecute or dismiss charges, or to take other appropriate actions in the
interest of justice. Moreover, in cases in which capital punishment can be sought, prosecutors
have enormous discretion in deciding whether or not to seek the death penalty. The character,
quality, and efficiency of the whole system are shaped in great measure by the manner in which
the prosecutor exercises his/her broad discretionary powers. A prosecutor exercising careful
judgment serves as one of the most important checks against unfairness in death penalty cases.

Prosecutors also have an affirmative duty under the U.S. Constitution to disclose exculpatory and
mitigating evidence to the defendant, including additional materials as required by state law.'
These mules reflect the dual responsibilities of the prosecutor: while s/he must prosecute guilty
criminals, s/he also has a duty to ensure that the defendant is treated fairly. A prosecutor must
use careful judgment in determining what evidence must be disclosed or risk convicting the
innocent or execution of those underserving of a death sentence under the law.

Instances of prosecutorial negligence, error, and misconduct can affect innocent lives and society
at large. Nationwide, between 1970 and 2004, individual judges and appellate court panels cited
prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions, or
reducing sentences in at least 2,012 criminal cases, including both death penalty and non-death
penalty cases.? In addition, lack of proper training, inadequate supervision, insufficient
resources, and excessive workload affect the ability of prosecutors to carry out their duties and
responsibilities.

Solutions to the problems facing prosecutors and the causes of wrongful convictions include
adequate funding to prosecutor offices, adoption of standards to ensure manageable workloads
for prosecutors, and requiring that prosecutors scrutinize cases that rely on eyewitness
identifications, confessions, or testimony from witnesses who receive a benefit from the police or

Brady v. Maryland, 373 U.S. 83, 87 (1963).

STEVE WEINBERG, CTR. FOR PUB. INTEGRITY, BREAKING THE RULES: WHO SUFFERS WHEN A PROSECUTOR IS
CireD FOR MISCONDUCT? (2003), available at http://www.publicintegrity.org/2003/06/26/5517/breaking-rules.
Such statistics, however, underrepresent the actual extent of prosecutorial misconduct and error due to the doctrines
of procedural default and harmless error.

109

prosecution. There must also be meaningful sanctions against prosecutors who engage in
misconduct.

3 See Imbler v. Pachtman, 424 U.S. 409, 428-29 (1976) (“We hasize that the i ity of y from
liability in suits under [section 1983] does not leave the public powerless to deter misconduct or to punish that which
occurs . . . [a] prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional
tights, inhis amenability to professional discipline by an association of his peers.”).

110

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW
A. Prosecution Offices

1. Commonwealth’s A ttomeys

Each Virginia county and independent city elects its own Commonwealth’s Attorney, who serves
four-year terms.” The duties of the Commonwealth’s Attorney and his/her assistants include
prosecuting felonies, misdemeanors, and certain other violations that occur in his/her
jurisdiction.° In general, Commonwealth’s Attorneys have significant discretion to decide
whether to charge a suspect with a crime, which offense to charge, and when to file charges.°

The Virginia General Assembly has also established the Commonwealth’s Attorneys’ Services
Council (CASC) “to ensure the upgrading of criminal justice administration by providing and
coordinating training, education and services for attorneys for the Commonwealth.”’ CASC
offers several training programs to Virginia’s Commonwealth’ Attorneys every year.®

2. Virginia A ttomey General

The Virginia Office of the Attorney General represents the Commonwealth on capital criminal
appeals and during habeas corpus proceedings, as well as other post-conviction litigation related
to death penalty cases.°

B. The Virginia Rules of Professional Conduct

The Virginia State Bar, an administrative agency of the Supreme Court of Virginia, has
established the Virginia Rules of Professional Conduct to address the professional and ethical
responsibilities of all attorneys, including prosecutors.'” The comments to the Rules state that
“[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence.””!

Va. CODE ANN. § 15.2-1626 (2013).
VA. CODE ANN. § 15.2-1627(B) (2013).
See In re Horan, 634 S.E.2d 675, 679 (Va. 2006).
Va. CODE ANN. § 2.2-2617(A) (2013).
Training Programs, COMMONWEALTH’S ATT’YS’ SERVS. CoUNCIL,
http://www.cas.state.va.us/ htm (last visited Aug. 8, 2013).

Responsibilities, ATT’y GEN. OF VA., http://www.oag.state.va.us/A bout% 20the% 200 ffice/Respnsibilities.html
(last visited Aug. 8, 2013).

See generally VA. R. ProF’L Conpuct. See also Rules and Regulations, VA. STATE BAR,
http: //www.vsb.org/pro- guidelines/index.php (last visited Aug. 8, 2013).
Va. R. PROF’L CONDUCT 3.8 cmt. 1.

111

C. Other Rules and Laws Governing Prosecutors’ Responsibilities and Conduct

1. Capital Charging Decisions

A Virginia prosecutor may seek the death penalty if s/he has probable cause to believe that the
defendant committed capital murder.'? The Supreme Court of Virginia has held that “[t]he
discretion[ary authority] of the Commonwealth’s Attorney to choose the offense for which a
defendant will be charged includes the discretion to decide whether to seek the death penalty
when capital murder is the charged offense.”'? Over fifteen types of “willful, deliberate, and
premeditated killing[s]” are defined as capital murder under Virginia statutory law.'* While a
prosecutor may have good faith or probable cause to believe that the defendant or the offense
meets an aggravator, there is no requirement that the prosecutor make a pretrial showing that the
evidence supports a finding of an aggravating circumstance.

2. Discovery Obligations

a. Constitutional Discovery Obligations

Prosecutors have a constitutional duty to disclose to the defendant all exculpatory evidence in the
state’s possession “where the evidence is material either to guilt or to [level of] punishment,
irrespective of the good faith or bad faith of the prosecution.”’” This includes all material
exculpatory, mitigating, and impeachment evidence, as well as “favorable evidence known to
others acting on the government’s behalf in the case,” such as law enforcement officers. 8
Evidence is considered material if there is a “reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.””!”

b. Discovery Rules Under Virginia Law

Criminal discovery rules in felony cases are governed by Virginia Supreme Court Rule 3A:11.!
The defendant, upon motion to the trial court, is entitled to

inspect and copy or photograph any relevant (i) written or recorded statements or
confessions made by the accused . . . or the substance of any oral statements or
confessions made by the accused to any law enforcement officer, the existence of
which is known to the attorney for the Commonwealth, and (ii) written reports of
autopsies, [other forensic and scientific tests], and written reports of a physical or
mental examination of the accused or the alleged victim made in connection with

12 See Va. CODE ANN. § 18.2-31 (2013); VA. R. PROF’L CONDUCT 3.8(a).

'S In re Horan, 634 S.E.2d 675, 679 (Va. 2006).

Va. CODE ANN. § 18.2-31 (2013).

‘8 Brady v. Maryland, 373 U.S. 83, 87 (1963).

© Kyles v. Whitley, 514 U.S. 419, 421 (1995); Giglio v. United States, 405 U.S. 150, 154-55 (1972).

7 United States v. Bagley, 473 U.S. 667, 682 (1985).

18 va. Sup. Cr. R. 3A:11(a). These rules also govern discovery for “any misdemeanor brought on direct
indictment.” Id.

112

the particular case . . . that are known by the Commonwealth’s attorney to be
within the possession, custody or control of the Commonwealth. 18

The defendant is further entitled to “inspect and copy or photograph designated books, papers,
documents, tangible objects, buildings or places, or copies or portions thereof,” possessed by the
Commonwealth if it is shown “that the items sought may be material to the preparation of [the]
defense and that the request is reasonable.””” However, the Rule expressly prohibits discovery of
“statements made by Commonwealth witnesses or prospective Commonwealth witnesses to
agents of the Commonwealth or of reports, memoranda or other internal Commonwealth
documents made by agents in connection with the investigation or prosecution of the case.””!
The defendant’s discovery motions must be made at least ten days before trial.”

Upon motion of the Commonwealth, the prosecution is likewise entitled to discovery of forensic
and scientific test results in the possession of the defense, provided that the defense “intends to
proffer or introduce [it] into evidence at trial or sentencing” and discovery of such materials in
the prosecution’s possession was provided to the defense.” If the defendant intends to present
an alibi defense, s/he must “disclose the place at which he claims to have been at the time of the
commission of the alleged offense.””* Finally, if the defendant intends to present an insanity
defense, s/he must disclose “any written reports of physical or mental examination of the
[defendant] made in connection with the particular case.”

D. Investigation and Disciplining of Prosecutorial Misconduct

In accordance with the Virginia Rules of Professional Conduct, the Virginia State Bar
investigates and disciplines all attorneys, including prosecutors, for alleged professional
misconduct.”°

The disciplinary process begins when an individual files a complaint with the Virginia State
Bar.” A Virginia State Bar attorney, known as bar counsel, then investigates the claim.”° If bar
counsel determines that the complaint alleges credible evidence of misconduct that “could
reasonably be expected to support [the allegation] under a clear and convincing evidentiary
standard,” bar counsel will refer the complaint to the District Committee, composed of lawyers
and non-lawyers, for further investigation.”” A subcommittee of the District Committee will then

va. Sup. CTR. 3A:11(b)(1).
20 va. Sup. Cr. R. 3A:11(b)(2).

22 Va. Sup. CT.R. 3A:11(d).

va. Sup. Cr. R. 3A:11(0)(1).

4 Va. Sup. CT. R. 3A:11(c)(2).

Va. Sup. CT. R. 3A:11(c)(3).

See VA. R. PROF’L CONDUCT 9 (noting that the Council of the Virginia State Bar is empowered “to regulate the
legal profession”). This di i i only a basic overview of Virginia’s disciplinary procedures. The
Virginia State Bar’s website includes a more detailed, systematic guide to attorney discipline procedures in Virginia.
See Guide to Lawyer Discipline, VA. STATE Bar, http://www.vsb. i lation/1. discipline (last visited
Aug. 18, 2013).

27 “Va. R. PROF’L CONDUCT 13-10. See also Guide to Lawyer Discipline, supra note 26.

Va.R.PROF’L CONDUCT 13-10(A). See also Guide to Lawyer Discipline, supra note 26.

Va. R. PROF’L CONDUCT 13-10(E)-(F). See also Guide to Lawyer Discipline, supra note 26.

28
29

113

decide if, based on the evidence, the complaint should be dismissed or referred to the District
Committee for a hearing.’ If, following the hearing, the District Committee finds that the
attorney committed misconduct by clear and convincing evidence, it may sanction the attorney
with a private admonition or public reprimand.*! Serious misconduct will be referred to the
Disciplinary Board, which has the power to suspend an attorney’s license.”

Va.R.PROF’L CONDUCT 13-15. See also Guide to Lawyer Discipline, supra note 26.
Va.R. PROF’L CONDUCT 13-16(X). See also Guide to Lawyer Discipline, supra note 26.
Va.R.PROF’L CONDUCT 13-6. See also Guide to Lawyer Discipline, supra note 26.

114

Il. ANALYSIS

The Virginia Assessment Team faced limitations in obtaining information related to the analysis
contained under this Chapter. The Assessment Team submitted a survey to ten Commonwealth’s
Attorney offices, which included the jurisdictions that have imposed six or more death sentences
in Virginia since the reinstatement of capital punishment.** The survey requested aggregate data
on the application of the death penalty in the prosecutor’s jurisdiction, as well as information on
qualification and training requirements of prosecutors who handle capital cases, funding and
budget limitations, and capital charging and discovery practices.

However, the Virginia Association of Commonwealth’s Attorneys (VACA), “the voluntary
association of Virginia prosecutors representing their interests in political and social matters,”
responded in a letter stating that VACA, “as an organization, respectfully declines to participate
in the assessment.” VACA’s Board of Directors believes that “further study by, or on behalf
of, the American Bar Association is not warranted and participation in the assessment is not in
the best interest of VACA or those [it] serve[s].” While VACA stated that individual
Commonwealth’s Attorneys were free to respond to the Assessment Team’s survey, the
Assessment Team has received only one completed survey.*° The letter from VACA is
reproduced in the Appendix to this Report.

The Assessment Team has relied on publicly available information on the training, discovery and
charging practices, and discipline of Virginia’s prosecutors, including statutory and case law,
media reports, and studies conducted by other entities. However, because the Assessment Team
could not obtain sufficient information from individual Commonwealth’s Attorneys, it was
unable determine statewide compliance with some of the Protocols.

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team's
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
Assessment Team’s rec de s for reform.

A. Protocol #1

Each prosecutor’s office should have written policies governing the exercise of
prosecutorial discretion to ensure the fair, efficient, and effective enforcement of
criminal law.

33 Surveys were submitted to the Commonwealth’s Attomey Offices of the cities of Danville, Richmond,

Roanoke, and Virginia Beach, as well as of the counties of Arlington, Chesterfield, Henrico, Norfolk, Pittsylvania,
and Prince William. A survey was also submitted to the Commonwealth’s Attorneys’ Services Council. A copy of
the survey is reproduced in the Appendix to this Report, infra.
Prosecution Survey, sent from John Douglass, Chair, Va Death Penalty Assessment Team, to Va.
Commonwealth’s Att’ys (Feb. 21, 2012), infra Appendix.
° Letter from David N. Grimes, President, Va. Ass’n of Commonwealth’s Atty’s, to John Douglass, Chair, Va.
Death Penalty Assessment Team (Apr. 23, 2012), infra Appendix.

See id. The Richmond C ’s Attorney sut d 1 survey to the Assessment Team.
RICHMOND COMMONWEALTH’S ATTORNEY SURVEY (Ane 1, 3013) (on file with author). The Richmond
Commonwealth’s Attorney, Michael Herring, is a member of the Virginia Death Penalty Assessment Team.

115

Statutory Limitations on the Prosecutor’s Decision to Seek the Death Penalty*”

A crime constitutes capital murder under Virginia law if the defendant committed a “willful,
deliberate, and premeditated killing” in one of several statutorily defined circumstances.** Since
the reinstatement of the death penalty in Virginia, the number of circumstances, or predicate
offenses, for which the death penalty can be sought has expanded from three in 1975 to over
fifteen in 2011.°° The Supreme Court of Virginia has held that a Commonwealth’s Attorney has
complete discretion to “decide whether to seek the death penalty when capital murder is the
charged offense.”“° Virginia has not established any other laws, rules, or guidelines regarding

37 Given the wide array of instances in which a prosecutor may exercise his/her discretion, the Assessment Team’s
analysis contained under Protocol #1 is limited to a review of the exercise of discretion in seeking the death penalty.
38 "Va. CODE ANN. § 18.2-31 (2013). Capital murder is the “willful, deliberate, and premeditated killing” of
(1) any person in the commission of abduction, when such abduction was committed with the intent to
extort money or a pecuniary benefit or with the intent to defile the victim of such abduction;
(2) any person by another for hire;
(3) any person by a prisoner confined in a state or local correctional facility, or while in the custody of

an employee thereof;

(4) any person in the ission of robbery or d robbery;

(5) any person in the ission of, or to, rape or rape, forcible sodomy or
attempted forcible sodomy or object sexual penetration;

(6) a law-enforcement officer, a fire marshal, or a deputy or an assistant fire marshal, when such fire

marshal or deputy or assistant fire marshal has police powers, an auxiliary police officer, an
auxiliary deputy, or any law-enforcement officer of another state or the United States having the
power to arrest for a felony under the laws of such state or the United States, when such killing is
for the purpose of interfering with the performance of his official duties;

(7) more than one person as a part of the same act or transaction;
(8) more than one person within a three-year period
(9) any person in the ission of or ission of a violation of Virginia Code section

18.2-248 (“Manufacturing, selling, giving, distibuting, or possessing with intent to manufacture,
sell, give, or distribute a controlled substance or an imitation controlled substance prohibited”)
involving a Schedule Tor ll controlled substance, when such killing is for the purpose of
furthering the or ission of such violation;

(10) any person by another pursuant to the direction or order of one who is engaged in a continuing
criminal enterprise;

(11) a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the
involuntary termination of the woman’s pregnancy without a live birth;

(12) a person under the age of fourteen by a person age twenty-one or older;

(13) any person by another in the ion of or ion of an act of terrorism;

(14) a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a circuit court or
district court, a retired judge sitting by designation or under temporary recall, or a substitute judge,
when he killing is for the purpose of interfering with his official duties as ajudge; and/or

(15) any witness in a criminal case after a subpoena has been issued for such witness by the court, the
clerk, or an attorney, when the killing is for the purpose of interfering with the person’s duties in
such case.

Id.

See id.; see also Va. CoDE§ 18.2-31 (1975) (codifying 1975 Va. Acts, ch. 14, 15). These included whether the
first-degree murder was committed in conjunction with (1) abduction with the intent to extort money or pecuniary
benefit; (2) murder for hire; (3) the murder was committed by an inmate in a penal institution. VA. Copg§ 18.2-31
(1975).

* Commonwealth v. Horan, 634 S.E.2d 675, 679 (Va. 2006). In Horan, the Supreme Court of Virginia held that a
trial court interfered with the discretion of the Commonwealth’s Attorney by granting a pretrial motion precluding
the Commonwealth from seeking the death penalty against a foreign national. Id. at 676, 679-80. The trial court
had ded that the C had violated the defendant’s rights under the Vienna Convention on

116

the exercise of the prosecutor’s discretion to seek the death penalty. Importantly, after a capital
indictment, a Commonwealth’s Attorney may determine—in his/her discretion—that seeking the
death penalty is not appropriate in a particular case. However, existing Virginia law does not
explicitly provide for such circumstances and may even permit a court to impose a death
sentence where the prosecutor does not seek it.**

As noted in the Joint Legislative Audit and Review Commission of the Virginia General
Assembly’s 2002 report on the Virginia death penalty (JLARC Report), this framework grants
“Commonwealth’s Attorneys . . . a considerable amount of authority in determining whether to
seek the death penalty in homicide cases that meet the statutory requirements of capital
murder.”“? Moreover, the scope of capital-eligible homicides is itself quite broad. The statute
lists fifteen separate death penalty-eligible crimes, most of which include additional offenses
within each delineated capital-eligible offense.

Furthermore, it appears that Virginia’s two aggravating factors—one of which must be found in
order for a jury to sentence a defendant to death—offer little guidance or clarity to prosecutors in
determining when to seek the death penalty. The aggravating circumstances present the jury
with subjective standards for determining whether the defendant is a “continuing threat to
society” or committed the murder in an “outrageously or wantonly vile” manner.“* Given the
wide latitude afforded to Virginia’s prosecutors in determining whether to seek the death penalty,
it is especially important for them to exercise their discretion in a consistent and fair manner in
all death penalty-eligible cases.

Policies and Practices of Individual Commonwealth’s Attorney Offices

The Virginia Assessment Team was unable to obtain information on charging practices directly
from Virginia’s various Commonwealth’s Attorney offices.*° The Assessment Team did,
however, review publicly-available information regarding the exercise of prosecutorial discretion
in capital cases by some Commonwealth’s Attorneys. Based on the available information
reviewed by the Assessment Team, it appears that standards and policies governing the decision
to seek the death penalty vary greatly among Virginia’s prosecutors.

A 2003 report by the American Civil Liberties Union of Virginia (ACLU Report) stated that it
was “unable to find any” Commonwealth’s Attorney offices that had “implemented local

Consular Relations and Optional Protocol on Disputes, and that “the preclusion of the death penalty was an
appropriate remedy for the violation of [these] rights.” Id. at 676.

Dubois v. Commonwealth, 435 S.E.2d 636, 639 (Va. 1993) (finding that while “the Commonwealth’s
agreement not to seek the death penalty was a factor that the trial court was obliged to consider in determining
Dubois’s sentence, there is no dispute that the trial court was in no way bound to accept the Commonwealth's
recommendation”).

2 J. Lecis. Aupir & REV. COMM’N OF THE VA. GEN. ASSEMB., REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL
PUNISHMENT 28 (2002), available at http://jlarc.virginia. gov/reports/Rpt274. pdf [hereinafter JLARC Report].

Va. CODE ANN. § 18.2-31 (2013). See, e.g., VA. CODE ANN. § 18.2-31(1) (2013) (providing that a capital
offense includes the killing of “any person in the commission of abduction, when such abduction was committed
with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction.”
(emphasis added)).

Va. CODE ANN. § 19.2-264.4(C) (2013).

‘5 See supra notes 34-36 and accompanying text.

117

standards” on the exercise of discretion in death penalty-eligible cases.*° At least one
Commonwealth’s Attorney’s office appears to have enacted standards since publication of the
2003 report.*”

One Commonwealth’s Attorney has established a special “panel of staff members to consider, ‘in
a deliberate way,’ whether to file capital charges in future cases.”“* A fter the case is reviewed by
this panel, the Commonwealth’s Attorney must be convinced of the defendant’s “unquestioned
guilt” before seeking the death penalty.“ The Commonwealth’s Attorney stated that she also
considers the “heinousness of the crime and the background of the suspect” in making the
charging decision. By contrast, another Commonwealth’s Attorney was quoted as stating that
he typically exercises his discretion in favor of seeking a death sentence, stating that he “usually
charge[s] capital murder if it qualifies,” and that in many instances, he “charge[s] capital murder
even if it’s questionable as whether or not it fits in that category.”°!

In response to the Assessment Team’s survey, the Richmond Commonwealth’s Attorney stated
that, “as a practical matter,” his office “will not seek the death penalty if the crime involves
fewer than 2 adults, [or] unless a child or adult victim was killed in an exceptionally vile and
heinous manner.”°? The Commonwealth’ s Attorney also stated that

our decision to seek the death penalty tums on the facts and evidence (aggravators
and mitigators). We advise families of our decisions, and we certainly listen to
the families when they offer opinions on the sentence. But we are careful to
inform them that the ultimate decision on whether to seek the death penalty is
made by...the Commonwealth’s Attorney.°?

Furthermore, if defense counsel seeks consultation, the Richmond Commonwealth’s Attorney
“whenever possible,” will “offer an alternative to seeking the death penalty.” The office does
not possess any written policy governing the capital charging decision-making process.”

Disparity in Virginia’s Capital Charging Practices
Because of the discretion granted to Virginia’s Commonwealth’s Attorneys in deciding when to
seek a death sentence, there is considerable geographic disparity in Virginia with respect to death

penalty-eligible cases. The JLARC Report found that “[IJocation, more than any other factor,
impacted the probability that prosecutors would actually seek the death penalty for capital

‘6 Am. CIVIL LIBERTIES UNION OF VA. ET AL., BROKEN Justice: THE DEATH PENALTY IN VIRGINIA 8 (2003),

available at http://www.aclu.org/files/FilesPDFs/broken_justice.pdf [hereinafter BROKEN JUSTICE].

Scott McCaffrey, Commonwealth's Attorney to Tread Carefully on Capital Cases, ARLINGTON SUN GAZETTE
(Va), Aug. 16, 2012.
is i (discussing Aniington County).

Id.
Id.
5 Frank Green, ‘Like They're God’: Prosecutorial Discretion Called Awesome Power, RICHMOND TIMES-
DISPATCH, Feb. 5, 1998, at Al (discussing Prince William County).
= RICHMOND COMMONWEALTH’S ATTORNEY SURVEY, supra note 36, at 4.

Id. at5.

118

murder cases,” even though the report observed “no major differences in the types of capital
cases that occur” in different parts of Virginia. In fact, “[c]ases that are virtually identical in
terms of the premeditated murder and predicate offense, the associated brutality, the nature of the
evidence and the presence of the legally required aggravators are treated differently” depending
on the jurisdiction in which the crime occurred.”

The JLARC Report reviewed capital-eligible offenses committed in Virginia from 1995 to
1999.°% Of these cases, prosecutors in urban jurisdictions with a high population density sought
the death penalty in 16% of cases.°® By contrast, in medium and low population density
jurisdictions in Virginia, prosecutors sought the death penalty 45% and 34% of the time,
respectively." Thus, a prosecutor is approximately three times more likely to seek the death
penalty for a capital-eligible defendant in a medium density jurisdiction than in a high density
jurisdiction. The ACLU Report made similar findings with respect to death sentences, noting
“that individuals who are arrested for potentially capital crimes [from 1978 to 2001] in medium-
density jurisdictions are over twice as likely to receive a death sentence [as] those i[n] high-
density jurisdictions.”

Conclusion

Virginia prosecutors have considerable discretion in determining whether to seek a death
sentence. Approaches to the exercise of discretion in potential capital cases appear to vary
considerably among jurisdictions and Virginia law does not require Commonwealth’s Attorney
offices to have written policies governing the exercise of prosecutorial discretion in capital cases.
As the Assessment Team possesses no information indicating that Commonwealth’s Attorneys
have such policies, and anecdotal information suggests no written policies guiding the charging
decision in death penalty cases exist, it does not appear that Virginia is in compliance with
Protocol #1.

Recommendation

Since Virginia reinstated the death penalty, it has continually broadened the array of offenses
eligible for capital murder; the Commonwealth has not, however, more narrowly defined the
aggravating factors for which the death penalty may be sought. The combination of an
increasing number of capital-eligible offenses, without any related guidance by statute governing
death eligibility, increases the likelihood that prosecutors will exercise discretion in favor of
seeking capital punishment.

To better aid prosecutors in determining whether it is appropriate to seek the death penalty ina
particular case, the Commonwealth should improve data collection on actual capital charging

» JLARC Report, supra note 42, at 29.
7 Td. at 28.
58 Id. at 16. The JLARC Report defines a “capital-cligible offense” as “[a]n arrest resulting in a capital murder
indictment” or “[a]n arrest resulting in a first-degree murder indictment where all of the elements necessary to
qualify the offense for a capital murder indictment were present.” Id. at 29.
Id. at 39.

Id.

51 BROKEN JUSTICE, supra note 46, at 10.

119

and sentencing practices. A data source containing the details of cases in which the death
penalty was imposed, cases in which it was sought but not imposed, and cases in which it could
have been sought but was not, would assist prosecutors in determining whether it is appropriate
and proportionate to seek the death penalty in a particular case. Training for Commonwealth’s
Attomeys should incorporate dissemination of information about capital charging and sentencing
in Virginia in order to assist prosecutors in the exercise of discretion in death penalty cases.

The Assessment Team also recommends that Virginia’s Commonwealth’s Attorneys, defenders,
and judges convene to develop advisory or consultative guidelines regarding the exercise of
charging discretion in capital-eligible cases. Such advisory guidelines could better ensure
statewide consistency, while also providing assistance to prosecutors when deciding whether
there is a credible basis or good faith belief that a defendant meets the criteria for one of
Virginia’s two statutory aggravating factors.“ A data source containing comprehensive
information about capital charging and sentencing, as described above, would greatly aid the
Commonwealth in development of such guidelines to reduce the likelihood of arbitrariness in
capital cases.

Finally, 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. Notably,
this amendment would provide a cost savings to the Commonwealth as prosecutors would be
able to seek a sentence less than death in a capital case, with the concomitant savings in capital
litigation by the court, prosecution, and defense. It would also provide additional options to
Commonwealth’s Attorney in determining how to prosecute a capital case as new information
relevant to the sentencing decision arises after indictment.

82 See Chapter Seven on Direct Appeal. More robust proportionality review, as described in Chapter Seven.

which encompasses cases not only cases in which the death penalty was imposed, but also cases in which the death
penalty could have been but was not sought—would also serve as a better check on broad prosecutorial discretion
afforded in Virginia capital cases.

83 Other jurisdictions may provide useful examples as to what kind of information should be contained in written
guidelines goveming the exercise of discretion in capital cases. See, e.g., U.S. ATT’Y’s OFFICE, U.S. ATT’YS
CRIMINAL RES. MANUAL 9-10.030 (June 2007), available at
http://www justice. gov/ foia_reading_room/ itle9/10mcrm.htm#9-10.030 (Purposes of the Capital
Case Review Process); OFFICE OF THE ILL. ATT’Y GEN. & ILL. STATE’S ATTORNEYS ASS’N, DEATH PENALTY
DECISION GUIDELINES 2 (2006); NEW JERSEY CTy. PROSECUTOR ASS’N, PROSECUTORS’ GUIDELINES FOR
DESIGNATION OF HOMICIDE CASES FOR CAPITAL PROSECUTION (1989). Illinois repealed the death penalty in 2011;
New Jersey repealed the death penalty in 2007.

The aggravating factors are whether (1) the defendant would commit criminal acts of violence that would
constitute a continuing serious threat to society; or (2) the conduct was outrageously or wantonly vile, horrible or
inhuman, in that it involved torture, depravity of mind or an aggravated battery to the victim. VA. CODE ANN. §
19.2-264.2 (2013).

120

B. Protocol #2

Each prosecutor’s office should establish procedures and policies for evaluating
cases that rely upon eyewitness identification, confessions, or the testimony of
jailhouse snitches, informants, and other witnesses who receive a benefit.

When a person is wrongfully convicted, an innocent person is incarcerated or possibly sentenced
to death, and a guilty criminal may also remain free to commit more crimes. As such, it is
especially important for prosecutors to establish procedures and policies for evaluating
potentially unreliable evidence.

Eyewitness misidentifications, false confessions, and untruthful jailhouse informant testimony
are among the most common types of evidence that lead to wrongful convictions in the United
States. According to the Innocence Project, eyewitness identification has played “a role in more
than 75% of convictions overturned through DNA testing,”® and “[iJn about 25% of DNA
exoneration cases, innocent defendants made incriminating statements, delivered outright
confessions or pled guilty.”®° Moreover, “statements from people with incentives to testify—
particularly incentives that are not disclosed to the jury—are [often] the central evidence in
convicting an innocent person.”°”

While the Assessment Team was unable to obtain information from individual Commonwealth’s
Attomneys on policies related to the use of eyewitness identifications, confessions, and informant
testimony,” several wrongful convictions in Virginia illustrate the importance of carefully
evaluating evidence in cases relying on these frequent causes of wrongful conviction. In many
of these cases, exonerating evidence was not uncovered until several years after the defendant
was convicted.

While law enforcement procedures and practices are the first line of defense to protect against
wrongful conviction, law enforcement operates independently of the prosecution in Virginia.
Thus, Commonwealth’s Attorneys must be especially vigilant in scrutinizing all evidence
relating to the alleged guilt of the accused, as well as any evidence that may be used to support
charging a case capitally.

85 Understanding the Causes: Eyewitness Misidentification, INNOCENCE PROJECT,

http://www.i ject.org/und d i Misidentification.php (last visited Aug. 8, 2013). For a
discussion of issues related to eyewitness mnisidentification, see Chapter Two on Law Enforcement Identification
and Interrogation Procedures.

8° False Confessions, INNOCENCE PROJECT, hitp://www.innocenceproject. False-Confessions.php
(last visited Aug. 8, 2013).

° Understanding the Causes: Informants, INNOCENCE PROJECT, http://www.innocenceproject.org/understand/
Snitches-Informants.php (last visited Aug. 8, 2013) (stating that “[i]n more than 15% of wrongful conviction cases
overtumed through DNA testing, an informant testified against the defendant at the original trial”).

88 See supra notes 34-36 and accompanying text.

121

Wrongful Convictions Based on Eyewitness Misidentifications and False Confessions

At least eighteen people have been exonerated between 1989 and 2013 of serious violent felonies
in Virginia due to eyewitness misidentifications.®° Although none of these cases was a capital
murder prosecution, they demonstrate the need for Commonwealth’s Attorneys to carefully
review any prosecutions that are based primarily on eyewitness testimony, especially if the
eyewitness identification procedure does not conform to best practices.” Furthermore, false
confessions have led to a number of wrongful convictions in Virginia, including one case in
which the defendant received the death penalty.” In the “Norfolk Four” case, for instance, the

59 The exonerees are Marvin Anderson, Bennett Barbour, Victor Bumette, Jeffrey Cox, Calvin Wayne

Cunningham, Willie Davidson, Russell Leroy Gray, Thomas Haynesworth, Edward Honaker, Troy Hopkins, Julius
Ruffin, Walter Snyder, Teddy Thompson, Phillip Leon Thurman, Troy Webb, and Arthur Lee Whitfield. Marvin

Anderson, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/ detail.aspx?caseid=2995 (last visited Aug. 8, 2013);
Bennett Barbour, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3929 (last visited Aug. 8, 2013);
Victor Burnette, NATL REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3072 a visited Aug. 8, 2013);
Jeffrey Cox, NAT’L REGISTRY EXONERATIONS,
http://www.law.umich.edu/special, ion/Pages/ detail.aspx?caseid=3128 “fast visited Aug. 8, 2013);
Calvin Wayne Cunningham, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=3143 (last visited Aug. 8, 2013); Willie
Davidson, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3153 (last visited Aug. 8, 2013);
Garry Diamond, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4120 (last visited Aug. 8, 2013);
Russell Leroy Gray, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3434 (last visited Aug. 8, 2013);
Thomas Haynesworth, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3872 (last visited Aug. 8, 2013);
Edward Honaker, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=3304 (last visited Aug. 8, 2013); Troy
Hopkins, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=3305 (last visited Aug. 8, 2013); Julius
Ruffin, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/ ion/Pag detail.aspx?caseid=3599 (last visited Aug. 8, 2013);
Walter Snyder, NAT'L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3651 (last visited Aug. 8, 2013);
Teddy Thompson, NATL REGISTRY OF EXONERATIONS,
http://www.]law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3686 (last visited Aug. 8, 2013);
Phillip Leon Thurman, NAT’L REGISTRY OF EXONERATIONS,
http://www.law.umich.edu/special/exoneration/Pages/casedetail aspx ?caseid=3689 (last visited Aug. 8, 2013); John
Tingle, Its NAT’L REGISTRY OF EXONERATIONS,
http: //www.law.umicch.edu/special/exoneration/Pages/casedetail. aspeeaseid=4193 (last visited Aug. 8, 2013); Troy
Webb, NAT’L REGISTRY EXONERATIONS,
http://www.law.umich.edu/special ion/Pag detail.aspx?caseid=: 3728 (ast visited Aug. 8, 2013);
Arthur Lee Whitfield, NAT'L REGISTRY EXONERATIONS,
http://www.]law.umich.edu/special/ ition/Pages/casedetail aspx ?caseid=3738 (last visited Aug 8, 2013).

70” Details relating to the specific cases, as well as best practices for lineup, photo array, and other eyewitness

identification procedures, are discussed in Chapter Two on Law Enforcement Identification and Interrogation
Procedures.

7\ Details relating to the specific cases, as well as best practices for interrogations, are discussed in Chapter Two
on Law Enforcement Identification and Interrogation Procedures.

122

four defendants were convicted of raping and murdering the victim in her apartment based
largely on their confessions.” All four men confessed to the crime after police threatened them
with the death penalty and falsely told them that they had failed polygraph tests.” While their
final confessions were recorded, the interrogations preceding the confessions were not.“ As
these cases demonstrate, it is especially important for prosecutors to carefully examine cases that
rest largely on a defendant’s confession.

Wrongful Convictions Based on Jailhouse Informant Testimony

A notable capital case in Virginia demonstrates the risk of wrongful conviction based on the
testimony of a jailhouse informant who received a benefit for his/her testimony, as well as
underscores the need for prosecutors to exercise heightened scrutiny when relying on informant
testimony. Michael Hash was convicted of capital murder and sentenced to life in prison for the
murder of Thelma Scroggins in Culpeper.” Scroggins was shot to death in her home in 1996,
when Hash was fifteen, but Hash was not initially arrested for the crime or considered as a
suspect.” In the initial investigation immediately following the crime, police concluded that a
single assailant committed the crime, but no one was arrested. ””

In 1999, under a new sheriff, Hash was eventually developed as a suspect based on three
witnesses.” The first, Eric Weakley, testified that he, Hash, and a third person committed the
crime.” The second, Hash’s cousin, claimed that she had heard Hash and the two others
discussing the crime." Finally, Paul Carter, who was in jail with Hash before trial, testified that
Hash confessed the murder to him in some detail.”

On cross-examination, “when asked if he had assisted [the] government [as an informant] on
prior occasions, Carter testified that he had only done so on one prior occasion.”®” When defense
counsel asked if he was testifying to receive a potentially-reduced sentence, Carter responded,
“Somewhat, yes... .”°° “Nevertheless, on re-direct the [Commonwealth’s Attorney] was able to
rehabilitate Carter’s testimony with Carter’s answer that it was his understanding that his
testimony in the state court proceedings against Hash did not have any impact on his [own]
sentence.”*

; Alan Berlow, What Happened in Norfolk?, N.Y. Times Mac., Aug. 19, 2007, at 36.
md

75 Hash v. Johnson, 845 F. Supp. 2d 711, 715-16 (W.D.Va. 2012).

7 Id. at 716, 718.

7 Yd. at 718.

© Id. at 718.
8! Id. 718-19.
® Id. at 719.

123

Hash’s defense relied on the inconsistency of the witness statements, as well as an alibi
supported by several witnesses. The jury, however, convicted Hash and he was sentenced to
life in prison."

In state habeas proceedings, however, new evidence revealed that Carter had, in fact, received a
substantial sentencing reduction in exchange for his testimony.®” Carter, who was facing federal
charges, had sent letters to a federal judge before he testified concerning his motion for a reduced
sentence based on his assistance in the Hash prosecution. ®° This motion was later granted,
reducing Carter’s sentence by more than half—from 180 months to sixty months.® Moreover,
contrary to his testimony that he had testified as an informant only once before, he had
previously “provided information or testimony that implicated at least twenty people in at least
three different federal prosecutions,”

Further evidence uncovered in federal habeas proceedings indicated that Carter’s history as an
informant was known to authorities investigating Hash, and that they had agreed to support
Carter’s motion for a sentence reduction.*’ Prior to Hash’s trial, one of the investigators wrote a
letter to Carter stating, “[I]f I’m ever asked by the U.S. Attorney in your case, I will tell him
what you did.”®? The Commonwealth’s Attorney had also moved Hash to the same jail as Carter
in order to expose Hash to the informant, although authorities had previously denied this.°°

Federal habeas proceedings also revealed that Weakley, Hash’s co-defendant, negotiated a
“deal” with prosecutors in exchange for his testimony.** This arrangement was never disclosed
at trial. Weakley has since recanted his testimony against Hash, and the investigator in the case
has stated that he did not believe Weakley’s story or the story told by Hash’s cousin. °°

Based on this evidence, Hash was granted federal habeas relief in 2012.°” He was released from
prison, and the Commonwealth’s Attorney chose to dismiss the charges.®* Hash has since filed a
civil suit against several Culpeper authorities seeking damages for his wrongful conviction.”

8 Id. at 719-20.
8 Id. at 715.
87 Id. at 720-22.
88 Id. at 720.
8 Id. at 721.
90 Id. at 719 n.4.
Id. at 722-23,
® Id. at 722.

% Id. at 723. The terms of this deal are not clear. Id.
d

97 ;

Id. at 752.
Donnie Johnston, Charges Against Michael Hash Nolle Prossed, FREE LANCE-STAR (Fredericksburg, Va.),
Aug. 20, 2012.
% “Allison Brophy Champion, Hash Suit: Jenkins, Close “Architects” of Wrongful Conviction, CULPEPER STAR-
EXPONENT (Va.), Jan. 4, 2013.

124

Conclusion

As described above, there are a number of documented instances of wrongful convictions in
Virginia based on eyewitness misidentifications, false confessions, and inaccurate jailhouse
informant testimony. In addition, the Assessment Team obtained no information indicating that
Commonwealth’s Attorneys have promul Igated policies specifically aimed at addressing the most
frequent causes of wrongful conviction.’” Thus, it appears that Virginia is not in compliance
with Protocol #2.

Recommendation

Given the occurrences of wrongful convictions in Virginia—many of which might have been
prevented through heightened scrutiny by the Commonwealth’s Attorney of the evidence
presented in the case—the Virginia Assessment Team sets out the following recommendations:

e Prosecutors should ensure that eyewitness identification procedures comport with
the best practices discussed in Chapter Two on Law Enforcement Identifications
and Interrogations. Prosecutors could also base their policies on those adopted by
the Virginia Department of Criminal Justice Services describing the manner in
which eyewitness identifications should be conducted. !°"

e With respect to confessions, prosecutors should scrutinize the veracity of a
confession in light of other known evidence in the case to consider whether any
inconsistencies may make the confession unreliable. Even recorded confessions
must be carefully examined. In the Norfolk Four case, for instance, the formal
confessions of the defendants were recorded, but not their lengthy interrogations,
possibly obfuscating evidence of coercion. 102

e Prosecutors need to adopt a mechanism for determining if a testifying witness has
received a benefit.'°? Prosecutors should also carefully review a jailhouse
informant’s statement to ensure that, in light of other evidence available in the
case, itis credible.

e All Virginia prosecutors should he required to receive training on how to evaluate
the accuracy of eyewitness identifications, confessions, and jailhouse informant
testimony.

100 In response to the Assessment Team’s survey, the Richmond Commonwealth’s Attorney stated that his office
has no policy relative to evaluating cases that primarily rely on eyewitness identifications, confessions, or informant
testimony. RICHMOND COMMONWEALTH’S ATTORNEY SURVEY, supra note 36, at 8.
11 See Memorandum from John J. Farmer, Jr., Att'y Gen. of N.J. to N.J. Prosecutors & Law Enforcement (Apr.
18, 2001), available at http://www.state.nj . us/Ips/dcj/agguide/photoid. pdf.

Alan Berlow, What Happened in Norfolk?, N.Y. Times Mac., Aug. 19, 2007, at 36.
‘3 For example, the Ninth Circuit held that a county may be held liable if a prosecutor fails to realize that a
jailhouse informant is unreliable in part because the district attorney “failed to create an index that includes
information about benefits provided to jailhouse informants and other previous knowledge about the informants’
reliability.” Goldstein v. City of Long Beach, No.10-56787, 2013 WL 1896283, at *11 (9th Cir. May 8, 2013).

125

C. Protocol #3

Prosecutors should fully and timely comply with all legal, professional, and ethical
obligations to disclose to the defense information, documents, and tangible objects
and should permit reasonable inspection, copying, testing, and photographing of
such disclosed and ible objects.

Federal and Virginia Law Governing Discovery Practices

In Brady v. Maryland, the U.S. Supreme Court held that prosecutors have an affirmative duty to
disclose exculpatory evidence to the defendant “where the evidence is material either to guilt or
to [level of] punishment, irrespective of the good faith or bad faith of the prosecution.”!* This
includes all material exculpatory, mitigating, and impeachment evidence, as well as “favorable
evidence known to the others acting on the government’s behalf in the case,” such as law
enforcement officers.!° “[E]vidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.”!°° In accordance with Brady, the Virginia Rules of Professional Conduct provide that
prosecutors have a special duty to disclose all exculpatory and mitigating evidence to the
defendant.!°”

A Virginia prosecutor’s other discovery obligations, as mandated by Virginia Supreme Court
Rule 3A:11, are quite limited.'° The defendant has an absolute right to discovery of only (1)
“written or recorded statements or confessions made by the accused . . . or the substance of any
oral statements or confessions made by the accused to any law enforcement officer, the existence
of which is known to” the prosecutor and (2) “written reports of autopsies,” forensic tests, and
mental exams “of the accused or the alleged victim made in connection with the particular case”
that are known by orin the possession of the prosecutor.'°

In addition, Rule 3A:11 grants defendants the right to “inspect and copy or photograph
designated books, papers, documents, tangible objects, buildings or places, or copies or portions
thereof, that are within the possession, custody, or control of the Commonwealth,” provided the
defendant can demonstrate to the trial court that “the items sought may be material to the
preparation of his defense and that the request is reasonable.”'!° However, the rule expressly
excludes from discovery “statements made by Commonwealth witnesses or prospective
Commonwealth witnesses to agents of the Commonwealth or of reports, memoranda or other
internal Commonwealth documents made by agents in connection with the investigation or
prosecution of the case.”!"!

14 Brady v. Maryland, 373 U.S. 83, 87 (1963).

105 Kyles v. Whitley, 514 U.S. 419, 421 (1995); Giglio v. United States, 405 U.S. 150, 154-55 (1972).

106 United States v. Bagley, 473 U.S. 667, 682 (1985).

107 Va. R. PROF’L CONDUCT 3.8(d).

108 See Va. Sup. CT. R. 3A:11(b).

Id. The rule specifically mentions “autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood,
urine and breath tests, other scientific reports, and written reports of a physical or mental examination.” Id.

ui Id.

126

Thus, police reports and statements made by witnesses are not discoverable under Virginia
law. ta Such limited rule-based discovery obstructs a defendant’s ability to investigate his/her
case and present a defense, and, more generally impedes upon the overall faimess of the
proceedings. Furthermore, this rule stands in contrast to the discovery rules of many other states,
which require witness statements and reports related to those statements to be disclosed to the
defense.

Discovery Policies and Practices of Individual Prosecutor Offices

A prosecutor may, as part of an agreement with defense counsel or by way of office policy,
voluntarily disclose other materials to the defense that are not required to be disclosed by law.
The Assessment Team was unable to obtain information from individual Commonwealth’s
Attorneys regarding information related to discovery procedures. ''*

It appears that at least some Commonwealth’s Attorney offices have adopted “open file”
discovery procedures, under which all or most of the prosecutor’s file is shared with defense
counsel before trial.!!* A 2009 news report stated that “Commonwealth’s attorneys for
Pittsylvania, Halifax, Campbell, Bedford and Henry counties and in the city of Martinsville have
moved toward open file discovery.”!"° The exact terms of these polices, as well as the meaning
of “open file,’ are unclear. In response to the Assessment Team’s survey, the Richmond
Commonwealth’s Attorney Office stated that it “definitely provides[s] exculpatory and
mitigating statements; however, only in exceptional circumstances [does it] provide actual
witness statements. oT The Richmond Office further stated that it has “meetings among trial
team members to discuss discovery responses and tenders,” in addition to conferences with the
defense team.'!®

Discovery and Adherence to Brady in Virginia Cases

Two recent high-profile wrongful conviction cases in Virginia underscore the need for broader
discovery requirements under Virginia law, as well as the need for prosecutors to provide

12 Id.
13 See, e, g., Mp. R. Crm. P. 4-263(d)(9) (granting Maryland defendants a right to discover “all written
of the Si “intends to call to prove the State’s case in chief or to rebut alibi
testimony”); Mo. Sup. CT. R. 25, 03(A)(1) (granting Missouri defendants a right to the discovery of “[t]he names and
last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together
with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral
statements”); N.C. Gen. Stat. § 15A-903(a)(1) (granting North Carolina defendants a right to discover “the complete
files of all law agencies” including “witness [and] investigating officers’ notes”); PA. R.
Crm. P. 573(B)(2)(a)(2) (permitting Pennsylvania trial courts to grant discovery of “[a]ll written or recorded
statements, and substantially verbatim oral statements, of witnesses the prosecution intends to call at trial and of
codefendants).
‘4 See supra notes 33-36 and accompanying text.
45 Matt Tomsic, Commonwealth's Attorney Candidate Clarifies Open File Views, DANVILLE REGISTER & BEE
Va), Sept. 7, 2009.

W
rT

; RICHMOND COMMONWEALTH’S ATTORNEY SURVEY, supra note 36, at 7.
Id.

127

discovery to defendants, especially with respect to any evidence that might be considered
exculpatory under Brady.

Michael Hash

In the Michael Hash case, previously discussed under Protocol #2, the Culpeper County
Commonwealth’s Attorney failed to disclose several pieces of evidence related to benefits given
to prosecution witnesses in exchange for their testimony at trial.!"° For instance, the prosecutor
failed to disclose that the jailhouse informant, Paul Carter, had received a substantially reduced
sentence in federal court in exchange for his testimony, and that Hash was intentionally placed in
a jail with Carter so that Carter could serve as an informant.'?° Nor did the prosecutor inform
defense counsel that he had negotiated a deal with Hash’s co-defendant in exchange for his
testimony.’”! The fact that Hash’s co-defendant and another witness had failed polygraph tests
in which they implicated Hash was also withheld from defense. '”

None of this evidence was revealed until federal habeas proceedings, over a decade after Hash
was convicted.’ In its order granting habeas relief to Hash, the federal district court found that
the Commonwealth’s Attorney “engaged in a series of lies and failures to disclose exculpatory
evidence to Hash’s trial counsel. Without access to this information[,] Hash was denied the
opportunity to effectively cross-examine the State’s witnesses against him, in particular their
motivation to falsify their testimony.”

Justin Wolfe

Justin Wolfe was convicted of capital murder and sentenced to death for a murder-for-hire in
Prince William County in 2002.’ At trial, the Commonwealth’s Attorney alleged that Wolfe, a
marijuana dealer, hired his friend and fellow dealer, Owen Barber, to kill Wolfe’s marijuana
supplier, Daniel Petrole because Wolfe owed a large amount of money to Petrole.’”° As the U.S.
Court of Appeals for the Fourth Circuit later noted in federal habeas proceedings, “Wolfe’s
Conviction was primarily secured” by Barber’s testimony. 127 “Barber was the prosecution’s key
witness in Wolfe’s capital trial and the only witness to provide any direct evidence regarding the
‘for hire’ element of the murder offense and the involvement of Wolfe therein.”!® Wolfe, who
testified in his own defense at trial, admitted that he was a drug dealer but denied any
involvement in the murder.'”°

See supra notes 75-99 and accompanying text.

in Hash v. Johnson, 845 F. Supp. 2d 711, 722 (W.D.Va. 2012).
Id.

Id.

3" Td. at 716, 722.

MA Td. at 751.

125" Wolfe v. Johnson, 565 F.3d 140, 143-44 (4th Cir. 2009).

8 Td. at 144-45.

UT Td. at 144.

Id.
129 Id. at 146-47.

128

Subsequent federal habeas proceedings revealed several Brady violations.'*° The federal district
court found that “[t]he prosecutors choreographed and coordinated witness testimony through a
series of joint meetings with Owen Barber” and other witnesses who were used to corroborate
Barber’s version of events.'*! Moreover, the prosecution did not disclose a police report stating
that during Barber’s interrogation, it was law enforcement, not Barber, who first suggested
Wolfe was involved in the murder.'? The prosecution also withheld evidence that, some period
after the murder, Barber confided to his roommate that he acted alone in killing Petrole, '°
Information suggesting that Barber himself owed Petrole money and that “Petrole had a hit out
on Barber’—evidence that suggested Barber had his own motive for killing Petrole—was also
withheld.“* During these federal proceedings, Barber also recanted his trial testimony under
oath and stated that he acted alone in killing Petrole.!*°

The federal district court, in granting habeas relief to Wolfe, noted that “had the prosecution
complied with its Brady obligations, Barber’s testimony would have been seriously
undermined.”!*° As such, the court granted Wolfe a new trial in 2011.'9’ In 2012, the same
court ordered Wolfe’s release because the prosecution had failed to retry him within 120 days.
However, the U.S. Court of Appeals for the Fourth Circuit overturned that decision one year later
and ruled that Virginia may pursue a new trial.!°*

The Wolfe case demonstrates the problems that can arise when prosecutors are granted too much
discretion to determine what evidence must be disclosed to the defense under Brady. Describing
why his office has not adopted an open file discovery policy that favors disclosure, the Prince
William County Commonwealth’s Attorney said, “I have found in the past when you have
information that is given to certain [defense] counsel and certain defendants, they are able to
fabricate a defense around what is provided.”'** Rather than being useful for fabricating a
defense, however, the evidence withheld in Wolfe’s case proved to be unmistakably exculpatory.

Conclusion

Recent high profile wrongful conviction cases in Virginia demonstrate the consequences of
serious failures to comply with Brady. Moreover, Virginia’s basic rules of discovery provide a
defendant a minimal opportunity to investigate his/her case and prepare a defense. In death
penalty cases, the disclosure obligations imposed by the Virginia rules are not broad or robust
enough to ensure that exonerating and mitigating evidence is disclosed to defendants.
Furthermore, instead of erring on the side of disclosure, the Virginia rules leave the prosecutor to

130 Wolfe v. Clarke, 819 F. Supp. 2d 538 (E.D.Va. 2011).

Sl Td. at 547, 550-51.

2 Td. at 548.

SS" Td. at 554.

BA Td. at 548-49.

88 Td. at 548.

86 Td. at 565.

‘87 Td. at 574. The decision was later affirmed by the U.S. Court of Appeals for the Fourth Circuit. Wolfe v.
Clarke, 691 F.3d 410 (4th Cir. 2012).

‘88 Matthew Barakat, Appeals Court Allows Capital Retrial of Wolfe, ASSOCIATED Press (Va.), May 22, 2013.
89 Wolfe, 819 F. Supp. 2d at 567 n.24.

a

129

decide what and when evidence must be disclosed under Brady, thereby further contributing to
error in capital cases.

While the Assessment Team was largely unable to obtain information on discovery practices
from individual Commonwealth’s Attorneys, available information suggests that at least some
Commonwealth’s Attorney offices have not complied with all legal, professional, and ethical
obligations regarding disclosure to the defense. Virginia’s extraordinarily limited discovery
under Rule 3A:11 further impedes compliance with the Protocol. As such, Virginia is not in full
compliance with Protocol #3.

Recommendation

Because “death is different,” the U.S. Supreme Court has required heightened procedural
protections to ensure fairness in capital cases and to avoid convicting the innocent. “° In the area
of defense services, Virginia has made important progress in recent years. But even the most
capable defense counsel cannot function effectively without access to information.
Unfortunately, when it comes to discovery, Virginia’s rules are more restrictive than in other
states and the federal system in providing capital defendants the basic information necessary to
prepare and present a defense.

Some prosecutors in capital cases provide more discovery than the rules require. Asa result, the
quality and quantity of discovery can vary by jurisdiction. Nevertheless, when the discovery
process conforms to Virginia’s uniquely-limited rules, a capital defendant may go to trial without
knowing who will testify against him. S/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.
Thus a capital defendant may face the daunting task of preparing for trial without access to some
of the record of the police investigation that gave rise to capital charges.

Neither party owns the facts in a criminal case. An adversary system of criminal justice
functions more fairly, and gets to the truth more effectively, when both sides have access to the
facts. Fair and reasonable discovery can have special value to all parties and to the courts in
capital cases. Because capital cases bring particular focus on issues of mitigation, Virginia’s
limited rules of discovery can put the prosecutor in the difficult position of deciding for him- or
herself which evidence in a police file may support a sentence less than death. '*"

40 Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (stating that since “the penalty of death is qualitatively
different from a sentence of imprisonment . . . there is a corresponding difference in the need for reliability in the
determination that death is . . . appropriate”).

‘4 The Alabama discovery rules recognize, for example, “[t{he hovering death penalty is the special circumstance
justifying broader discovery in capital cases.” Ex parte Monk, 557 So.2d 832, 836-37 (Ala. 1989). Monk explains
the special circumstances giving rise to expanded discovery in death penalty cases, stating that “[i]n a capital case
the definition of ‘favorable evidence’ expands at the sentencing stage far beyond what it is at any stage of any other
type of criminal proceeding.... This statutory mandate that a defendant shall be allowed to offer evidence of
mitigating circumstances is another reason why broad discovery must be allowed. The prosecutor cannot screen
files for potential mitigating evidence to disclose to the defense counsel because w]hat one person may view as
mitigating, another may not.’” Id. at 837 (quoting Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir. 1983))
(emphasis added).

130

Despite prosecutors’ efforts to act in good faith, the Virginia discovery system makes Brady
violations more likely and can result in extensive post-trial litigation, reversals, and retrials.
Discovery also contributes to earlier- and better-informed pretrial disposition of capital cases
through guilty pleas. Due to the inherent additional costs and protracted nature of capital
litigation, such pretrial dispositions likely would more than offset the minimal cost of providing
broader discovery of information already in the hands of the Commonwealth.

While discovery is critical to faimess and accuracy in capital cases, it also raises sensitive issues
regarding the cooperation and safety of witnesses. In a world where shared information can
quickly find its way to the internet, prosecutors and police raise valid concerns that exposure
may discourage some witnesses from coming forward and may otherwise endanger the safety of
some witnesses. Any recommendation for discovery reform must take into account these
important concerns.

The Assessment Team believes that careful discovery reform can provide the information
essential to defend a capital case while protecting against premature disclosures that may harm or
intimidate witnesses. The federal courts and the courts of most states operate under discovery
rules more generous than Virginia’s, including rules providing for disclosure of witnesses and
witness statements.” Of course, every trial ultimately requires witnesses to testify in public.
Discovery rules that prohibit disclosure of witness statements even at the time of trial have little
basis in concerns for witness safety. '“°

Thus, the Assessment Team recommends that

e 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. In recognition of the sensitive issues regarding the
cooperation and safety of witnesses, the rules should include a provision for
protective orders to protect witness safety in appropriate cases. Importantly, such
discovery contributes to earlier and better-informed pretrial disposition of capital
cases through guilty pleas. Due to the inherent added costs and protracted nature of
capital litigation, such pretrial dispositions likely would more than offset the minimal
cost of providing broader discovery of information already in the hands of the
Commonwealth.

2 18 U.S.C. section 3432 provides for disclosure of prosecution witnesses in capital cases three days before trial.
18 U.S.C. section 3500 (the “Jencks Act”) requires disclosure of witness statements at the time of direct examination
at trial. Alternatively, North Carolina’s discovery statute could serve as a model for amendments to Virginia’s
discovery rule. The statute requires disclosure ‘of the:® “complete files of all law enfc agencies, in gi
agencies, and p ” offices” i: fi *s investigating officers’ notes, results of tests
and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have
been committed by the defendant.” N.C. GEN. STAT. § 15A-903(a)(1) (2013). A witness’s identity can be withheld
from discovery if the court finds there i is a “substantial risk . . . of physical harm, intimidation, bribery, economic
re risals, or BONE. GEN. STAT. § 15A-908(a) (2013).

Bellfield v. Commonwealth, 208 S.E. 2d 771, 774 (Va, 1974), holds that witness statements are not
discoverable even after the witness testifies.

131

e 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. Prosecutors
should have in their possession a complete copy of the investigating agencies’ case
file and must conduct a full inspection of the complete contents of the file.

e 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, such as mitigating evidence, in death penalty
cases.

D. Protocol #4

Prosecutors should ensure that law enforcement agencies, laboratories, and other
experts under their direction or control are aware of and comply with their
obligation to inform pr about p i y or mitigating
evidence.

The U.S. Supreme Court has held that a prosecutor’s constitutional duty to disclose material
exculpatory evidence under Brady includes a duty to disclose “favorable evidence known to the
others acting on the government’s behalf in the case,” such as law enforcement officers and
crime laboratory technicians, even if the evidence is “known only to police investigators and not
to the prosecutor.”"“> Thus, to ensure that all Brady material is disclosed to the defense, Virginia
Commonwealth’s Attorneys must develop procedures to make certain that law enforcement
agencies, laboratories, and experts inform prosecutors about potentially exculpatory or mitigating
evidence. While law enforcement is not under the direction or control of the Commonwealth’s
Attorney in Virginia, Commonwealth’s Attorneys have an obligation to actively seek this
information from law enforcement and related entities.

The Assessment Team was unable to obtain information from most of the Commonwealth’s
Attorney offices it queried regarding discovery policies and practices. The Richmond
Commonwealth’s Attorney has stated that it is drafting a policy to ensure that law enforcement
agencies divulge all potentially exculpatory evidence to the prosecution. “° However, there are
some Virginia cases in which Brady violations were, in part, attributable to law enforcement and
other agents of the state. However, it is unclear whether the Commonwealth’s Attorney offices
in these cases were aware of these violations.

4 In Kyles v. Whitley, 514 U.S. 419 (1996), the U.S. Supreme Court held that a prosecutor’s constitutional duty to
disclose material exculpatory evidence under Brady includes a duty to disclose “favorable evidence known to the
others acting on the government’s behalf in the case,” such as law enforcement officers and crime laboratory
technicians, even if the evidence is “known only to police im and not to the p ” Id. at 437-38.

us Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). See also Workman v. Commonwealth, 636 S.E.2d 368, 375-
77 (Va. 2006) (finding Brady violation where prosecutor had no knowledge of material in possession of law
enforcement that should have been disclosed to the defendant); Tuma v. C h, 726 S.E.2d 365, 375 (Va
Ct. App. 2012) (en banc) (reaffirming that “the law is clear that the prosecutor is ‘charged with the clear and
affirmative duty of disclosing all exculpatory evidence in the possession, custody, or control of the Commonwealth
and its agents.”).

146 RICHMOND COMMONWEALTH’S ATTORNEY SURVEY, supra note 36, at 7-8.

132

In the Justin Wolfe case, previously discussed in Protocol #8, significant Brady material was
withheld by law enforcement.'*’ For instance, a police report stating that, during an
interrogation, Wolfe’s co-defendant implicated Wolfe in the murder only after police suggested
Wolfe as an accomplice was never disclosed.!“®

Law enforcement also failed to disclose information in the Earl Washington case that might have
revealed that Washington’s confession was false. Washington, while interrogated by police for
two days, was told confidential details about the crime scene, which Washington then repeated
back in his confession.'“° For instance, Washington stated in his confession that he had left
a bloody shirt in a dresser drawer in the victim’s home.'*” However, the officer did not disclose
that he had previously told this information to Washington over the course of the
interrogation.

Conclusion

There are at least some cases in Virginia in which law enforcement officers and other state
agencies did not comply with their obligation to inform prosecutors about potentially exculpatory
or mitigating evidence. However, because the Assessment Team was unable to obtain
information from most Commonwealth’s Attorney offices on discovery policies, it is unclear
whether Commonwealth’s Attorneys have enacted any policies to prevent these errors. As such,
the Assessment Team was unable to determine if Virginia is in compliance with Protocol #4.

Recommendation

Since the duty to seek out and disclose Brady material in the possession of any state actor
ultimately falls on the prosecutor, prosecutors must make certain that they have access to all of
the evidence in the case.

Therefore, the Assessment Team recommends that all Commonwealth’s Attorneys 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. Ultimately,
prosecutors should have in their possession a complete copy of the investigating agencies’ case
file or must conduct a full inspection of the complete contents of the file. In addition, 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, such as mitigating evidence, in death penalty cases.

Enactment of such provisions will not only better prevent miscarriages of justice, such as
wrongful conviction or execution, but also reduce the need to remedy failures to disclose during
state and federal habeas corpus proceedings, thereby preserving judicial resources.

47 See supra notes 125-139 and accompanying text.

M8" Wolfe v. Clarke, 819 F. Supp. 2d 538, 548 (E.D.Va. 2011).

49" Zinie Chen Sampson, Va. Jury Awards Exonerated Death-Row Inmate $2.25 Million from Investigators Estate,
ASSOCIATED Press, May 7, 2006.

SL See id.

133

E. Protocol #5

Each jurisdiction should establish policies and procedures to ensure that
prosecutors and others under the control or direction of prosecutors who engage in
misconduct of any kind are appropriately disciplined, that any such misconduct is
disclosed to the criminal defendant in whose case it occurred, and that the
prejudicial impact of any such misconduct is remedied.

The Assessment Team recognizes that legal errors attributable to the prosecution in a death
penalty cases may not, in many instances, rise to the level of “misconduct.” Sorting out “error”
from “misconduct” is often challenging given the myriad decisions a Commonwealth’s Attorney
must make in the prosecution of a capital case. The complex nature of the prosecutorial role is
one of the reasons that prosecutors enjoy absolute immunity from civil suit for violations of the
law. As described by the U.S. Supreme Court, without immunity “harassment by unfounded
litigation would cause a deflection of the prosecutor’s energies from his public duties, and the
possibility that he would shade his decisions instead of exercising the independence of judgment
required by his public trust.”!°?

Acknowledgement and correction of error, however, is critical in death penalty cases. For
example, a study evaluating reversals of death penalty cases between 1973 and 1995 found that
the second most common error discovered at the post-trial stage leading to reversal was
“prosecutorial suppression of evidence that the defendant is innocent or does not deserve the
death penalty.” Furthermore, in the instances in which an individual prosecutor’s actions rise
to the level of misconduct, such misconduct must be appropriately sanctioned.

In Virginia, the Center for Public Integrity’s study of criminal appeals, which included both
capital and non-capital cases from 1970 to June 2003, revealed 127 Virginia cases in which a
defendant alleged prosecutorial negligence, error, or misconduct.’** In twenty-two cases, the
appellate court reversed or remanded the defendant’s conviction, sentence, or indictment due to
prosecutorial error that prejudiced the defendant.’ Notably, however, these data can
underrepresent the actual extent of prosecutorial negligence, error, and misconduct due to the
doctrines of procedural default and harmless error.

Virginia State Bar Disciplinary Procedures

The U.S. Supreme Court has stated disciplinary authorities can ensure that a prosecutor “who
violates his or her ethical obligations is subject to professional discipline, including sanctions,
suspension, and disbarment.”!° While the U.S. Supreme Court has held that prosecutors are
immune from federal civil lawsuits alleging violations of constitutional rights, °’ the Court has

Imbler v. Pachtman, 424 U.S. 409, 423 (1976).

i James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 Tex. L. Rev. 1839,
1850 (2000).

‘St Nationwide Numbers, Crr. For Pus. INTEGRITY, http://www.iwatchnews.org/2003/06/26/5927/nationwide-
numbers (last visited Aug. 8, 2013).

°° Td.

me Connick v. Thompson, 131 S. Ct. 1350, 1362-63 (2011).
‘87 Tmbler v. Pachtman, 424 U.S. 409, 430 (1976).

134

“emphasize[d] that the immunity of prosecutors from liability . . . does not leave the public
powerless to deter misconduct or to punish that which occurs” because “a prosecutor stands
perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his
amenability to professional discipline by an association of his peers,” °°

The Virginia State Bar, as an administrative agency of the Supreme Court of Virginia, is charged
with investigating and disciplining all attorneys, including prosecutors, for alleged professional
misconduct.'®? Ethical duties and disciplinary procedures are governed by the Virginia Rules of
Professional Conduct. !

These Rules include additional responsibilities that apply only to prosecutors.'°! Under these
Rules, a prosecutor must

(a) not file or maintain a charge that the prosecutor knows is not supported by
probable cause;

(b) not knowingly take advantage of an unrepresented defendant;

(c) not instruct or encourage a person to withhold information from the
defense after a party has been charged with an offense;

(d) make timely disclosure to counsel for the defendant, or to the defendant if
he has no counsel, of the existence of evidence which the prosecutor
knows tends to negate the guilt of the accused, mitigate the degree of the
offense, or reduce the punishment, except when disclosure is precluded or
modified by order of a court; and

(e) not direct or encourage investigators, law enforcement personnel,
employees or other persons assisting or associated with the prosecutor in a
criminal case to make an extrajudicial statement that the prosecutor would
be prohibited from making under [the Rules of Professional Conduct] .'

The Rules also state that a lawyer may not falsify evidence or advise their clients or witnesses to
do so, may not make frivolous discovery requests, should also make reasonable efforts to comply
with discovery requests, and should refrain from making personal statements about the
credibility of witnesses or the guilt or innocence of the accused."

The Virginia State Bar’s disciplinary process begins when a person files a complaint with the
Bar. A Virginia State Bar attorney, known as bar counsel, then investigates the claim.’ If
bar counsel determines that the complaint alleges credible evidence of misconduct that “could
reasonably be expected to support [the allegation] under a clear and convincing evidentiary
standard,” s/he will refer the complaint to the District Committee, composed of lawyers and non-

188 Td. at 429.

189 See Va. R. PROF’L CONDUCT 9 (noting that the Council of the Virginia State Bar is empowered “to regulate the
legal profession”).

160" ‘See generally VA. R. PROF’L ConDUCT.

‘6! Va. R. PROF’L CONDUCT 3.8.

Va. R. PROF’L CONDUCT 3.8.

Va. R. PROF’L CONDUCT 3.4.

Va.R.PROF’L ConDUCT 13-10. See also Guide to Lawyer Discipline, supra note 26.

Va.R. PROF’L CONDUCT 13-10(A). See also Guide to Lawyer Discipline, supra note 26.

162

135

lawyers, for further investigation. A subcommittee of the District Committee will then decide
if, based on the evidence, the complaint should be dismissed or referred to the District
Committee for a hearing.!®” If a hearing is held, bar counsel and the attomey under investigation
may call witnesses and present evidence.’ If the District Committee finds that the attorney
committed misconduct by clear and convincing evidence, it may sanction the attorney with a
private admonition or public reprimand.’ Serious misconduct will be referred to the
Disciplinary Board, which has the power to suspend an attorney’s license.!”” The State Bar is
not empowered to provide any direct remedy to the defendant who was harmed by the
misconduct.

Utility of Bar Complaint System to Address Prosecutorial Misconduct

While the Virginia State Bar’s disciplinary process is meant to serve as a means to investigate
and discipline the misconduct of all attomeys, it does not appear designed to effectively address
allegations of prosecutorial misconduct. There appears to have been few disciplinary actions
imposed against Commonwealth’s Attorneys and other prosecutors by the Virginia State Bar in
recent years. Of the more than 500 public disciplinary orders issued by Virginia State Bar
District Committees and the Disciplinary Board from 2008 to 2012, only three related to
prosecutors.!”! The nature of complaints not resulting i in public discipline, as well as discipline
imposed short of public reprimand, are confidential.!

Defendants, defense attorneys, other prosecutors, and judges—the persons most likely to witness
prosecutorial misconduct—may also be discouraged from filing a State Bar complaint because it
could adversely affect their relationship with the prosecutor.’ Asa 2011 study of prosecutorial
misconduct claims noted, “a bar complaint could itself negatively impact the outcome of ongoing
litigation, if the prosecutor’s need to defend against disciplinary proceedings, or simple
resentment at being reported to the authorities, results in less favorable treatment of the
defendant.”!”*

165 Va. R.PROF’L ConDUuCT 13-10(E)-(F). See also Guide to Lawyer Discipline, supra note 26.

187 Va.R.PROF’L CONDUCT 13-15. See also Guide to Lawyer Discipline, supra note 26.

168 Va. R.PROF’L CONDUCT 13-16. See also Guide to Lawyer Discipline, supra note 26.

169 Va. R. PROF’L CONDUCT 13-16(X). See also Guide to Lawyer Discipline, supra note 26.

179 Va. R. PROF’L CONDUCT 13-6. See also Guide to Lawyer Discipline, supra note 26.

‘| Disciplinary System Actions, VA. STATE Bar, http://www.vsb.org/si isciplinary-syst tions
(last visited Aug. 8, 2013).

These issues are not unique to Virginia. A 2011 review of prosecutorial discipline procedures found that many
state bars “actively discourage complainants from filing allegations of misconduct.” David Keenan, Deborah Jane
Cooper, David Lebowitz, & Tamar Lerer, The Myth of Prosecutorial Accountability after Connick v. Thompson:
Why Existing Professional Responsibility Measures Cannot Protect against Prosecutorial Misconduct, 121 Yale LJ.
Online 203, 236 (2011). Prosecutors in many other states who engage in misconduct are also rarely subject to state
bar discipline. Id. at 220-21.

See id. at 211.

ia

136

Furthermore, it appears that the State Bar’s complaint system is oriented to manage complaints
against retained counsel; thus, the public may not understand that State Bar proceedings are the
appropriate disciplinary forum to pursue any disciplinary action against a prosecutor.!”°

Recent Instances of Prosecutorial Negligence, Error, and Misconduct in Virginia

The extent to which Virginia prosecutors who have allegedly engaged in misconduct have been
investigated and disciplined is not entirely clear, as the Virginia State Bar disciplinary process is
confidential unless the attorney is publicly disciplined.'”°

In the previously-discussed Michael Hash case,!”’ the federal district court that granted habeas
relief to Hash described the prosecution’s behavior as “misconduct.”!” Shortly thereafter, the
Commonwealth’s Attorney who handled the case resigned.” However, it is unclear whether a
bar complaint was filed in the case. With respect to Justin Wolfe, '® one of Virginia’s Regional
Capital Defenders filed a Virginia State Bar complaint in 2011 against the Commonwealth’s
Attorney and Assistant Commonwealth’s Attorney who prosecuted the case. 181 The current
status of that complaint is unknown. !®?

Conclusion

The Virginia State Bar has established procedures by which a prosecutor, like any other attorney,
can be investigated and sanctioned for a violation of the Rules of Professional Conduct. Only a
small fraction—less than one percent—of the State Bar’s public disciplinary orders address
claims of prosecutorial misconduct. The Assessment Team, however, could not obtain
information related to the disciplinary policies of individual Commonwealth’s Attorney
offices,'®* nor could it assess the sufficiency of confidential investigations conducted by the
Virginia State Bar. The Assessment Team is unable to determine if known misconduct has been

"5 See Inquiry Form, VA. STATE Bak, http://www.vsb.org/inquiry_form.pdf (last visited Aug. 8, 2013). The State
Bar’s complaint form, for example, asks the complainant to list the “‘lawyer’s law firm, if known,” implying that the
attomey is in private practice. Id. The section of the form that asks the complainant to “[d]escribe your relationship
to the lawyer who is the subject of your Inquiry” does not include a category for prosecutors or Commonwealth’s
Attomeys. Id.

16 See Guide to Lawyer Discipline, supra note 26.

See supra notes 75-99 and 119-124 and accompanying text.

18 Hash v. Johnson, 845 F. Supp. 2d 711, 748-51 (W.D.Va. 2012).

Donnie Johnston, ‘Everything Is So New’ As Free Man, THE FREE LANCE-STAR (Fredericksburg, Va.), Apr. 5,
2012.

180 See supra notes 125-139 and accompanying text.

‘8! Ethics Complaint Filed against Ebert, Va. Lawyers WEEKLY, July 20, 2011,
http: ivalanyersweekly com/viwblog/2011/07/20/ethics-complaint-filed-against-ebert/.

18" The Commonwealth’s Attorney and Assistant Commonwealth’s Attorney remain in office. Commonwealth's

Attorney, PRINCE WILLIAM CnTy., VA, _http://www.pwcgov.org/gover ca/Pages,
Attomey.aspx (last visited Aug. 8, 2013) (listing Paul Ebert as Commonwealth’s Atiomey); Assist
Commonwealth's Attorneys, PRINCE WILLIAM Cnr

http://www.pwcgov.org/government/courts/ca/Pages/A ssistant-C ommonwealths- A ttomeys.aspx (last visited hog, 8
2013) (listing Richard Conway as Assistant Commonwealth’s Attorney).

The Richmond Commonwealth’s Attorney Office indicated that it has “no policies and procedures to discover
misconduct.” RICHMOND COMMONWEALTH’S ATTORNEY SURVEY, supra note 36, at 9.

137

disclosed to the criminal defendants in whose cases it occurred. Thus, the Assessment Team was
unable to determine if Virginia is in compliance with Protocol #5.

Recommendation

The following recommendations seek to ensure that errors, even if unintentional, are consistently
identified so that prosecutors, Commonwealth’s Attorney offices, and the criminal justice system
can learn from past errors and prevent future errors. The recommendations also seek to better
ensure that there is investigation and, where appropriate, discipline of prosecutors who engage in
misconduct.

Virginia defendants who have been convicted due to negligence, error, and misconduct in the
past have often not received relief until several years after the misconduct occurred. Establishing
internal policies, standards, and training could further encourage prosecutors to report and assist
Commonwealth’s Attorney offices in preventing future instances of negligence, error, and
misconduct.

As the U.S. Supreme Court has implied, bar discipline—or the specter of discipline—may be the
only way to enforce discovery rules and Brady obligations, as well adherence to the additional
duties imposed on prosecutors through the Rules of Professional Conduct. To ensure that claims
of prosecutorial misconduct receive the same level of review as other professional conduct
violations such as financial malfeasance, the Virginia State Bar disciplinary counsel should
initiate an investigation whenever there is an opinion by a state or federal judge indicating a
finding of prosecutorial misconduct, whether or not the court found the error prejudicial. This
entity should automatically begin an ethics investigation in any case in which a federal or
Virginia court finds that a prosecutor knowingly violated Brady or otherwise acted unethically.
A State Bar complaint should not be required. The State Bar’s publicly-available materials on
the complaint process should also be amended to make certain that individuals seeking to raise
prosecutorial misconduct claims are not unduly discouraged.

Virginia should consider establishing professional responsibility units in the Commonwealth
staffed by prosecutors and charged with investigating claims of negligence, error, and
misconduct.’

14 See, e.g., Office of Professional Responsibility (OPR) Home, U.S. Dep't oF Justice, http://www,justice.gov/opr/
(last visited Aug. 8, 2013) (describing OPR’s role to investigate allegations of misconduct involving Department
attomeys). A similar unit was established by the Dallas County, Texas, District Attomey in 2007. Temi Moore,
Prosecutors Reinvestigate Questionable Evidence: Dallas Establishes “Conviction Integrity Unity”, CRIM. JUST.,
Fall 2011, at 4.

138

F. Protocol #6

The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the prosecution team,
including training relevant to capital prosecutions.

Attorneys licensed to practice law in Virginia, including Commonwealth’s Attorneys, are
required to complete twelve hours of continuing legal education (CLE) coursework every year,
including two hours on ethics or professionalism.’® There are no additional requirements for
Commonwealth’s Attorneys, including prosecutors who handle death penalty cases.

The Virginia General Assembly has established the Commonwealth’s Attorneys’ Services
Council (CASC) “to ensure the upgrading of criminal justice administration by providing and
coordinating training, education and services for attorneys for the Commonwealth.” ®° While
CASC offers several CLE courses, none of the scheduled courses, as of August 2013, appear to
address death penalty issues.'®” Furthermore, a planned homicide training program, which might
include training on capital litigation, is listed as “SUSPENDED PENDING FUNDING.”!® The
Richmond Commonwealth’s Attorney has also stated that its attorneys no longer attend some of
the out-of-state training conferences due to budget constraints.

While some Virginia Commonwealth’s Attorney offices may require their staff to attend
additional trainings that address death penalty issues, or may have developed their own in-house
capital litigation training programs, the Assessment Team was unable to obtain the information
necessary to make this determination.'®? The Richmond Commonwealth’s Attorney Office,
however, states that prosecutors who handle capital cases are “encouraged but not required to
attend” training programs offered by CASC and the Virginia Association of Commonwealth
Attorneys. |!

Conclusion

While CASC provides some training programs for Virginia’s Commonwealth’s Attorneys, it
appears that funding for trainings relevant to death penalty prosecutions may be insufficient.
The Assessment Team could not, however, determine if Commonwealth’s Attorneys throughout
Virginia require their staff to attend the CASC, VACA or other trainings, nor could the
Assessment Team determine what, if any, in-house training requirements Commonwealth’s
Attorneys have imposed. Accordingly, the Team was unable to determine if Virginia is in
compliance with Protocol #6.

‘8 Mandatory Continuing Legal Education Regulations, Va. STATE Bar, _http://www.vsb.org/pro-
guidelines/index.php/mcle-regs/ (last visited Aug 8, 2013). There are some exceptions to the CLE requirement, but
they are not relevant to this discussion. See id.

186" Va. CODE ANN. § 2.2-2617(A) (2013). Such an entity or entities could be housed within the Virginia State Bar.
‘87 Training Programs, COMMONWEALTH’S ATT’Ys’ SERVS. CounctL,
http://www, cas.state.va.us/traini. htm (last visited Aug. 8, 2013).

189 RICHMOND COMMONWEALTH’S ATTORNEY SURVEY, supra note 36, at 3.
180 See supra notes 33-36 and accompanying text.
191 RICHMOND COMMONWEALTH’S ATTORNEY SURVEY, supra note 36, at 3.

139

Recommendation

Analogous to the special training required of defense counsel who handle capital cases, which is
imposed by Virginia law, the Virginia Indigent Defense Commission, and individual capital
defender offices, the Assessment Team strongly encourages Virginia to impose training
requirements, accompanied by adequate funding to support participation in such trainings, for
prosecutors on handling the special issues presented in death penalty cases, including training on
the exercise of discretion as described under Protocol #1. In addition, given that federal courts
have recently reversed two Virginia murder convictions because of Brady error, a component of
the training must include specialized courses on disclosure duties under federal and state law. As
described under Protocol #3, such trainings should be conducted in partnership or conjunction
with capital defense counsel in order to offer insight on the varying forms of potential
exculpatory and mitigating evidence that should be disclosed under Brady.

140

CHAPTER SIX
DEFENSE SERVICES
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

Defense counsel competency is perhaps the most critical factor determining whether an
individual will receive the death penalty. Although anecdotes about inadequate defenses long
have been part of trial court lore, a comprehensive 2000 study! showed definitively that poor
representation has been a major cause of serious errors in capital cases as well as a major factor
in the wrongful conviction and sentencing to death of innocent defendants.

Effective capital case representation requires substantial specialized training and some
experience in the complex laws and procedures that govern a capital case in a given jurisdiction,
as well as the resources to conduct a complete and independent investigation in a timely way.
Full and fair compensation to the lawyers who undertake such cases also is essential, as is proper
funding for experts.

Under current case law, a constitutional violation of the Sixth Amendment right to effective
assistance of counsel is established by a showing that the representation was not only deficient
but also prejudicial to the defendant—i.e., there must be a reasonable probability that, but for
defense counsel’s errors, the result of the proceeding would have been different.? The 2000
study found that between 1973 and 1995, state and federal courts undertaking reviews of capital
cases identified sufficiently serious errors to require retrials or re-sentencing in 68 percent of the
cases reviewed.” In many of those cases, more effective trial counsel might have helped avert
the constitutional errors at trial that ultimately led to relief.

In the majority of capital cases, however, defendants lack the means to hire lawyers with the
knowledge and resources to develop effective defenses. In some jurisdictions, the lives of these
defendants can sometimes rest with new or incompetent court-appointed lawyers or
overburdened public defender services provided by the state.

Although lawyers and the organized bar have provided, and will continue to provide, pro bono
representation in capital cases, most pro bono representation is limited to post-conviction
proceedings. Only the jurisdictions themselves can address counsel representation issues in a
way that will ensure that all capital defendants receive effective representation at all stages of
their cases. Jurisdictions that authorize capital punishment therefore have the primary—and
constitutionally mandated—responsibility for ensuring adequate representation of capital
defendants through appropriate appointment procedures, training programs, and compensation
measures.

James S. LIEBMAN ET AL., A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000), available
at http://www2.law.columbia.edu/instructionalservices/liebman.

Strickland v. Washington, 466 U.S. 668, 694 (1984).

Liebman, supra note 1, at 5-6.

141

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW

When capital punishment was reinstated by the Virginia General Assembly in 1975, there was no
formal appointment process nor were there standards governing the qualifications of counsel
appointed to capital cases.’ As described by the U.S. Court of Appeals for the Fourth Circuit in
1991, “Virginia has not adopted any formal, centralized mechanism for the appointment of
counsel to indigent criminal defendants; rather, it appears that the presiding judge simply
contacts and appoints a member of the bar to represent an indigent defendant.”> That same year,
Virginia passed legislation instructing the Public Defender Commission (Commission) and the
Virginia State Bar to promulgate “standards for attorneys admitted to practice law in Virginia
who are qualified to represent defendants charged with capital murder or sentenced to death” at
each stage of capital proceedings.° In 1999, the Commission adopted qualification requirements
promulgated by the Commission, the Virginia State Bar, and the Supreme Court of Virginia.’

In 2002, the Virginia General Assembly authorized the creation of four Regional Capital
Defender offices (RCD) to provide representation at trial and direct appeal for the
Commonwealth’s indigent capital defendants and death row inmates.® Notably, prior to 2004,
the year in which the RCDs began accepting appointments, Virginia tried 166 defendants at a
capital trial since 1976, of which 140 were sentenced to death.° This i is a death-sentencing rate
for cases that went to trial of approximately eighty-four percent.!° Subsequently, from 2005
through 2011, far fewer capital cases have resulted in death sentences. During this period, in the
seventeen instances in which a capital case was brought to trial, a death sentence was imposed in
eight of the cases, resulting in a death-sentencing rate of forty-seven percent.'?

A. Virginia’s Indigent Legal Representation System
Virginia’s current indigent defense representation system for capital defendants and death row

inmates consists of four RCD offices, the Virginia Capital Representation Resource Center
(VCRRC), and a list of private counsel eligible to be appointed by the courts at trial, on direct

‘Va. Conk § 18.2-32 (1975).

5 Poyner v. Murray, 964 F.2d 1404, 1422 (1991).

® Va. CoDE ANN. § 19.2-163.8(E) (2013). In 1991, Virginia also adopted legislation specifically providing “one
or more attorneys” from a list of counsel to indigent defendants accused of a capital offense at trial, and if sentenced
to death, on appeal and during state habeas corpus proceedings. VA. CODE ANN. §§ 19.2-163.7 (1991), 19.2-159(C)
(1975) (general appointment of counsel to indigent criminal defendants statute).

Va. Indigent Def. Comm'n Survey Response, provided to Paula Shapiro by Jae K. Davenport, Standards of
Practice Enforcement Att’y, Va. Indigent Def. Comm’n (Apr. 4, 2012) (on file with author) [hereinafter VIDC
Survey Response].

SPANGENBERG GROUP, A COMPREHENSIVE REVIEW OF INDIGENT DEFENSE IN VIRGINIA 32 (2004) [hereinafter
SPANGENBERG].

See Virginia Capital Litigation CAPITAL CASE CLEARINGHOUSE,
ee /Iwww.vc3. vre/downloadCapital¥20C ase 20D ata0670Chart20for%20W ebsite xls (last visited July 29,
201
Ww a Of these 140 cases in which a death sentence had been imposed, thirty were later removed from death row
due to reversal of their death sentence on appeal (in which no death sentence was subsequently reimposed); pardon;

ion; death (non- or suicide. Id.

1d.

142

appeal, and during state habeas corpus proceedings.'? The RCDs, as well as the
Commonwealth’s public defender offices, are overseen by the Virginia Indigent Defense
Commission (formerly the Public Defender Commission).'* Annual appropriations by the
Virginia General Assembly to the Commission and to the judiciary’s Criminal Fund constitute
the primary source of funding for capital indigent defense representation in Virginia.

1. The Virginia Indigent Defense Commission
In 2004, the Virginia General Assembly established the Commission to fulfill the

Commonwealth’s constitutional obligation to provide counsel for indigent persons accused of
crimes that carry a potential penalty of incarceration or death.'° The Commission is responsible
for hiring Virginia’ s Capital Defenders and evaluating the performance of counsel employed by
the RCDs.'® While the Commission does not appoint counsel to represent capital defendants or
death row inmates,” its responsibilities include overseeing the certification of all court-appointed
attomeys who provide indigent criminal defense representation, including death penalty
representation; maintaining a list of attomeys qualified to provide representation to indigent
capital defendants; developing and enforcing the qualification standards required of capital and
non-capital defense attorneys as well as the standards of practice for non-capital criminal cases;
and providing or approving training _programs to ensure attorneys meet the qualifications
required to accept court appointments. '® The Commission also administers the budget to each of
the RCDs."

2. Court-appointed Counsel

Virginia law guarantees indigent capital defendants appointment of at least two attomeys from a
list of certified counsel at trial and on direct appeal and at least one attomey from a list of
certified counsel during state habeas corpus proceedings.”°

In 2002, the Virginia General Assembly authorized the creation of four Regional Capital
Defender offices: Central, established in 2002, and North, Southeast, and Western, established in

2 See Va. INDIGENT DEF. CoMM’N, 2011 ANNUAL REPORT (Sept. 26, 2011), available at
http://leg2.state.va.us/dls/h&sdocs.nsf/By+Y ear/RD2112011/$file/RD211.pdf [hereinafter VIDC 2011 Annual
Report]; Va. CAPITAL REPRESENTATION RES. CTR., http://www.verrc.org/ (last visited July 29, 2013).
Va. CODE ANN. § 19.2-163.01(A)(7) (2013).
‘4 VIDC Survey Response, supra note 7, at 15; VA. CODE ANN. §§ 19.2-163, 53.1-40 (2013).
5 §.B. 330, Legis. 884 (Va. 2004), codified at Va. CoDE ANN. § 19.2-163.01 (2004).
‘6 Va. CODE ANN. § 19.2-163.01(A)(8)-(9) (2013).
VIDC Survey Response, supra note 7, at 1, 5.
18 Va. CoDE ANN. § 19.2-163.01(A)(1), (3)-(5); 53.1-40 (2013) (italics added); VIDC Survey Response, supra
note 7, at 3; Va. CoDE ANN. §§ 19.2-163, 53.1-40 (2013); Home, Va. INDIGENT DEF. COMM’N,
://www.indi virginia.gov/index.htm (last visited July 28, 2013). See also Protocol #3, infra notes
199-240 and accompanying text, for detailed information on the responsibilities of the C ission in administeri
indigent defense services in death penalty cases.
18 ‘VIDC Survey Response, supra note 7.
Va. CoDE ANN. § 19.2-163.7 (2013). The statute is unclear whether two attomeys are required to be assigned
during state habeas corpus proceedings. Id. (“If the sentence of death is affirmed on appeal, the court shall, within
30 days after the decision of the Supreme Court of Virginia, appoint counsel from the same list, or such other list as
the Supreme Court and the Commission may establish, to represent an indigent prisoner under sentence of death in a
state habeas corpus proceeding.).”

20

143

2003.71. When appointed by the court, the RCDs provide representation to capital defendants as
lead counsel at trial and on direct appeal.”” Before the RCDs began accepting appointments by
the court in 2004, public defenders from local Public Defender Offices and private counsel were
appointed by the circuit courts to represent Virginia’s indigent capital defendants at trial and on
direct appeal.”? From 1996 until 2010, capital defendants were represented on direct appeal by
the statewide Appellate Defender, until that office closed due to insufficient funding.”*

3. Virginia Capital Representation Resource Center

The Virginia Capital Representation Resource Center (VCRRC) is a not-for-profit law firm
operating since 1992 “dedicated to providing direct representation in death penalty cases in the
Commonwealth of Virginia and assisting attorneys representing death-sentenced inmates or
those facing possible death sentences.”* VCRRC provides representation during Virginia
habeas corpus, federal habeas corpus, and state clemency proceedings.”” VCRRC also provides
training and continuing legal education seminars for appointed and pro bono counsel in capital
cases, when feasible.””

B. Appointment, Qualifications, Training, Compensation of, and Resources Available to
Capital Attorneys at Trial, Direct Appeal, and State Habeas Corpus Proceedings

1. Appointment of Capital Counsel

For indigent defendants charged with a capital offense, upon request, the circuit court must
appoint at least two attorneys from a list of qualified counsel maintained by the Commission.”
Inclusion on the list is based on conformity with qualification standards for attorneys, determined
by the Supreme Court of Virginia and the Commission, in conjunction with the Virginia State
Bar? Counsel appointed on or after July 1, 2004, is required by statute to include at least one
Capital Defender. The Virginia Code provides the circuit court judge the authority to “appoint
counsel who is not included on the list, but who otherwise qualifies under the standards
established and maintained by the Court and the Commission.”*!

21 VIDC 2011 Annual Report, supra note 12, at 4-5.

22 Va. CODEANN. § 19.2-163.4 (2013).
°8 Jeremy P. White, Establishing a Capital Defense Unit in Virginia: A Proposal to Increase the Quality of
Representation for Indigent Capital Defendants, 13 Cap. DEF. J. 323, 349-50 (2001).

Najah Farley, Virginia Death Penalty and Appellate Defense, HARVARD L. & PoL’y REV., Dec. 7, 2011; see
also SPANGENBERG, supra note 8, at 7.
5 Va. CAPITAL REPRESENTATION RES. CTR., http://www.verre.org/ (last visited July 29, 2013).
Va. Capital Representation Res. Ctr. (VCRRC) Survey Response, provided by Robert E. Lee, Exec. Dir,
VCRRC, to Paula Shapiro at 1, 7 (Apr. 5, 2012) (on file with author) [hereinafter VCRRC Survey Response];
Interview by Mark Pickett and Paula Shapiro with Robert E. Lee, Exec. Dir, VCRRC (Apr. 11, 2012) (on file with
author) [hereinafter VCRRC Interview].
27 Va. CAPITAL REPRESENTATION RES. CTR., http://www.verre.org/ (last visited July 29, 2013).
8 Va. CODEANN. § 19.2-163.7 (2013).
9 Va. CopE ANN. § 19.2-163.8 (2013) (recommending that the standards consider certain factors). See also
Statutory Authority and Qualifications, VA. INDIGENT DEF. CoMM’N,
http://www. publicdefender.state.va.us/serving.htm (last visited July 29, 2013). The qualification standards are
discussed in more detail in Protocol #2, infra notes 163-198 and accompanying text.
30 Va. CODE ANN. § 19.2-163.7 (2013).
5! Va. CODE ANN. § 19.2-163.8(C) (2013).

26

144

If a death sentence is imposed, the circuit court judge who presided over the capital trial will
appoint two attorneys from the list or “qualified under the standards” to represent the defendant
on direct appeal.*? Generally, trial counsel will be appointed to represent the death-sentenced
defendant on direct appeal.*°

Within thirty days of the decision of the Supreme Court of Virginia affirming the death sentence
on direct appeal, the circuit court is required to appoint an attorney from the list of certified
counsel maintained by the Commission to represent the defendant during state habeas corpus
proceedings." Generally, the VCRRC, plus an additional private attomey, will be appointed to
provide representation at this stage.*° According to the VCRRC, state habeas counsel will also
provide representation during federal habeas corpus proceedings and state clemency
proceedings.”

2. Qualifications and Certification of Capital Counsel

All capital counsel providing representation in Virginia must be active members in good
standing of the Virginia State Bar or admitted to practice pro hac vice.*” The Virginia State Bar
requires all licensed attorneys to participate in a minimum of twelve hours of approved
continuing legal education (CLE) every year.*®

All attorneys appointed to represent indigent capital defendants and death row inmates, including
attorneys employed by the RCDs, as well as private counsel seeking appointment, must meet the
qualification standards for capital defense representation.*” The standards, adopted i in 1999, do
not apply to attorneys privately retained by a capital defendant or death row inmate."

The appointment criteria include experiential as well as training requirements.’ All attomeys
seeking recertification for appointment to a death penalty case must complete the requisite ten
hours of required training evel j, two years.*” The Commission approves specialized courses to
train attorneys for this purpose. *?

Va. CODEANN. §§ 19.2-163.7, 19.2-163.8(C) (2013).
x VA. CODE ANN. § 19.2-163.7 (2013).
Id.
VCRRC Survey Response, supra note 26, at 1, 7.
3° Id.; VCRRC Interview, supra note 26.
Va. Sup. CT. R.1A:4. Rule 1A:4 governs out-of-state lawyers admitted to practice pro hac vice.
38 15 VA. ADMIN. CobE § 5-70-20(A) (2013).
3 Va. Cope ANN. §  19.2-163.8 (2013); Home, VA. INDIGENT DEF. COMM’N,
http://www.indi virginia.gov/index.htm (last visited July 29, 2013).
VIDC Survey Response, supra note 7, at 3.
“| Va. CopE ANN. § 19.2-163.8(A) (2013). See also Statutory Authority and Qualifications, VA. INDIGENT DEF.
Comm’N, http://www.publicdefender:state.va.us/serving.htm#C APITALTRIALCOUNSEL (last visited July 29,

2012); Attorney Certification System (ACeS), VA. INDIGENT DEF. COMM’N,
http://www. publicdefender.state.va.us/certapp.htm (last visited July 29, 2013).
® ” Statutory Authority and Qualifications, va. INDIGENT DEF. ComM’N,
http://www. publicdefender.state.va.us/serving.htm#C A PITA eR ANSEL (last visited July 29, 2013);
Attorney Certification System (ACeS), INDIGENT DEF. CommM’N,
http: /www.publicdefender.state.va.us/certapp.htm (last viet July 29, 2013).

Va. CODEANN. § 19.2-163.01(A)(2), (5) (2013); VIDC Survey Response, supra note 7, at 17.

145

3. Compensation and Additional Resources

The Virginia General Assembly provides funding for the provision of indigent defense services
in the Commonwealth, including the cost of appointed counsel, expert services, and any other
ancillary costs associated with the provision of capital defense.“* In 1984, Virginia permitted
fees for court-appointed attorneys to be set at the court’s discretion.” Two years later, the
maximum amount a capital defender could receive for representation in a death penalty case was
$650.'° In 2000, the average compensation for defense counsel in capital cases was $29,800.17
Eventually, by 2002 and in light of a report issued by the Virginia General Assembly’s Joint
Legislative and Audit Review Commission finding the amount of compensation for a capital
case to be inadequate, attorneys’ fees for indigent capital defense increased to $125 per hour,
with no cap on total compensation.”® Currently, court-appointed capital defense counsel are
compensated at an hourly rate that should be “an amount deemed reasonable by the court,”
which cannot exceed $200 per hour for in-court and $150 for out-of-court services.”

The General Assembly provides annual appropriations to the Commission, which in turn
administers the funding to each of the four Regional Capital Defender offices.°” RCD attomeys,
mitigation specialists, and investigators receive salaries funded through each RCD’s budget. u

The General Assembly also appropriates funding to the Commonwealth’s “Criminal Fund,”
which supports payment of private, court-appointed counsel fees, as well as expert and ancillary
services, including investigative and mitigation assistance, for indigent capital defendants.°” The
Criminal Fund is administered by the Office of the Executive Secretary of the Supreme Court of
Virginia.® Initial requests for payment of counsel’s fees or ancillary and expert services must be
made to the circuit court.

Annual appropriations from the General Assembly through the Virginia State Bar and federal
Criminal Justice Act payments fund the VCRRC.” Courts have not authorized funding for
investigative, mitigation, expert or other ancillary assistance to death row inmates for use during
preparation or presentation of state habeas corpus claims.*°

See supra note 14 and accompanying text.
SPANGENBERG, supra note 8, at app. A-10.
J. Lecis. AuDir & REV. COMM’N, VA. ASSEMB.: REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL PUNISHMENT 24
(2002) [hereinafter J LARC].
“7 ACLU of VA., UNEQUAL, UNFAIR AND IRREVERSIBLE: THE DEATH PENALTY IN VIRGINIA 14 (2000).
SPANGENBERG, supra note 8, at appendix A-5, A-9.
“9 Va. CODE ANN. § 19.2-163(2) (2013); Telephone Interview by Paula Shapiro with John Rickman, Director of
Fiscal Services, and Mary Gilbert, Executive Secretary Office, Sup. Ct. of Va. (Apr. 20, 2012) (on file with author).
50 VIDC Survey Response, supra note 7, at 11-12; VIDC 2011 Annual Report, supra note 12, at 15.
VIDC Survey Response, supra note 7, at 11-12.
2 Va. CODEANN. §§ 19.2-326, 17.1-606, 19.1-163 (2013).
Interview with John Rickman and Mary Gilbert, supra note 49.
Va. CODE ANN. § 19.2-163 (2013) (“The trial judge . .. shall have the sole discretion to fix the amount of
compensation to be paid counsel appointed by the court to defend a felony charge that may be punishable by
death.”); VIDC Survey Response, supra note 7, at 2, 9.
55 VCRRC Interview, supra note 26.

Id.

48

56

146

C. Representation During Capital Federal Habeas Corpus Proceedings

Pursuant to 18 U.S.C. § 3599, an inmate under a death sentence imposed by a state court
petitioning for a federal writ of habeas corpus in one of Virginia’s two federal judicial districts—
Eastern or Western—is entitled to appointed counsel and other resources, if s/he “is or becomes
financially unable to obtain adequate representation or investigative, expert, or other reasonably
necessary services.”*” Staff attorneys from the VCRRC, along with other court-appointed
attorneys, regularly represent the Commonwealth’s death row inmates in federal habeas corpus

proceedings.°**

D. Appointment and Qualifications of Attorneys Representing Death Row Clemency
Petitioners

Virginia has not promulgated any rules, regulations, laws, or procedures that require the
appointment of counsel to Commonwealth death row inmates petitioning for clemency. VCRRC,
staff attomeys, however, regularly represent Virginia death row inmates at this stage.”
Furthermore, in 2009, the U.S. Supreme Court clarified that 18 U.S.C. § 3599 permits, but does
not require, “federally appointed counsel to represent their clients in state clemency proceedings
and entitles them to compensation for that representation.”©? The United States Code also
provides a death row inmate the right to funds for “investigative, expert, or other services upon a
showing they are reasonably necessary for the representation of the defendant.”

57 18 U.S.C. § 3599(a)(2) (2013).

58 VCRRC Survey Response, supra note 26, at : VCRRC Interview, supra note 26.

VCRRC Survey Response, supra note 26, at

% 18 U.S.C. § 3599(e); Harbison v. Bell, 556 U S. 180, 194 (2009) (stating that the petitioner’s “case underscores
why it is ‘entirely plausible that Congress did not want condemned men and women to be abandoned by their
counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.””)
(citing Hain v. Mullin, 436 F.3d 1168, 1175 (10th Cir. 2006) (en banc)).

*' 18 U.S.C. § 3599(f) (2013).

147

II. ANALY SIS

This Chapter relies heavily on the 2003 ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, which are recognized as the standard of care in the
defense of death penalty cases." The ABA Guidelines are regularly cited by state and federal
courts, including the U.S. Supreme Court, to assess counsel performance and ensure adequate
funding and resources for defense services in death penalty cases. In addition, several states
have formally adopted the ABA Guidelines, either through legislation or by court rule, along with
numerous bar associations, defender organizations, and commissions. 63

The Virginia Assessment Team submitted surveys to various capital defender agencies in the
Commonwealth regarding the training, qualifications, certification, and compensation of court-
appointed capital defenders, the appointment process, access to resources, and other information
relevant to the analysis in this Chapter.’ Responses to the survey and the entities’ policies are
discussed below.

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team's
analysis of the Commonwealth's compliance with the Protocol and, where appropriate, the
Assessment Team’s rec dations for reform.

A. Protocol #1

In order to ensure high quality legal representation for all individuals facing the
death penalty, each death penalty jurisdiction should guarantee qualified and
properly compensated counsel at every stage of the legal proceedings—pretrial
arr and plea bargaini: trial, direct appeal, all certiorari
petitions, state post-conviction and federal habeas corpus, and clemency
proceedings. Counsel should be appointed as quickly as Possible prior to any
proceedings. At minimum, satisfying this standard requires the following (as
articulated in Guideline 4.1 of the ABA Guideli on the A and
Performance of Defense Counsel in Death Penalty Cases (ABA Guidelines):

a. At least two attorneys at every stage of the proceedings qualified in
accordance with ABA Guidelines for the Appoi and Performance of
Defense Counsel in Death Penalty Cases, Guideline 5.1 (reproduced below as
Protocol #2), an investigator, and a mitigation specialist.

52 See AM. BAR Ass’N, ABA Guidelines for the Appointment and Performance of Defense Counsel in Death

Penalty Cases, 31 HorsTra L. REV. 913, 984-85 (2003) [hereinafter ABA Guidelines].

For more information on the jurisdictions and entities that have adopted some or all of the ABA Guidelines, see
ABA DEATH PENALTY REPRESENTATION PROJECT, Implementation of the 2003 ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases (Jan. 2012), available at
http://www.americanbar.org/co: ib ized/Death_Penalty_R ion/impl ition_fact_sh
eet_01_2012.authcheckdam.pdf.

Surveys were submitted to the four Regional Capital Defender Offices (RCDs), the Virginia Indigent Defense
Commission, the Virginia Capital Case Clearinghouse, and the Virginia Capital Representation Resource Center. A
copy of the survey is reproduced in the Appendix to this Report, infra.

148

The appointment of counsel, a mitigation specialist, and an investigator as early as possible in a
potential death penalty case bears not only on the ability of the defense team to effectively
prepare for trial, but may also prevent unnecessary litigation regarding the defendant’s death
penalty eligibility. The ABA Guidelines anticipate that the “core members” of the capital
defense team include two qualified attorneys, an investigator, and a mitigation specialist, because
a capital case “requires skills and expertise not generally possessed by attorneys, most notably
for the investigation of the offense and the extensive investigation of social history that must be
done.”

Virginia law guarantees indigent capital defendants appointment of at least two attorneys from a
list of qualified counsel during pretrial proceedings, at trial, on direct appeal, and for all certiorari
petitions, and at least one attorney from a list of qualified counsel during state habeas corpus
proceedings.’’ No Virginia rule or law guarantees access to an investigator and mitigation
specialist at any stage of a capital case. With respect to federal habeas corpus proceedings,
federal law provides counsel and access to ancillary services to every Virginia death row inmate
seeking federal habeas relief, and that counsel may, but is not required, to continue to provide
representation during state clemency proceedings. No provision of Virginia law guarantees
appointment of counsel during clemency proceedings in death penalty cases. Virginia law does
not address the qualifications of retained counsel in death penalty cases, including cases in which
the defendant can afford only one attorney.

Timing of Appointment of Counsel

Pursuant to the Virginia Code, at least two capital-qualified attorneys are to be appointed by the
circuit court at the time an indigent defendant is charged with a capital offense. As of 2004, at
least one attorney must be appointed from the local Regional Capital Defender office (RCD).”
Typically, the circuit court judge will appoint counsel at arraignment.”! However, often the
Commonwealth’s Attorney will initially file a case “as some lower grade of homicide and the
defendant will not get two [capital qualified] attorneys until either a warrant or indictment is
filed alleging capital” charges.”

85 Jill Miller, The Defense Team in Capital Cases, 31 HorsTra L. REV. 1117, 1120 (2003) (“Today, the defense

team concept, in which clients are provided with two attomeys, a mitigation specialist, and an investigator, is well-
established and has become the accepted ‘standard of care’ in the capital defense community.”).
6 Miller, supra note 65, at 1122-23 (discussing ABA Guideline 10.4(C)(2)(a)).
8” Va. CODE ANN. § 19.2-163.7 (2013). It is unclear whether two attomeys are required to be assigned during state
habeas corpus proceedings. Id. (“If the sentence of death is affirmed on appeal, the court shall, within 30 days after
the decision of the Supreme Court of Virginia, appoint counsel from the same list, or such other list as the Supreme
Court and the Commission may establish, to represent an indigent prisoner under sentence of death in a state habeas
corpus proceeding.).” According to the Virginia Capital Representation Resource Center (VCRRC), which provides
representation in almost all capital state habeas cases arising in Virginia, “[iJn the past ten years or more, courts have
been appointing more than one lawyer, usually with both being qualified under the list provided to the courts.”
VCRRC Survey Response, supra note 26, at 2.
% 18 U.S.C. § 3599(e) (2013); McFarland v. Scott, 512 U.S. 849, 856-57 (1994); Harbison v. Bell, 129 S.Ct.
1481, 1486 (2009).
* VA. CODE ANN. § 19.2-163.7 (2013).

Id.
7\ Qualifications of court-appointed capital counsel will be discussed below and under Protocol #2.
” Capital Defender Office Central Survey Response, provided to Paula Shapiro by David Baugh, Capital
Defender, RCD Central, at 3 (Apr. 4, 2012) (on file with author) [hereinafter RCD Central Survey Response].

149

The time of appointment may vary depending on the practice of the presiding circuit court judge
and the time when capital charges are filed or an indictment retumed. 3 Tn some cases, RCDs are
able to request and obtain appointment as soon as it appears an arrest is likely in a potential
capital case. For example, an RCD may contact the circuit court when informed of a potential
capital case in order to ensure it is appointed.”” One RCD monitors the local news for potential
cases and contacts the Commonwealth’s Attorney to determine whether capital charges may be
brought.”° In such instances, the RCD will request appointment by the circuit court “even if [the
case is] only filed as a first degree murder case at the time.””” In other jurisdictions, judges
typically appoint the local RCD automatically, even if no capital indictment has been filed.

Because counsel are to be appointed “by the circuit court,” however, judges may preclude
appointment of capital-qualified counsel in the general district court.” According to RCD
North, appointment of capital-qualified counsel may occur as late as six months after arrest. It
appears, therefore, that counsel is not always appointed as quickly as possible prior to the
commencement of capital proceedings.

Once a capital defendant is sentenced to death, the circuit court judge who presided over the
capital trial will appoint counsel to provide representation on direct appeal.®*' Capital defendants
sentenced to death are typically represented by trial counsel on direct appeal, unless another
qualified attorney is appointed.“* Within thirty days of the Supreme Court of Virginia affirming
the death sentence on direct appeal, the circuit court judge must appoint counsel for
representation during state habeas corpus proceedings.* In practice, according to VCRRC, its
attorneys immediately begin working on an inmate’s case upon the affirmation of a death
sentence on direct appeal.®

3 Interview by Mark Pickett and Paula Shapiro with Ed Ungvarsky, Capital Defender, RCD North (Apr. 4, 2012)
(on file with author).

4 Tnterview with Ed Ungvarsky, supra note 73.

75 Regional Capital Defender Southeast Survey Response, provided to Mark Pickett by Doug Ramseur, Capital
Defender, RCD Southeast, at 2 (Mar. 19, 2012) (on file with author) [hereinafter RCD Southeast Survey Response];
Regional Capital Defender North Survey Response, provided to Paula Shapiro & Mark Pickett, by Ed Ungvarsky,
Capital Defender, RCD North, at 2 (Apr. 4, 2012) (on file with author) [hereinafter RCD North Survey Response].

7 RCD Central Survey Response, supra note 72, at 1 (“This office has never been required to await notice of
intent to seek death prior to appointment.”)

RCD Central Survey Response, supra note 72, at 1.

Id. at 1-3. The Central Regional Capital Defender reported that “sometimes if there is a potential, but unfiled,
capital case, [RCD Central] can get itself appointed. In other cases this office has gotten into the case earlier.” Id. at

B

3.
7 Va. CODE ANN. § 19.2-163.7 (2013) (“. . . the judge of the circuit court, upon request for the appointment of
counsel, shall appoint . . .”).

Interview with Ed Ungvarsky, supra note 73. RCD North also states that the delay in appointment may occur in
cases involving multiple co-defendants, in which case RCD North will “attempt to be appointed to the co-defendant
most likely to get [a] death sentence.” RCD North Survey Response, supra note 75, at 3.

51 RCD North Survey Response, supra note 75, at 1.

RCD Southeast Survey Response, supra note 75, at 23.

Va. CODE ANN. § 19.2-163.7 (2013). Virginia law provides limited time for death row inmates to investigate
and prepare a state habeas petition. VA. CODE ANN. § 8.01-654.1 (2012). For more information on capital state
habeas corpus proceedings in Virginia, see Chapter Eight on State Habeas Corpus Proceedings.

® VCRRC Survey Response, supra note 26, at 2. In fact, the VCRRC has “assisted and filed materials in cases
without formal appointment to the representation.” Id.

82
83

150

Provision of Mitigation Specialists and Investigators

Attorneys appointed to represent an indigent capital defendant or death row inmate may have—
but are not guaranteed—access to investigators and mitigation specialists at trial, on direct
appeal, during state habeas corpus, federal habeas corpus, and clemency proceedings. Indigent
capital defendants and death row inmates represented at trial or on direct appeal by one of the
four RCDs have access to the representing office’s staff investigators and mitigation
specialists. Capital defendants represented solely by private court-appointed counsel or
privately-retained counsel whose clients are financially unable to afford the cost of investigative,
mitigation, or other expert assistance, must petition the circuit court for funding of such services
at trial and direct appeal.®° Thus, counsel may, but is not required to, seek appointment of
mitigation specialists—whose presence on a capital defense team “often makes the difference
between life or death for the client”—as well as investigators—who are “essential member[s] of
the core team in capital cases.”®” It is also left to the discretion of individual circuit court judges
to approve funding for such services.

Death row inmates represented during state habeas corpus proceedings by at least one VCRRC
attorney have access to that organization’s single staff investigator, who also provides mitigation
investigation.®* Since 1995, courts have not provided any investigative, mitigation, expert or
other ancillary assistance to death row inmates for use during preparation or presentation of state
habeas corpus claims.*°

b. At least one member of the defense should be qualified by training and
experience to screen individuals for the presence of mental or psychological
disorders or impairments. Investigators and experts should not be chosen
on the basis of cost of services, prior work for the prosecution, or
professional status with the state.

Virginia does not require that counsel or other members of the capital defense team be qualified
by training and experience to screen individuals for the presence of mental or psychological
disorders or impairments.” By statute, however, Virginia provides capital defendants with
access to mental health experts to evaluate the defendant’s history, character, or mental condition
for sentencing and to assess whether the defendant is “mentally retarded.”°! The RCDs “usually
to always” request the appointment of such mental health experts.” It appears, therefore, that

85

VIDC Survey Response, supra note 7, at 9.

Id. at 2, 9. See also VA. CODE ANN. § 19.2-264.3:1(A) (2013) (permitting appointment of a “qualified mental
health expert” to assist the defense if the court finds that “the defendant is financially unable to pay for expert
assistance . . .”) (emphasis added); VA. CODE ANN. § 19.2-264.3:1.2 (2013) (same).

87 Eric Freedman, Introduction, 31 Horstra L. REV. 903, 908 (2003) (discussing Jill Miller, The Defense Team in
Capital Cases, 31 Horstra L. REV. 1117, 1120 (2003)).

VCRRC Interview, supra note 26.

Id.

The Commission reported that “[t]here is no requirement that the attorney must specifically be trained on that
[mental retardation and mental illness].” VIDC Survey Response, supra note 7, at 21

51 Va. CODE ANN. §§ 19.2-264.3:1, -264.3:1.2 (2013). For more information on access to mental health experts,
see Chapter Thirteen on Mental Retardation and Mental Illness.

RCD Central Survey Response, supra note 72, at 11.

90

151

Virginia’s indigent capital defendants typically are screened for mental or psychological
disorders and impairments at the outset by a mental health expert.

Each RCD stated that it seeks to hire staff investigators and mitigation specialists with a
background in psychology or related mental health issues. According to RCD North, one
member of the team is “almost always, but not necessarily” trained to screen for the presence of
mental or psychological disorders or impairments.°’ RCD West and Central report that their
staff mitigation specialists typically handle the task of screening for the presence of mental or
psychological disorders. The Commission’s description of relevant qualifications for a staff
mitigation specialist states that candidates are required to have a bachelor’s degree in social
work, psychology or a related degree in mental health/substance abuse.®° It further states that the
mitigation specialists’ task is to generate “complete social history reports and review[] records to
include but not limited to psychological, medical, and educational [information] related to client
and client’s family.”* Investigators must also meet specific education and experience
requirements, and typically have a psychology background.®”

While Virginia capital defendants may request the circuit court judge to appoint a specific mental
health expert, Virginia law states that the “defendant shall not be entitled to a mental health
expert of the defendant’s own choosing or to funds to employ such an expert.” Appointment of
an expert is left to the court’s discretion.*” Whether investigators and experts in Virginia death
penalty cases are chosen on the basis of cost of services, prior work for the prosecution, or
professional status with the state depends on the jurisdiction. Typically, RCD Central and RCD
West report that their offices are permitted to select the expert of their choice, while, according
to RCD Southeast, “[s]ome judges will accept counsel’s recommendation and other judges will
not”! We were unable to determine on what basis circuit court judges select experts, when the
court appoints experts outside of the defense counsel’s preference. 10! The Assessment Team was
also unable to determine whether all capital defendants represented by privately-retained or
court-appointed private counsel are screened by qualified individuals for the presence of mental
or psychological disorders.

93

ot RCD North Survey Response, supra note 75, at 17.

Regional Capital Defender West Survey Response, provided to Paula Shapiro by Steve Milani, Capital
Defender, RCD West, at 18 (Apr. 2, 2012) (on file with author) [hereinafter RCD West Survey Response]
(‘[mlitigation specialists handle this task in most cases”); RCD Central Survey Response, supra note 72, at 20
(noting that the in-house mitigation specialist is trained to screen for the presence of mental or psychological
disorders or impairments).
° Sentencing Advocates/Mitigation Specialists and Investigators, Sample Position Job Descriptions, as provided
by ne VIDC (Apr. 3, 2012) (on file with author).
a : For more on training of Virginia’s capital counsel, see Protocol #, infra.
% Va. CODE ANN. § 19.2-264.3:1 (2013).
°° RCD Southeast Survey Response, supra note 75, at 12-13; VIDC Survey Response, supra note 7, at 10.
1 RCD Southeast Survey Response, supra note 75, at 12-13 (also noting that “[s]ometimes the judges prefer to
appoint experts who they have experience with . . .”).

But see RCD Southeast Survey Response, supra note 75, at 13 (“Most judges act as if the money for these
experts is taken out of their personal paychecks. The funds [for experts] are normally extremely limited.”).

152

With respect to capital state habeas proceedings, courts do not fund or appoint experts to screen a
death row inmate for the presence of mental or psychological disorders or impairments.”
According to VCRRC, its staff attorneys and investigator/mitigation specialist receive some
training on mental retardation and mental disorders, but generally do not receive formal training
on screening death row inmates for the presence of mental or psychological disorders. 1”
VCRRC seeks pro bono services and consultations from mental health experts in cases in which
it believes mental health issues may be present. '™*

c. A plan for defense counsel to receive the assistance of all bdo
investigative, and other ancillary professional services 1 1)
or appropriate to provide high quality legal representation at every stage of
the proceedings. The plan should specifically ensure provision of such
services to private attorneys whose clients are financially unable to afford
them.

i. Counsel should have the right to seek such services through ex parte
proceedings, thereby pr fidential client information.
ii, Counsel should have the right to protect the confidentiality of
communications with the persons providing such services to the same

extent as would counsel paying such persons from private funds.

The availability of qualified investigative, expert, and ancillary services is critical to the
development and presentation of an effective defense. “Consistent effective capital defense

representation ... involves not only identifying and compensating qualified lawyers, but also
equipping the defense team with such fundamental resources as investigative, forensic and
related services....”!°° Furthermore, the availability of such services during state habeas

proceedings—perhaps the final opportunity to present new evidence challenging a death
sentence— is imperative “to verify or undermine the accuracy of all evidence presented” at trial
and to determine whether the decision-makers at trial were properly informed of and were able to
appropriately weigh all relevant evidence pertaining to each phase of the capital trial. 1°”

Access to Ancillary Professional Services at Trial

In 1996, the Supreme Court of Virginia expanded the right to experts to include non-mental
health assistance if the defendant demonstrates that “the subject which necessitates the assistance

102
103
104
05

VCRRC Survey Response, supra note 26, at 3, 7; VCRRC Interview, supra note 26.
VCRRC Interview, supra note 26.
Id. Attomeys at VCRRC seek to raise up to $1,000 to pay an expert to review mental health records. Id.
See, e.g., ABA STANDARDS FOR CRIMINAL JUSTICE, PROVIDING DEFENSE SERVICES, ABA Standard 5-1.4 cmt.
(3d ed. 1992) [hereinafter ABA STANDARDS] (“Quality legal representation cannot be rendered either by defenders
or by assigned counsel unless lawyers have available other supporting services in addition to secretaries and
investigators. Among these are access to necessary expert witnesses, as well as personnel skilled in social work and
related disciplines to provide assistance at pretrial release hearings and sentencing. The quality of representation at
trial, for example, may be excellent and yet unhelpful to the defendant if the defense requires the assistance of a
psychiatrist or handwriting expert and no such services are authorized or available.”).

Eric M. Freedman, Add Resources and Apply Them Systematically: Governments ’ Responsibilities Under the
Revised ABA Capital Defense Representation Guidelines, 31 HorsTRA L. REV. 1097, 1102 (2003) (intemal citations

omitted).
107 ABA Guidelines, supra note 62, at Guideline 1.1, cmt.

153

of the expert is ‘likely to be a significant factor in his defense.””!® Historically, however,

Virginia capital defendants did not have the right to request funds for expert services through ex
parte proceedings, thereby forcing disclosure of potential defense strategies, providing non-
reciprocal, accelerated discovery to the prosecution, and failing to protect confidential client
information.'” Prior to the Commonwealth's adoption of a statutory framework for requesting
an ex parte hearing in 2010, many capital defense counsel were required to request funds for
most expert and ancillary professional services during adversarial hearings.'!° Often during
these proceedings, the Commonwealth objected to the defense’s request for the provision of
funds or services.!"!

In 2005, Virginia also permitted capital defense counsel to “certify that in good faith he believes
that a scientific investigation may be relevant to the criminal charge,” and receive an ex parte
hearing for this purpose “as soon as practicable.”! Pursuant to this law, if the court is “satisfied
as to the correctness of the certification,” it may order the testing to be performed by the
Department of Forensic Science. !'?

Ex Parte Proceedings

Since 2010, however, capital defendants found to be “financially unable to pay for expert
assistance” may request the appointment of experts for use prior to and at trial through an ex
parte proceeding.'’* Upon notice to the Commonwealth, the defense may request the circuit
court to designate another judge in the same circuit to hear ex parte requests for the appointment
of a qualified expert to assist the defense.'’® The circuit court will only appoint a judge to
consider ex parte requests if the defense demonstrates “a particularized need for confidentiality,”
presented “in an adversarial proceeding before the trial judge.”

108 Husske v. Commonwealth, 476 S.E.2d 920, 925 (Va. 1996) (requiring a detailed showing that is more than an
“undeveloped assertion” that the expert is necessary to the defense).

109 Justin B. Shane, Money Talks: An Indigent Defendant's Right to an Ex Parte Hearing for Expert Funding, 17
Cap. DEF. J. 347, 348 (2005) (“Forcing a defendant to decide whether an expert is necessary at such an early stage in
the proceedings burdens his right to present a defense and places him at a major disadvantage when compared to
monied defendants.”). Telephone Interview with Doug Ramseur, Capital Defender, RCD Southeast (Feb. 24, 2012)
(on file with author); Interview with Ed Ungvarsky, supra note 73.

40 ‘Shane, supra note 109, at 348 (“Virginia is one of the few capital jurisdictions in which statutory or case law
does not permit defendants to apply ex parte for expert funding or in which judges do not routinely allow ex parte
applications”); Ex Parte Hearings Litigation Guide, VA. CAPITAL CASE CLEARINGHOUSE,
http://www.vc3.org/exparte/ (last visited Apr. 20, 2012).

‘1 Interview with Doug Ramseur, supra note 109; Interview with Ed Ungvarsky, supra note 73; Telephone
Interview with David Bruck, Exec. Dir., Va. Capital Case Clearinghouse (Apr. 2012) (on file with author).

12" Va. CODEANN. § 9.1-1104 (2013).

13 Id.

4 Va, CODEANN. § 19.2-264.3:1.3(A) (2013).

15 Td. This statute’s ex parte procedure does not apply to the request for a mental health expert which may be
made directly to the trial court and for which the defendant need not show any particularized showing of necessity in
order for the request to be granted. VA. CODE ANN. §§ 19.2-164.3:1, 164.3:1.2 (2013). Such requests are not made
ex parte.

16" Va. CODE ANN. § 19.2-264.3:1.3(A) (2013). This proceeding will be transcribed as part of the record available
for appellate and habeas corpus review. Id.

154

If the trial court appoints a designated ex parte judge, the capital defendant will have to again
demonstrate a “particularized need for confidentiality” to the ex parte judge. "7 If the ex parte
judge finds that the defense met this burden, it may submit a written motion, filed under seal, to
the designated judge who will hold an ex parte hearing “as soon as practicable.”!® If the judge
finds, by clear and convincing evidence, “that the provision of the requested expert services
would materially assist the defendant in preparing his defense and the lack of such confidential
assistance would result in a fundamentally unfair trial,” the judge will appoint a qualified
expert.!!

It is the practice of some capital defense counsel to request, at the outset, a designated judge that
will hold ex parte hearings on any and all requests for expert funding.'2° According to RCD
Central, that office “has been very successful at winning the right to request the appointment of
experts ex parte.”'?! The overall impact of the 2010 ex parte statute appears to have generally
changed the courts’ presumption concerning ex parte proceedings: for example, the existence of
the law removes the assumption that ex parte proceedings are inappropriate in all cases and thus
can encourage judges to grant ex parte hearings in cases in which the judges may have
previously believed such proceedings to be impermissible. !7

Since 2012, however, there are at least “some judges [who] do not grant the right” to an ex parte
judge.'*> Furthermore, even if an ex parte judge grants a request for expert funding, in some
jurisdictions “funds are normally extremely limited.”’“* It is also worth noting that in order to
make the requisite showing on the need for assignment of an ex parte judge, defense counsel
must explain the need for confidentiality without also revealing the nature of the confidential
information or defense strategy in the case.’ Finally, the provision of mental health experts is
specifically exempt from the application of the ex parte statute; therefore, defense counsel
seeking approval of a mental health expert to examine the defendant must do so in open court
without protection of confidential client information, !”°

UT Va. CODEANN. § 19.2-264.3:1.3(A)-(B) (2013).
a Va. CODE ANN. § 19.2-264.3:1.3(B) (2013).

Id.
Interview with Ed Ungvarsky, supra note 73; Interview with Doug Ramseur, supra note 109. See, e.g., Order,
Commonwealth v. Jephson, Frederick Cnty. Cir. Ct. (June 29, 2007) (on file with author).
21 RCD Central Survey Response, supra note 72, at 10.
12 See, e.g., Muhammad v. Commonwealth, 611 S.E.2d 537 (Va. 2005).
3 RCD Southeast Survey Response, supra note 75, at 13; Email from Meghan Shapiro to Sarah Turberville (Aug.
12, 2012) (on file with author) (describing defense counsel’s obligation to make a “particularized showing” to the
trial court when requesting investigative assistance in a capital case, thereby revealing confidential client
information).
4 RCD Southeast Survey Response, supra note 75, at 13.
5 See Va. CODE ANN. § 19.2-264.3:1.3(A) (2013).
28 See VA. CODE ANN. § 19.2-264.3:1.3(D) (2013) (“This section does not apply to the appointment of a mental
health expert pursuant to § 19.2-264.3:1 or 19.2-264.3:1.2.”).

155

Provision of Reasonably Necessary or Appropriate Ancillary and Expert Services

Indigent capital defendants receiving representation from one of the four Regional Capital
Defender offices have access to that office’s staff investigators and mitigation specialists. LT As
of March 2012, RCD North employs three mitigation specialists who also serve as investigators;
RCD Central typically employs two full-time investigators and one full-time mitigation
specialist; RCD Southeast employs one full-time investigator and two full-time mitigation
specialists; and RCD West has one full-time mitigation specialist and two full-time staff
investigators. 7°

Court-appointed private counsel for indigent capital defendants must request funding for the
assistance of investigative and mitigation services on a case-by-case basis from the circuit
court.!2° All counsel for indigent defendants at trial—whether represented by a RCD or other
appointed counsel—must seek court approval for expert assistance.'? Capital defendants must
demonstrate a need for ancillary and expert services and the decision to grant funding for such
services remains within the circuit court’s discretion.’®’ If the court approves funding for an
investigator, mitigation specialist, or expert, capital counsel must then continue to seek court
approval for additional hours or services performed, which may result in significant use of
court’s and counsel’s time for resolution of funding issues. 132

RCD attorneys also may request from the court funding for additional investigative or mitigation
assistance as needed.’ RCD Central seeks funding for additional investigators “[o]n rare
occasions” and requested funding in 2011 for a mitigation specialist due to the staff specialist
being unavailable; on this occasion, the court “immediately appointed and paid” for an outside
mitigation specialist.'** By contrast, RCD North reports that it is common practice to request
additional mitigation and investigation assistance in almost every capital case assigned to the
office. Capital defendants who have retained private counsel and who are unable to afford

W AIDC Survey Response, supra note 7, at 2, 9-10; RCD West Survey Response, supra note 94, at 6-8; Daniel L.
Payne, Building the Case for Life: A Mitigation Specialist as a Necessity and a Matter of Right, 16 Cap. Der. J. 43,
59-60 (2003) (see Affidavits of John B. Boatwright, III, Leonard R. Piotrowski, and Joseph A. Migliozzi, Jr., lead
attomeys for the Central Virginia, Northem Virginia, and Southeastem Virginia Capital Defender Units).
28 RCD North Survey Response, supra note 75, at 7; RCD Central Survey Response, supra note 72, at 7; RCD
Southeast Survey Response, supra note 75, at 8, 10; RCD West Survey Response, supra note 94, at 6-8.
2 Va. CODEANN. § 19.2-164.3:1.3(A) (2013); Husske v. Commonwealth, 476 S.E.2d 920, 924 (Va. 1996); VIDC
Survey Response, supra note 7, at 2; RCD Southeast Survey Response, supra note 75, at 12; VIDC Survey
Response, supra note 7, at 9-10; RCD Central Survey Response, supra note 72, at 11-12 (“Often the efficiency of
the appointment and compensation is more a reflection of the degree of effort put into the request by counsel.”).

° Va. CopE ANN. § 19.2-264.3:1.3(A) (2013).
151 Va. CODE ANN. § 19.2-264.3:1.3 (2013). When asked whether Virginia requires expert, investigative, or other
ancillary services to be assigned at every stage of the proceedings, the Commission stated “No. Any case assigned
to a capital defender will have an investigator [a sentencing advocate] on staff. Any case assigned solely to court
appointed counsel must petition the court.” VIDC Survey Response, supra note 7, at 2, 10.
‘S2" Email from Meghan Shapiro, supra note 122.
‘83 As of March 2012, attomeys from RCD Southeast request funding for additional investigative services once
every few years, but have not requested additional funding for mitigation assistance. RCD Southeast Survey
Response, supra note 75, at 12. To date, RCD West has not had the need to request additional investigative or
mitigation assistance. RCD West Survey Response, supra note 94, at 9.
‘St "RCD Central Survey Response, supra note 72, at 10.
‘85 RCD North Survey Response, supra note 75, at 9.

156

expert services are also permitted to request the appointment of expert and ancillary defense
services from the circuit court, although it is unclear whether trial courts across Virginia, in
practice, authorize additional funding under these circumstances.'°° The RCDs and other court-
appointed counsel may also need additional funding to support investigative and mitigation
assistance in cases where “there is a language barrier or representation requires international
travel.”'*” In these cases, however, trial courts may be reticent to approve such funding.

Because there is no guarantee of the assistance of investigators, mitigation specialists, and other
experts for capital defense representation in Virginia, it is left to individual attomeys to decide
whether to seek ancillary professional and expert services to assist in representation of a client
who may be sentenced to death. According to RCD Central, “[t]here is an issue with retained
attorneys or attorneys appointed prior to the filing of capital charges not insisting on
investigators or mitigation specialist. [RCD Central] encourages attomeys to move for
appointment of support, however, it is the usual practice not to appoint support personnel until a
capital indictment or warrant is filed.”

A 2009 survey of 1,573 court-appointed attorneys and public defenders, conducted by the Survey
and Evaluation Research Laboratory at Virginia Commonwealth University,
asked attorneys about their success rates in requesting expert and ancillary services in their cases
within the last three years.“° Of the 392 attomeys who responded, 16.9% of respondents had
handled a capital case.'“!_ In the three years considered in the report, attomeys requested a
mitigation specialist in thirty-five cases and were granted a specialist in thirty cases, mostly in
capital cases.” Table 1, below, describes the instances in which the respondents’ requests for
expert and ancillary services were requested, granted, and denied in capital cases. “°

86 Va. Cope ANN. § 19.2-264.3:1(A) (2013) (requiring only “a finding by the court that the defendant is
financially unable to pay for expert assistance”).
BV AIDC Survey Response, supra note 7, at 9; RCD Southeast Survey, supra note 75, at 12.
‘88 Email from Meghan Shapiro, supra note 122.
‘8° RCD Central Survey Response, supra note 72, at 3.
M0 Va, Law Founp. & VA. BAR Ass’N REPORT: RESOURCES AND EXPERTS AVAILABLE TO COURT-APPOINTED
COUNSEL AND PUBLIC DEFENDERS 5-6, 8 (Mar. 2010) (on file with author). Of the 392 attomeys who responded,
86% were court-appointed, 26% were public defenders, and 5% were both. Id.

at 38.

“2 Id at 11.
M3 Id. at 47.

157

Table 1

Number of Cases Each Resource or Expert

d, Granted, and Denied in Capital Cases

Type of Expert Granted Denied
Investigator 50 42 8
Forensic Psychologist 47 37 10
DNA Expert 9 7 2
Fingerprint Expert 3 1 2
Blood Spatter Expert 1 0 1
Forensic Toxicologist 1 0 1
Court Reporter 30 29 1
Physician or Health Care Provider 106 71 29
Social Worker 6 2 4
Forensic Scientist 12 9 3
Mitigation Specialist 35 30 5
Other Expert 4 2 2
TOTAL 304 236 68

Despite the recent successes of RCD-represented capital defendants in obtaining expert,
investigative and mitigation services, there are recent capital cases where requests for
investigative or mitigation assistance were denied at trial. For example:

e Ina 2011 case, the Regional Capital Defender office was dismissed by the capital client,
and when newly-appointed counsel requested an investigator and mitigation specialist to
assist the defense, the circuit court appointed a single individual for both roles and
limited the hours and compensation available for the appointed investigator/mitigation
specialist;

e Ina 2004 case, a private, court-appointed lawyer in a death penalty case was permitted by
the trial court to retain an “investigator for the defense”; however, the defense’s motion
to fund a mitigation specialist and special expert on corrections were denied.'*° The
defendant is currently on death row.'°

e In another case, the trial court rejected defense counsel’s request for an expert “on the
operation and classification of inmates in the Virginia prison system,” informing the
defense that “the services of the expert were ‘expensive’ and that the information
petitioner sought was available from persons who were in Virginia and who could ‘tell
you better how it’s done.’”“” The defendant was executed in 2006."

e Ata 2002 capital trial, a circuit court refused a defendant’s request for appointment of an
investigator, which was subsequently upheld by the Supreme Court of Virginia because

“4 Email from Doug Ramseur to Paula Shapiro (June 12, 2012) (on file with author) (case of Charles Evans, Jr.,
March 2011).

is Juniper v. Commonwealth, 626 S.E.2d 383, 403-04 (Va. 2006). The appellant also asserted that he had
requested appointment of a forensic expert—a request on which the trial court never nuled. Id. at 398. The Supreme
Court of Virginia found that the appellant was procedurally barred from raising this claim on appeal. Id.

146 See VC3 Capital Sentencing Spreadsheet, supra note 9.

47 Lenz v. Warden of Sussex I State Prison, 593 S.E.2d 292, 304 (Va. 2004) (holding that defense counsel’s failure
to raise the necessity of the expert for the “future d: ” question at set did not constitute
ineffective assistance of counsel).

\48 See VC3 Capital Sentencing Spreadsheet, supra note 9.

158


the defendant failed to demonstrate sufficient “particularized need for the services of an
expert.”"? The defendant was executed in 2008.!°

In the 2002 case described above, the Supreme Court of Virginia reaffirmed that “a defendant
does not have an absolute right to the assistance of an investigator, even when charged with
capital murder.”

Finally, whenever counsel is denied appointment of ancillary services, such as an investigator, it
results in counsel having to perform investigative functions at a much greater cost to the
Commonwealth than if an investigator were hired to assist the defense. It may also place the
lawyer in the position of becoming a witness on behalf of the defense, causing the attorney to
withdraw from the case.

Access to Professional Services During Collateral Proceedings and Clemency

Since the Supreme Court of Virginia was granted exclusive jurisdiction over state habeas corpus
proceedings in death penalty cases in 1995, no mitigation specialist, investigator, or expert has
been funded or appointed by the courts to assist in the investigation and presentation of a death
row inmate’s claims.'°” In fact, it appears that no entity in the Commonwealth is responsible for
appointing expert services to assist in the claim development stage of state habeas corpus
proceedings." Virginia circuit courts, which appoint counsel in capital state habeas
proceedings, do not have the statutory authority to hear motions for or to appoint expert services
in these proceedings, and thus cannot appoint mitigation specialists, investigators, or experts for
use at this stage of capital proceedings.'** However, once a habeas petition has been filed with
the Supreme Court of Virginia, the Supreme Court has jurisdiction to appoint or fund
“reasonably necessary” investigators, mitigation specialists, and other ancillary expert services,
in its discretion.'°°

49 Green v. Commonwealth, 580 S.E.2d 834, 840-41 (Va. 2003). The Supreme Court of Virginia also dismissed
the assignment of error for failure to appoint a mitigation specialist or jury expert because, “[a]lthough Green moved
the court to appoint an investigator, he never asked for a mitigation specialist or a jury expert. Thus, he is now
barred from raising any claim on appeal regarding the court’s failure to appoint those two experts.” Id. (citing VA.
Sup. CT. R. 5:25).

150 NaT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE, DEATH Row U.S.A. 32 (Winter 2012), available at
http: eee naacpldf.org/files/publications/DRUSA_Winter_2012.pdf.

151" Green v. Commonwealth, 580 S.E.2d 834, 840 (Va. 2003) (citing Bailey v. Commonwealth, 529 S.E.2d 570,
578 (Va. 2000)).

‘82 VCRRC Survey Response, supra note 26 at 3, 7. See, e.g., Juniper v. Warden of Sussex I State Prison, 707
S.E.2d 290, 311 (Va. 2011) (“Upon consideration thereof, petitioner’s ‘motion for leave to depose the department of
forensic science,’ ‘motion for funds to hire a psychologist or psychiatrist,’ ‘motions for appointment of a DNA
expert and discovery of electronic data,’ ‘motion for discovery,’ and motion for an evidentiary hearing are denied.”);
Elliott v. Warden of Sussex I State Prison, 652 S.E.2d 465, 489 (Va. 2007) (“Upon consideration whereof,
petitioner’s motions for . . . an order releasing physical evidence for examination and authorization to retain a DNA
expert, a crime scene reconstruction expert, a blood spatter expert, and a fingerprint expert; for leave to conduct
depositions of witnesses; for leave to amend his habeas corpus petition with a recently discovered due process claim
and to conduct discovery; and for oral argument are denied.”).

‘53 VCRRC Interview, supra note 26.

15 See VA. CODE ANN. § 19.2-163.7 (2013); VCRRC Interview, supra note 26; Telephone Interview by Paula
Shapiro with Doug Robelen, Chief Deputy Clerk, Sup. Ct. of Va., on May 10, 2012 (on file with author).

‘55 Interview with Doug Robelen, supra note 154.

159

However, death row inmates represented by the VCRRC during state habeas proceedings have
access to that organization’s lone investigator, who also serves as the mitigation specialist for all
of the organization’s capital habeas cases.'° This investigator may also assist VCRRC attorneys
handling state clemency applications.'°’ Notably, during federal habeas corpus proceedings,
federal law provides appointed counsel the assistance of ancillary defense services, which may
be extended through state clemency proceedings. °°

Because Virginia does not guarantee the provision of reasonably necessary or appropriate expert,
investigative, and other ancillary professional services to provide high quality legal
representation at every stage of capital proceedings, Virginia is in partial compliance with this
portion of Protocol #1.'°?

iii, Counsel should have the right to have such services provided by persons
independent of the government.

Whether appointed experts are independent of the government varies across Virginia. RCD
Central, for example, reports that “usually expert[s] are from outside independent sources. 718)
By contrast, RCD Southeast states that capital defendants in its jurisdiction do not have the right
to have expert, investigative, and ancillary services provided by persons independent of the
government, and judges in that jurisdiction sometimes “prefer to appoint experts who they have
experience with.”!°! Counsel providing representation during capital state habeas proceedings
have no right to expert services.

Conclusion

Virginia is in partial compliance with the ABA Guidelines described in Protocol #1. A summary
of the Virginia Assessment Team’s findings and recommendations relative to this Protocol are
found in the final section of this Chapter, entitled “Final Conclusions and Recommendations.”

B. Protocol #2

Qualified Counsel (Guideline 5.1 of the ABA Guidelines on the Appointment and
Performance of Defense C ounsel in Death Penalty Cases):

1. The jurisdiction should develop and publish qualification standards for defense
counsel in capital cases. These standards should be construed and applied in

‘58 VCRRC Survey Response, supra note 26, at 6; VCRRC Interview, supra note 26.

157 VCRRC Interview, supra note 26.

158 See Harbison v. Bell, 556 U.S. 180, 193-94 (2009) (authorizing, but not requiring, federally-appointed counsel
to >) Fepresent death row inmates in state clemency proceedings, pursuant to 18 U.S.C. § 3599).

‘8°. For illustration of the importance of investigative and mitigation assistance at trial and state habeas corpus
proceedings, see the description of the Michael Wayne Williams case in Chapter Eight on State Habeas Corpus
Proceedings. See also Williams v. Netherland, 6 F. Supp. 2d 545, 547 (E.D. Va. 1998) (noting that on direct appeal
and state habeas, Virginia’s courts refused to provide an investigator for the defense team); Frank Green, Miscues
Rule out Execution for Killer, RICHMOND Times-Dispatcu, Apr. 21, 2003, at Al.

‘6° RCD Central Survey Response, supra note 72, at 12. RCD West also said that there is a right to have services
provided by persons independent of the government. RCD West Survey Response, supra note 94, at 10.

RCD Southeast Survey Response, supra note 75, at 13.

160

such a way as to further the overriding goal of providing each client with high
quality legal representation.
2. In formulating qualification standards, the jurisdiction should ensure:

a. That every attorney rep ing a capital defendant has:

i. Obtained a license or permission to practice in the jurisdiction;
ii, | Demonstrated a commitment to providing zealous advocacy and
iii, high quality legal representation in the defense of capital cases;

and
iv. Satisfied the training requirements set forth in Guideline 8.1.'°
b. That the pool of defense attorneys as a whole is such that each capital
defendant within the jurisdiction receives high quality legal
representation.

Accordingly, the qualification standards should ensure that the pool includes
sufficient numbers of attorneys who have demonstrated:

a. ial | ledge and under ding of the rel state, federal and

international law, both procedural and substantive, governing capital

b. Skill “in the and it of lex negotiations and
litigation;

c. Skill in legal research, analysis, and the drafting of litigation documents;

d. Skill in oral advocacy;

9°

Skill in the use of expert witnesses and familiarity with common areas of

forensic investigation, including fingerprints, ballistics, forensic pathology,

and DNA evidence;

f. Skill in the investigation, preparation, and presentation of evidence bearing
upon mental status;

g. Skill in the investigation, preparation, and presentation of mitigating
evidence; and

h. Skill in the elements of trial advocacy, such as jury selection, cross-

examination of witnesses, and opening and closing statements.

According to the ABA Guidelines, “the responsibilities of defense counsel in a death penalty case
are uniquely demanding, both in the knowledge that counsel must possess and in the skills he or
she must master.”! Therefore, it is imperative that the attorneys representing capital clients “be
qualified by t training and experience to undertake such representation and provide high quality
advocacy.”

In 1991, Virginia enacted legislation requiring the Supreme Court of Virginia, the Virginia
Indigent Defense Commission (Commission), and the Virginia State Bar (VSB) to establish
standards for the appointment of counsel in capital cases at trial, on direct appeal, and during

‘© Training requirements are discussed in Protocol #5, infra notes 432-468 and accompanying text.

163 ABA Guidelines, supra note 62, at Guideline 1.1, cmt.; see also ABA Guidelines, supra note 62, at Guideline
5.1, cmt. (“[T]he abilities that death penalty defense counsel must possess in order to provide high quality legal
Tepresentation differ from those required in any other area of law.”)

Miller, supra note 65, at 1124.

161

state habeas corpus proceedings in Virginia. The minimum qualifications standards must

“take into consideration, to the extent practicable, the following criteria: (i) license or permission
to practice law in Virginia; (ii) general background in criminal litigation; (iii) demonstrated
experience in felony practice at trial and appeal; (iv) experience in death penalty litigation; (v)
familiarity with the requisite court system; (vi) current training in death penalty litigation; and
(vii) demonstrated proficiency and commitment to quality representation,” 1° Virginia’s
standards, which were required by statute to take effect July 1, 1992 and apply to all appointed
counsel providing indigent defense representation to capital defendants and death row inmates,
were adopted in 1999,'°”

Virginia’s qualification standards for capital defense counsel to become certified to undertake
capital representation at trial, on direct appeal, and during state habeas corpus proceedings are
reproduced and discussed below.

Qualification Standards for Pretrial and Trial Counsel in Death Penalty Cases

All attorneys certified to accept appointments as Lead Counsel in death penalty cases must:

1. Be an active member in good standing of the Virginia State Bar or admitted to
practice pro hac vice;

2. have at least five years of criminal litigation practice (defense or prosecution)
within the past seven years;

3. have experience as defense counsel in at least five jury trials, tried to verdict,
involving violent crimes with maximum penalties of at least 20 years or more;

4. have served as lead counsel in the defense of at least one capital case within the
past five years or served as co-counsel in the defense of at least two capital cases
within the past seven years;

5. have had, within the past two years, at least six hours of specialized training in
capital litigation, plus at least four hours of specialized training required by
section 19.2-163.8(A)(vii) of the Code of Virginia of 1950, as amended.’

In addition to being an active member in good standing of the Virginia State Bar or admitted to
practice pro hac vice, all attorneys seeking appointment as co-counsel in death penalty trials
must:

‘5 Va. Cope § 19.2-163.8(A), (E) (1991), codifying $.B. 852, Ch. 664 (Va. 1991); 6 VA. ADMIN. CopE 30-10-10
(2013); Statutory Authority and Qualifications, VA. INDIGENT DEF. ComM’N,
http://www. publicdefender.state.va.us/serving.htm#C APITALTRIALCOUNSEL (last visited July 29, 2013). In
1991, the Commission was known as the Public Defender Commission. S.B. 852, Ch. 66 (Va. 1991).
165 Va. CODE § 19.2-163.8(A) (1991). In 2001, Virginia included an additional criterion to be idered in the
qualification standards, “current training in the analysis and introduction of forensic evidence, including
deoxyribonucleic acid (DNA) testing and the evidence of a DNA profile comparison to prove or disprove the
identity of any person,” which became the new section vii of the statute. H.B. 2580, Ch. 766, 2001 Sess. (Va. 2001),
codified at VA. CODE § 19.2-163.8(A)(vii) (2001).

Va. CoE § 19.2-163.8(F) (1991); VIDC Survey Response, supra note 7, at 3.
168 Statutory Authority and Qualifications, va. INDIGENT DEF. Comm” "
http://www. publicdefender.state.va.us/serving.htm#C APITALTRIALCOUNSEL (last visited July 29, 2013); V.
Cope ANN. § 19.2-163.8(A)(vii) (2013) (requiring “current training in the analysis and introduction of foreii
evidence, including deoxyribonucleic acid”).

162

1. have at least five years of criminal litigation practice (defense or prosecution)
within the past seven years;

2. have served as lead or primary defense counsel in at least five jury trials, tried to
verdict, involving violent crimes with a maximum penalty of twenty years or
more; [and]

3. have had, within the past two years, at least six hours of specialized training in
capital litigation, plus at least four hours of specialized training required by
section 19.2-163.8(A)(vii) of the Code of Virginia of 1950, as amended.’*”

According to the Commission, as of March 30, 2012, 112 attomeys were certified as lead
counsel and 178 were certified as co-counsel in capital trials.!”’ Certified counsel includes
private attomeys licensed to practice law in Virginia as well as capital defenders employed in
Virginia’s four Regional Capital Defender offices (RCD).!”

Qualification Standards for A ppellate Counsel in Death Penalty Cases

In order to be certified to accept appointments to provide capital representation on direct appeal,
in addition to being an active member in good standing of the Virginia State Bar or admitted to
practice in Virginia pro hac vice, appellate attorneys must meet both of the following
requirements:

1. Have, within the past five years, briefed and argued the merits, after writs have been
granted, in:
a. Atleast three felony cases in an appellate court; or
b. The appeal of a case in which the death penalty was imposed by the trial court
[and];
2. Be thoroughly familiar with the rules and procedures of appellate practice.”

As of March 2012, there were fifty-four attomeys in Virginia certified to provide capital
representation on direct appeal.!”

Qualification Standards for Virginia Habeas Corpus Counsel in Death Penalty Cases

Virginia requires state habeas corpus counsel to satisfy only one of the following requirements:

1. Possess experience as counsel of record in Virginia or federal post-conviction
proceedings involving attacks on the validity of one or more felony convictions, as well
as a working knowledge of state and federal habeas corpus practice through specialized

169 Statutory Authority and Qualifications, va. INDIGENT ComM’N,
http://www. publicdefender.state.va.us/serving.htm#C A PITALTRIALCOUNSEL (last vite July 9, 2013).
170" Telephone Interview by Paula Shapiro with Jae K. Davenport, Standards of Practice Enforcement Att’y, Va.
Indigent Def. Comm’n (Mar. 30, 2012) (on file with author).

Id.

1 Statutory Authority and Qualifications, va. INDIGENT ComM’N

http://www. publicdefender.state.va.us/serving.htm#C A PITALTRIALCOUNSEL (last sited uly 29, 2013).
173" Interview with Jae K. Davenport, supra note 170.

163

training in the representation of persons with death sentences, including the training
required by §19.2.163.8(A)(vii) of the Code of Virginia of 1950, as amended;

2. Have served as counsel in at least one capital habeas corpus proceeding in Virginia
and/or federal courts during the past three years; or

3. Have at least seven years civil trial and appellate litigation experience in the Courts of
Record of the Commonwealth and/or federal courts.”

As of March 26, 2012, forty-two attorneys throughout Virginia were certified as qualified to
provide capital representation to death row inmates during state habeas corpus proceedings.”
Of these, four are employed at the Virginia Capital Representation Resource Center. !”°

Federal Habeas Corpus and Clemency Counsel

Pursuant to federal law, to provide representation in capital federal habeas corpus proceedings,
“at least one of the attorneys appointed must have been admitted to practice in the court of
appeals for not less than five years, and must have had not less than three years experience in the
handling of appeals in felony cases in the court,” and “at least one of the attorneys appointed
must be knowledgeable in the law applicable to capital cases.”!”” The federal presiding judge,
however, “for good cause, may appoint an attorney who may not qualify under 18 U.S.C. §
3599(b) or(c), but who has the background, knowledge, and experience necessary to represent
the defendant properly in a capital case, giving due consideration to the seriousness of the
possible penalty and the unique and complex nature of the litigation. ts

Counsel during federal habeas corpus proceedings are also permitted to continue to represent
death row inmates during state clemency proceedings.'” Virginia does not, however, guarantee
counsel during state clemency proceedings and has not adopted any qualification standards that
apply to counsel in Virginia providing representation during clemency. Attomeys from the
VCRRC usually provide representation to Virginia’s death row inmates during federal habeas
corpus and clemency proceedings.”

4 Statutory Authority and Qualifications, va. INDIGENT DEF. ComM’N,

http://www. publicdefender.state.va.us/serving.htm#C A PITALTRIALCOUNSEL (last visited July 29, 2013).

175" Interview with Jae K. Davenport, supra note 170.

16 VCRRC Interview, supra note 26. The fifth VCRRC attomey does not appear to be certified as of Mar. 30,

2012. Interview with Jae K. Davenport, supra note 170 (on file with author).

17 18 U.S.C. § 3599(c); U.S. Courts, 7 GUIDE TO JUDICIARY POLICY § 620.60.20 (rev. June 3, 2011), available at

http://www.uscourts.gov/FederalC ourts/A ppointmentOfC ounsel/CJ A GuidelinesForms/vol7PartA/vol7PartA Chapter

6. aspx #620 _| 60 (appointment of counsel After judgment) [hereinafter U.S. Courts GUIDE TO JUDICIARY POLIcy].
au S. COURTS GUIDE TO JUDICIARY PoLicy § 620.60.30, supra note 177, (addressing attomey qualification

waivers).
18 “8 U.S.C. § 3599(e); Harbison v. Bell, 556 U.S. 180, 193-94 (2009) (stating that the petitioner’s “case
underscores why it is ‘entirely plausible that Congress did not want condemned men and women to be abandoned by
their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail
cells”) (citing Hain v. Mullin, 436 F.3d 1168 (10th Cir. 2006) (en banc)).

VCRRC Interview, supra note 26; VCRRC Survey Response, supra note 26, at 7.

164

Discussion

Virginia’s qualification standards meet some, but not all, of the requirements set forth by the
ABA Guidelines on Qualified Counsel.’®’ Furthermore, Virginia has not adopted any standards
for counsel providing representation during capital clemency proceedings, nor has the
Commonwealth adopted qualification standards applicable to privately-retained counsel.

Virginia’s Emphasis on Experiential Qualifications

The Virginia standards are similar to the ABA Guidelines “in that they both emphasize that two
attorneys are needed in every capital case, and that those attorneys must meet certain levels of
experience, training, and familiarity with criminal law, felony cases, and jury trials.”
Virginia’s qualification standards, however, focus almost exclusively on an attorney’s experience
in criminal and capital litigation."? While Virginia’s emphasis on experience of attomeys may,
in some instances, serve as a proxy for demonstration of some of the skills required by the ABA
Guidelines, the standards’ exclusive emphasis on experience fails to address whether counsel is
competent to accept appointments. '**

Virginia’s standards do not require that every attorney appointed in a capital case demonstrate a
commitment to providing zealous advocacy or high quality legal representation.’ The ABA
Guidelines acknowledge that “quantitative measures of experience are not a sufficient basis to
determine an attorney’s qualifications for the task” of representing capital clients. 18
Specifically, “[a]n attorney with substantial prior experience in the representation of death
penalty cases, but whose past performance does not represent the level of proficiency or
commitment necessary for the adequate representation of a client in a capital case, should not be
placed on the appointment roster.”

As one capital punishment expert has noted, “[s]tandards for the appointment of counsel, which
are defined in terms of number of years in practice and number of trials, do very little to improve
the quality of representation since many of the worst lawyers are those who have long taken
criminal appointments and would meet the qualifications.”"®® Such qualification standards may

BL Compare ABA Guidelines, supra note 62, with Statutory Authority and Qualifications, VA. INDIGENT DEF.
Comm’N, http://www.publicdefender:state.va.us/serving.htm#C APITALTRIALCOUNSEL (last visited Aug. 7,
2013).

182 Robert H. Robinson, Jr., Improving Process in Virginia Capital Cases, 12 Cap. DEF. J. 363, 369 (2000).

183 See generally Statutory Authority and Qualifications, VA. INDIGENT DEF. CoMM’N,
http: //www.publicdefender.state.va.us/serving.htm#C A PITALTRIALCOUNSEL (last visited Aug. 7, 2013).

‘8 Va. CODE ANN. § 19.2-163.8 (2013); JLARC, supra note 46, at 38. Indeed, the statutory authority for the
qualification standards recommends, as one of the possible criteria the standards should consider is “demonstrated
proficiency and commitment to quality representation.”

85 VIDC Survey Response, supra note 7, at 3. When asked “How does the VIDC ensure the quality of
representation provided by certified attorney eligible for court appointments in death penalty cases?,” RCD Central
Capital Defender stated “[mlostly assumption, but I believe the VIDC expects the individual RCD to monitor
performance.” RCD Central Survey Response, supra note 72, at 7.
io ABA Guidelines, supra note 62, at Guideline 5.1, cmt.

Id.
188 Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst
Lawyer, 103 YALE LJ. 1835, 1871 n.209 (1994).

165

“guarantee no more than experienced incompetence.” ©? A 2002 study published by Virginia’s
Joint Legislative and Review Commission (JLARC) also found that “[t]here is a concern that the
standards promulgated by the Commission and its list of ‘qualified attorneys’ do not adequately
distinguish good attorneys from those who met the standards but do not properly represent their
clients.”!% Attomeys who meet Virginia’s current standards and have obtained certification
from the Commission may include counsel whose past performance indicates a lack of zealous
advocacy and less than high quality legal representation.

Finally, Virginia has not promulgated qualification standards applicable to privately-retained
counsel in death penalty cases, nor do qualification standards exist for counsel in Virginia
clemency proceedings.

Insufficient Training Prerequisites

Virginia’s qualification standards also do not ensure that capital attorneys providing
representation at any stage of capital proceedings have satisfied the training requirements set
forth in ABA Guideline 8.1. According to Virginia’s qualification standards, attorneys seeking to
receive appointments as lead counsel or co-counsel in capital trials must have successfully
completed ten hours of specialized training.'*! However, to initially become certified as capital
appellate or state habeas counsel, there are no training requirements.’ Additionally, the
Virginia qualification standards’ emphasis on familiarity with DNA and forensic science is
important; however, it overlooks the other skills that are equally or even more critical to skillful
and zealous advocacy in death penalty cases, like those described in Protocol #2.'°°

Sufficiency of Pool of Attorneys to Ensure High Quality Representation

It is unclear whether Virginia’s standards ensure that the pool of defense counsel as a whole
includes sufficient numbers of attorneys who have demonstrated each of the qualifications in
Protocol #2.’ While Virginia's current standards do not comport with those set out in Protocol
#2, the counsel certification list may not also reflect the practical availability of certified counsel
to undertake death penalty representation in a particular region, making it difficult to determine
if a sufficient pool of lawyers exists to ensure high quality legal representation throughout the
Commonwealth. The roster, for example, lists the Northem Virginia Capital Defender as

189 Jeremy P. White, Establishing a Capital Defense Unit in Virginia: A Proposal to Increase the Quality of

Representation for Indigent Capital Defendants, 13 Cap. DEF. J. 323, 344 (2001).

180" JLARC, supra note 46, at 37. While the study explored the issue of quality of capital representation, it
determined that the issue “could not be adequately addressed by this review.” Id. at 27.

‘| Capital Trial Counsel: Statutory Authority and Qualifications, Va. INDIGENT DEF. CoMM’N,
http://www. publicdefender.state.va.us/serving.htm#C A PITALTRIALCOUNSEL (last visited Aug. 7, 2013).

'" Interview with Jae K. Davenport, supra note 170; Att'y Certification System (ACeS), VA. INDIGENT DEF.
Comm’N, _ http://www.indigentdefense.virginia.gov/certapp.htm (last visited Aug. 7, 2013) (maintaining
certification).

‘83 White, supra note 189, at 358 (Virginia “must redirect the focus of the qualifications from the experience and
knowledge of the attorney toward the abilities and performance of the attorney.”).

“As previously stated, as of March 2012, there were 112 attomeys certified as lead counsel and 178 certified as
co-counsel in capital trials, fifty-four attomeys certified to provide representation on direct appeal proceedings, and
forty-two certified for capital habeas representation. Email from Jae K. Davenport, Standards of Practice
Enforcement Attomey, Va. Indigent Def. Comm’n to Paula Shapiro (Mar. 30, 2012) (on file with author).

166

available capital trial lead counsel in Southeast, Southwest, and Northem Virginia.’ As Prince
William County in Northern Virginia is the most active death penalty jurisdiction in Virginia,
this does not accurately reflect the Northem Virginia Capital Defender’s availability for
appointment to death penalty cases. Another attorney whose office is located in Big Stone Gap,
Virginia, for example, is listed as qualified capital trial lead counsel in regions as far away as
Fairfax and Norfolk, Virginia.’

The Assessment Team also notes that the availability of counsel with the requisite experience for
certification in death penalty cases pursuant to the ABA Guidelines may be affected by the
attrition rate in the Virginia public defender system as a whole. According to a 2010 Bureau of
Justice Statistics Report (BJS Report) on State Public Defender Programs, out of the nineteen
states with state public defender programs, Virginia has the highest attrition rate (24%) and one
of the lowest averages for assistant public defender’s length of service, which is approximately
three years.'°” Because the appointment of two capital qualified counsel is only required when a
defendant is charged with capital murder, and because Virginia prosecutors are not required to
file a notice of intent to seek the death penalty and often initially charge capital cases as a lesser
offense, non-capital public defenders or private counsel certified by the Commission to provide
felony representation may initially represent a defendant facing the death penalty.'°° These
defenders, however, typically do not possess the requisite qualifications for representation of a
capital client.

On a related note, the existing standards do not ensure verification of applicants’ assertions
regarding their experience, nor do the standards promote sufficient monitoring of certified
counsel in order to assess counsel’s commitment to zealous advocacy and high quality legal
representation. This issue is discussed in greater detail under Protocol #3, below.

Conclusion

Based on the foregoing, the Commonwealth of Virginia is in partial compliance with Protocol
#2. A summary of the Virginia Assessment Team’s findings and recommendations relative to
this Protocol are found in the final section of this Chapter, entitled “Final Conclusions and
Recommendations.”

185 See, e.g., Counsel Lookup, VA. INDIGENT DEFENSE CoMM’N, http tive.org/ACeS/defend/
(last visited Aug. 7, 2013) (indicating that Edward Ungvarsky is ea Tead counsel in District 4 (Norfolk),
District 19 (Fairfax), and District 30 (Southwest Virginia)).

196 See id. (indicating that Gregory Kallen is qualified lead counsel in District 4 (Norfolk), District 19 (Fairfax),
and District 30 (Southwest Virginia)).

U.S. BUREAU OF JUSTICE STATISTICS, CENSUS OF PUBLIC DEFENDER OFFICES, 2007, SPECIAL REPORT: STATE
PUBLIC DEFENDER PROGRAMS, 2007 18 (Sept. 2010), available at http://www.bjs.gov/content/pub/pdf/spdp07.pdf
[hereinafter BJS REPORT].

188 See generally Interview with Ed Ungvarsky, supra note 73.

167

C. Protocol #3

The selection and evaluation process should include:

1A id it d ing authority, not comprised of judges or
elected officials, consistent with the types of statewide appointing authority
proposed by the ABA (see, American Bar Association Policy Recommendations
on Death Penalty Habeas Corpus, paragraphs 2 and 3, and Appendix B thereto,
proposed section 2254(h)(1), (2)(1), reprinted in 40 Am. U. L. Rev. 1, 9, 12, 254
(1990), or ABA Guideline 3.1, Designation of a Responsible Agency), such as:
a. A defender organization that is either:

i. A jurisdiction-wide capital trial office, relying on staff attorneys,
members of the private bar, or both to provide representation in death
penalty Cases; or

ii, A jur i ide capital and/or post-conviction defender
office, relying on staff attorneys, members of the private bar, or both to
provide representation in death penalty cases; or

b. An “Independent Authority,” that is, an entity run by defense attorneys with
demonstrated knowledge and expertise in capital representation.

The ABA Guidelines require a statewide agency “independent of the judiciary” to be responsible
for the provision of high quality legal representation for a state’s capital defendants and death
row inmates. !°

In 2004, the Virginia General Assembly established the Virginia Indigent Defense Commission
(Commission) as the supervisory state agency responsible for the oversight and certification of
all court-appointed attorneys providing indigent capital and non-capital defense services,
including the public and capital defender offices located throughout Virginia.” Circuit court
judges, however, hold the sole responsibility and authority to appoint and select capital counsel
at trial, on direct appeal, and during state habeas corpus proceedings."”’ Judges may appoint
attorneys certified by the Commission, but may also "appoint counsel who is not included on the
list, but who otherwise qualifies under the standards established and maintained by” the
Commission.?”

The Commission is comprised of fourteen members, including the Chairmen of the House and
Senate Committees for Courts of Justice, the chairman of the Virginia State Crime Commission,
the Executive Secretary of the Supreme Court of Virginia, or their designees.” Other
appointments are made by the Governor, the Virginia State Bar, the Speaker of the House of
Delegates, and the state Senate Committee on Rules.“ The Commission, like its predecessor
the Public Defender Commission, develops initial training courses, qualification standards, and
standards of practice for court-appointed counsel and public defenders, as well as maintains a list

199 ABA Guidelines, supra note 62, at Guideline 3.1.

200 Va. CODE ANN. § 19.2-163.01 (2013); VA. INDIGENT DEF. COMM’N, 2011 ANNUAL REPoRT 7 (Sept. 26, 2011),
available at http://leg2.state. va.us/dls/h&sdocs.nsf/By+Y ear/RD2112011/$file/RD211.pdf.

201 Va. CODEANN. § 19.2-163.7 (2013).

22 Va. CODE ANN. § 19.2-163.8(C) (2013).

203 Va. CODE ANN. § 19.2-163.02 (2013).
204 Id.

168

of attorneys certified as qualified to accept court appointments in capital and non-capital cases,
among other duties.“ The Commission is also responsible for hiring Virginia’s four Capital
Defenders, each of whom serve as chief administrator of one of the four Regional Capital
Defender offices (RCD), and who, in turn, are responsible for appointing and hiring assistant
capital defenders and other RCD personnel.”

While the Commission—as the authority responsible for the selection and evaluation of attorneys
to represent indigent capital defendants—may be comprised of some judges and elected officials,
its composition must include at least three attorneys “in private practice with a demonstrated
interest in indigent defense issues.”?"” Virginia, therefore, is in partial compliance with this
portion of Protocol #3.

2. Devel and i by the ide i d appointing
authority, of a roster of eligible lawyers for each phase of ie
3. The statewide independent appointing authority should perform the following
duties:
a. Recruit and certify attorneys as qualified to be appointed to represent
defendants in death penalty cases;

The ABA Guidelines require the independent appointing authority to “assess the qualifications of
attorneys who wish to represent capital defendants, conducting a meaningful review of each
request for inclusion on the roster of qualified counsel. 208 The Commission certifies attorneys
as qualified to accept appointment to represent capital defendants and death row inmates at trial,
on direct appeal, and during state habeas corpus proceedings, based on the qualification
standards drafted by the Commission, Supreme Court of Virginia, and the Virginia State Bar.”
The Commission does not, however, recruit attorneys to accept appointments to capital cases. ay

To become certified, the Commission requires interested attomeys to complete an application
form, available on the Commission’s website.”!!_ The form requires applicants to “certify that
they have met the requirements that are set forth in the application and must list the training
received.””!? Applicants must also describe his/her education and litigation experience,

including experience providing capital representation at every stage of a capital proceeding.”

75 Va. CopDE ANN. § 19.2-163.01 (2013); Home, VA. INDIGENT Der. COMM’N,
http://www. publicdefender.state.va.us/index.htm (last visited Aug. 7, 2013) (established to carry out “the
Commonwealth’s constitutional obligation to provide attomeys for indigent persons accused of crimes that carry a
potential penalty of incarceration or death”).

® Va. Cope ANN. § 19.2-163.01(A)(8)-(9) (2013)
207 Va. CODEANN. § 19.2-163.02 (2013).
208 ABA Guidelines, supra note 62, at Guideline 3.1, cmt.
209 Va. Cope ANN. § 19.2-163.8(A), (B), (E) (2013) (charging those entities with developing “standards for
attomeys admitted to practice law in Virginia who are qualified to represent defendants charged with capital murder
or sentenced to death”).
210 VIDC Survey Response, supra note 7, at 5.
21 Attorney Certification System (ACeS), VA. INDIGENT DEF. ComM’N,
http://www. publicdefender.state.va.us/certapp.htm (last visited Aug. 7, 2013).
212" VIDC Survey Response, supra note 7, at 4.
213 Attorney Certification System (ACeS), INDIGENT DEF. ComM’N,
http://www indi gentdefense. virginia.gov/certapp.htm (last visited Aug" 1, 2013).

169

The application will be reviewed by the Commission’s two “Standards of Practice Enforcement”
attorneys, who ensure each attorney seeking inclusion on the certification list is a lawyer in good
standing with the Virginia Bar who has completed the Standards’ training requirements. 7!*
Regarding the other qualification standards, applicants who assert that s/he possesses the
requisite qualifications will be certified.”!° The Commission does not independently verify the
claims of the attorneys seeking court appointments; instead, it “simply compiles the list and
distributes it to interested judges.”!°

Virginia has acknowledged that the lack of credential verification affects the quality of counsel
afforded to capital defendants and death row inmates. A 1999 report by the Virginia State Crime
Commission, in conjunction with the Office of the Executive Secretary of the Supreme Court,
the Virginia State Bar, the Virginia Bar Association, and the Indigent Defense Commission,
recommended, after an evaluation of the Commonwealth’s system of representation for indigent
capital defendants and death row inmates, that Virginia “revise the standards for qualification as
court appointed counsel with the purpose of enhancing the caliber of attorneys available for
appointment in capital cases. ants Similarly, a 2003 report on Virginia’s system of capital
punishment found that Virginia employs “inadequate standards for appointment” of capital
defense counsel, “little or no verification of lawyers’ credentials,” as well as instances of
“attorneys filing documents late or in the wrong court.””!° Since issuance of this 2003 Report,
the Commonwealth has established four RCDs; however, there have been no amendments to the
appointment standards or adoption of credential verification procedures in death penalty cases.

No entity is vested with the authority to oversee and certify the qualifications of privately-
retained counsel or to require privately-retained counsel to obtain certification.

Thus, it appears Virginia is only in partial compliance with this portion of Protocol #3.

b. Draft and periodically publish rosters of certified attorneys;
c. Draft and periodically publish certification standards and procedures by
which attorneys are certified and assigned to particular cases;

By statute, the Commission maintains “a list of attorneys admitted to practice law in Virginia
who are qualified to represent defendants charged with capital murder or sentenced to death. pas
This roster lists attorneys certified by the Commission to accept appointments to capital cases,
including attorneys employed at the RCDs, VCRRC, Virginia public defenders, and private local

214 -VIDC Survey Response, supra note 7, at 4.
215 Interview with Jae K. Davenport, supra note 170. RCD North reported that a former assistant capital defender
employed by that office wrote a note to the Commission asking to be certified as appellate counsel, despite the
attorney’s failure to meet the appellate experiential req and the C ission certified the attorney.
Interview with Ed Ungvarsky, supra note 73.

© UNEQUAL, UNFAIR AND IRREVERSIBLE, supra note 47, at 13.
217 Va. STATE CRIME COMM’N, EXEC. SUMMARY REPORT: CAPITAL REBRESENTATION OF INDIGENT DEFENDANTS,
H. Doc. No. 60 (1999), available at http://leg2.state.va.us/dls/h&sdocs.n yreport/HD 601999.
218 ACLU oF VA., ET AL., BROKEN JUSTICE: THE DEATH PENALTY IN VIRGINIA 31 (Nov. 2003), available at
http: /Iwww.aclu. orgjfiles/FilesPD Fs/broken | justice.pdf [hereinafter B ROKEN JUSTICE].

219° Va. CODE ANN. § 19.2-163.8(B) (2013). Virginia’s qualification standards for representation in capital cases,
and its compliance with the standards set out by the ABA Guidelines, are discussed at length in Protocol #2, supra
notes 166-198.

170

attorneys,’”” The Commonwealth’s qualification standards, together with certification
procedures and instructions, are published and available on the Commission’s website. 22 |The
names of all attorneys certified as meeting the qualification standards at each stage of capital
proceedings also are published on the Commission’s website, searchable by county and stage of
the proceeding.”

Aside from the statute requiring that the court appoint counsel from the list of certified attorneys
maintained by the Commission, no entity has promulgated written or published procedures by
which attorneys are assigned to particular cases.” The assignment of counsel, or appointment
process, is discussed below.

d. Assign the attorneys who will represent the defendant at each stage of every
case, except to the extent that the defendant has private attorneys;

The ABA Guidelines specify that the responsible agency should possess the sole authority to
appoint counsel in death penalty cases, “not the judiciary or elected officials.”?*

Appointment of Counsel during Pretrial Proceedings and at Trial

Counsel must be appointed when an indigent defendant is charged with a capital offense.””° The
Virginia judiciary is responsible for assigning two attorneys to represent any indigent defendant
charged or convicted of a capital offense at trial, on direct appeal, and during state habeas corpus
proceedings, ””° Capital indigent defendants will be appointed “at least” two attorneys from the
list of certified counsel maintained by the Commission for representation at trial, and, if
convicted and sentenced to death, on direct appeal and for any certiorari petitions.”’ Virginia
statute states that at least one of the two attomeys appointed on or after July 1, 2004 must be
from a Regional Capital Defender office.”

220 Va. CODEANN. § 19.2-163.8 (2013).

221 See Statutory Authority and Qualifications, VA. INDIGENT DEF. ComM’N,
http://www. publicdefender.state.va.us/serving.htm#CAPITALTRIALCOUNSEL (last visited Aug. 7, 2013);
Attorney Certification System (ACeS), VA. INDIGENT DEF. CommM’N,
http://www. indigentdefense.virginia.gov/certapp.htm (last visited Aug. 7, 2013).

222" Certified Counsel List: Counsel Lookup, VA. INDIGENT DEF. ComM’N,

https://epm. virginiainteractive.org/ACeS/defend/ (last visited Aug. 7, 2013).

223° Va. CODE ANN. § 19.2-163.7 (2013).

24 Id.; Ronald J. Tabak, Why an Independent Appointing Authority Is Necessary to Choose Counsel for Indigent
People in Capital Punishment Cases, 31 HorstrA L. REV. 1105, 1105 (2003) (noting that “lawyers whom judges
have appointed in capital punishment cases have frequently been of far lower quality that could have been
selected.”).

5 The timing of the appointment process in Virginia capital cases is discussed in Protocol #1, supra.

6 VIDC Survey Response, supra note 7, at 2; see also Protocol #1, supra notes 65-161 and accompanying text, on
the timing of capital appointments.

27 Va. CODEANN. § 19.2-163.7 (2013).

8 Td. (“In all cases where counsel is appointed under this section after July 1, 2004, one of the attorneys appointed
shall be from a capital defense unit maintained by the Indigent Defense Commission.”).

171

Typically, RCDs serve as lead counsel in appointed cases.”° Co-counsel may be an attorney
employed in one of the RCDs or the appointed RCD may request the circuit court to appoint a
specific private, certified attorney as co-counsel.”“” Depending on the jurisdiction, the circuit
court judge may accept the RCD’s recommendation for co-counsel while judges in other
jurisdictions may appoint an attorney of the court’s choosing, notwithstanding the RCD’s
recommendation.”*! RCDs may also contact the local capital defense community to see who is
available to provide representation at the time and request their presence in the courtroom during
arraignment to better ensure appointment of that attorney to the case.

Notably, Virginia’s capital statute permits circuit court judges to, “[nJotwithstanding the
requirements of [section] 19.2-163.7, .. . appoint counsel who is not included on the list, but who
otherwise qualifies under the standards established and maintained by” the Commission.”* The
statute further prohibits a defendant from pursuing a claim of ineffective assistance of counsel
based on any failure to appoint qualified counsel from the list.”“* This exception empowers
judges to appoint any attorney to provide capital representation at any stage of the proceedings
who meets, in the court’s view and however tenuously, the qualification standards. 35 Indeed,
according to the JLARC report in 2002, “[c]omplaints have . . . been raised about the practice of
some judges who routinely appoint attorneys to defend in capital cases who are not on the list
maintained by the Commission.””°° It appears that, in some instances, Virginia judges have
exercised their discretion to appoint attorneys not included on the list of certified capital defense
counsel.

There have also been instances in which the circuit court appoints two attorneys, neither of
which is from the local RCD.™® This may occur for a number of reasons, including because
counsel was appointed prior to the filing of capital murder charges. Recently, a RCD was not

29 Interview with Ed Ungvarsky, supra note 73; RCD Central Survey Response, supra note 72, at 6 (noting RCD
Central is always appointed lead counsel).

259 RCD Central Survey Response, supra note 72, at 3 (“Sometimes the judges do not agree with our suggestion
and continues with the earlier appointed counsel or appoints some qualified attorney of the court’s choosing.”).

*5!_ RCD Central Survey Response, supra note 72, at 3.

2 Interview with Doug Ramseur, supra note 109.

283 Va. CODE ANN. § 19.2-163.8(C) (2013).

238 Va. CODE ANN. § 19.2-163.8(D) (2013) (“S pliance with the requi of this article shall not form
the basis for a claim of error at trial, on appeal, or in any habeas corpus proceeding.”). See also Kelly Reissman,
“Our System is Broken”: A Study of the Crisis Facing the Death-Eligible Defendant, 23 N. ILL. U. L. Rev. 43, 72
(2002); Reissman, supra, at 71-72 (citing a similar statute in Utah, UTAH R. Crim. P. 8(f) (2002) and Va. CoDE
ANN. § 19.2-163.8(D) (2013)) (“Though the promulgation of these rules and statutes shows a concem for the
performance of counsel, the standards are rendered virtually meaningless by a provision [stating] that
noncompliance with the statute or court rule mandating the standards for counsel cannot be a ground for establishing
ineffective assistance of counsel at trial.”).

289 Va. CODEANN. § 19.2-163.8(D) (2013).

236 TLARC, supra note 46, at 37-38.

257 RCD Southeast Survey Response, supra note 75, at 2.

288 VIDC Survey Response, supra note 7, at 1; RCD West Survey Response, supra note 94, at 1 (“There have been
cases where the Capital Defender was not appointed[, and] my office has contacted the Court in such instances and
requested appointment.”). In addition in one recent case, RCD Central “was asked to co-counsel with another
Regional Capital Defender when conflicts prevented appointment of private local counsel.” RCD Central Survey
Response, supra note 72, at 4.

172

appointed because the judge was unaware of the statute requiring the local RCD to be
appointed.”*’ According to the Central Capital Defender, in 2011,

[eJarlier last year there was a case in Colonial Heights, Virginia wherein this
office was appointed by the lower court for preliminary hearing. Following
indictment the Circuit Court judge appointed two private attorneys. This office
contacted the Circuit Court judge and informed him that, under the statute, this
office had to be appointed. The judge informed me, in open court, he had never
heard of such a statute. Following [him] being given a copy of the code, he
changed his mind and appointed the Office of the Capital Defender.“

Appointment of Counsel on Direct Appeal

If a capital defendant is sentenced to death in Virginia, the circuit court judge who presided over
the trial will appoint “at least” two capital-qualified counsel, including the RCD, to provide
representation on direct appeal to the Supreme Court of Virginia.””’

In practice, circuit court judges appoint trial counsel to provide representation on direct
appeal.” This practice, however, does not ensure that a death-sentenced defendant receives
high quality legal representation on direct appeal—which is the last stage of a capital proceeding
in which a defendant is constitutionally entitled to counsel. For example, appointment of new
counsel for representation on appeal permits such counsel to “perceive issues from the transcript
which trial counsel may miss, due to closeness and familiarity with the case.” “8 Ona practical
note, “the brief-writing skills required of appellate counsel may not always be possessed by trial
attorneys.””“* Furthermore, requiring trial counsel with numerous trial preparation commitments
in death penalty cases to also provide representation on direct appeal may impose an
unreasonable burden on the attorney’s time.” Notably, Virginia is one a few states without an
appellate defender to handle appeals in death penalty cases; by contrast, Virginia's Office of the
Attorney General, not individual Commonwealth’s Attorneys, defends the state on any appeals in

death penalty cases.”4°

Appointment of Counsel during State Habeas Corpus and Clemency Proceedings

Virginia requires the circuit court to appoint state habeas counsel from the certification list
maintained by the Commission within thirty days of affirming a sentence of death on appeal.”“”

ou RCD Central Survey Response, supra note 72, at 2.
Id.
241 Va. CODE ANN. § 19.2-163.7 (2013).
RCD Southeast Survey Response, supra note 75, at 23 (“If we handled the case during the trial, we would
continue representation during the direct appeal.”); RCD West Survey Response, supra note 94, at 19 (Generally,
trial counsel represents defendants on direct appeal.”).
243 ABA, STANDARDS FOR CRIMINAL JUSTICE, Standard 5-6.2 cmt. 83 (3d ed. 1993).
244
Id. at 84.
245 Id.
*46 Responsibilities, ATT’Y GEN. OF VA., http://www.oag.state.va.us/A bout% 20the% 200 ffice/Respnsibilities.html
(last visited Aug. 7, 2013).
247 Va. CODEANN. § 19.2-163.7 (2013).

173

It is unclear whether the appointment of more than one attorney is required under the statute.”“8
Nonetheless, according to VCRRC, “[i]n the past ten years or more, courts have been appointing
more than one lawyer, usually with both being qualified under the [certification] list provided to
the courts.” Per the statute, the Attorney General has “no standing to object to the
appointment of counsel” to represent the death row inmate during habeas corpus proceedings. ad

Virginia does not require the assignment of counsel to death row inmates during clemency
proceedings, although VCRRC attorneys also regularly represent Virginia’s death row inmates at
this stage of capital proceedings.”*!

Finally, we note that Virginia has not adopted any standards, guidelines, or rules governing
capital cases in which a capital defendant has retained private counsel. This permits capital
defendants and death row inmates to hire a single, unqualified attorney without co-counsel to
undertake representation in the extraordinarily demanding circumstances surrounding capital
litigation.

Because Virginia vests circuit courts, rather than an independent appointing authority, with the
responsibility for appointment of counsel during all stages of a capital case, Virginia is not in
compliance with this portion of Protocol #3.

e. Implement mechanisms to ensure that the workload of defense attorneys in
death penalty cases enables counsel to provide each client with high quality
legal representation consistent with the ABA Guidelines;

Virginia has implemented some mechanisms to ensure that the workload of its capital defenders
enables counsel to provide high quality legal representation in death penalty cases, as is
consistent with the ABA Guidelines.” The Commission, however, has not published any
standards governing acceptable caseloads for attorneys undertaking death penalty representation.

Caseload Data

The U.S. Department of Justice’s Bureau of Justice Statistics (BJS) reported that Virginia public
defender agencies had the fifth greatest number of capital-eligible felony cases out of eleven
statewide public defender programs in capital jurisdictions that were examined in its 2010
study.?°3 According to the BJS Report, in 2007, Virginia’s public defender agencies undertook

248 Id. (“If the sentence of death is affirmed on appeal, the court shall, within 30 days after the decision of the
Supreme Court of Virginia, appoint counsel from the same list . . . .”).

249" VCRRC Survey Response, supra note 26, at 2.

20 Va. CODE ANN. § 19.2-163.7 (2013).

*51_ VCRRC Survey Response, supra note 26, at 7.

252 VIDC Survey Response, supra note 7, at7; VA. Tn GaN Der. COAL., PROGRESS REPORT: VIRGINIA’S PUBLIC
DEFENSE SYSTEM 12 (M 2003), available at
http://www.ncids. org/Systems%20E valuation’¢20Project/Resourves/Evaluating/vide%20report%70card%20supple
ment%203.pdf [hereinafter VA. PROGRESS REPORT].

253 BJS REPORT, supra note 197, at 11 (including 2007 caseload data for all of Virginia’s public defender
agencies).

174

representation in sixteen death penalty cases.” In fiscal year 2011, RCD North was assigned to
provide representation in two capital cases, RCD Southeast was assigned to three, RCD Central
to four, and RCD West was assigned to the most cases at six.

At each stage of capital proceedings in Virginia, it is the responsibility of each court-appointed
capital defender to maintain manageable caseloads.”° Capital Defenders “are empowered to
tum down appointments if their caseload exceeds their ability to provide quality
representation.” Across the Commonwealth, none of the four Regional Capital Defenders
surveyed consider current caseloads too high or burdensome.”** According to RCD Southeast,
the office “‘strive[s] to maintain our caseload at a manageable level and would attempt to refuse
appointment if [the Capital Defender] believed that our caseload was unmanageable.”*°? At
RCD Central, while there are four attorneys employed at the office with an average case load
“between four and six active cases at any one time over the past four years,” “two attorneys, the
assistant capital defenders, are primarily responsible for motion and research.””° There are no
mechanisms to ensure that the caseloads of non-RCD attomeys are manageable. Notably, the
two states that have limited caseloads for capital attorneys by statute, Washington and Indiana,
limit capital defense counsel to representation in no more than one open capital case at a time.”°!

The Commission has taken some steps to reduce caseloads. For example, in 2011, after closing
the Appellate Defender in 2009 and in consideration of the National Center for State Court’s
recent Caseload Study, the Commission lifted a three-year hiring freeze and permitted the
Regional Capital Defender offices to hire staff in previously vacant positions.”

f. Conduct, sponsor, or approve specialized training programs for attorneys
representing defendants in death penalty cases;

Virginia statutes grant the Commission sole authority and responsibility to develop initial
training courses for public defenders and attomeys who wish to serve as court-appointed counsel

254 Id. In 2007, Virginia received a total of 95,340 cases, out of which thirty-four were capital felony cases, 36,280
were felony non-capital cases, 48,280 were misdemeanors, 9,420 were juvenile related, and 1,340 were appeals. Id.
at 10. The National Center for State Court (NCSC) 2009 Caseload Statistics ranked Virginia second in most
i criminal caseloads out of states with two-tiered court systems, reporting a total of 14,570 cases
per 100,000 person population in Virginia when the median for two-tiered systems was 6,673 cases per 100,000
persons. NCSC, EXAMINING THE WoRK OF STATE CourTS: AN ANALYSIS OF 2009 STATE CouRT CASELOADS 21
(2009).

55 VIDC 2011 Annual Report, supra note 12, at 14, 21 (“The VIDC counts cases by the number of clients
represented, rather than by the number of charges defended.”). No capital cases were handled by attomeys in public
defender offices, although we were unable to determine how many cases were handled by private, court-appointed
counsel.

= VIDC Survey Response, supra note 7, at 7.

258 RCD North Survey Response, supra note 75, at 6; RCD Central Survey Response, supra note 72, at 7; RCD
West Survey Response, supra note 94, at 6.

259 RCD Southeast Survey Response, supra note 75, at 8; RCD Central Survey Response, supra note 72, at 8.

269 RCD Central Survey Response, supra note 72, at 7.

26! Christopher Dupont & Lary Hammond, Capital Case Crisis in Maricopa County, Arizona: A Response from
the Defense, JUDICATURE (Mar/Apr. 2012), at 217. Indiana permits representation in one open capital case and up
to twenty other felony cases. Id.

262 VIDC 2011 Annual Report, supra note 12, at 18.

175

and “to review and certify legal education courses that satisfy the continuing requirements” for
these attorneys seeking court appointments.”** Although the Commission does not provide any
capital defense training, the Commission fulfills its responsibility by approving specialized
capital defense trainings provided by outside entities that meet Virginia’s training requirements
for certification and recertification.2“* The Commission, however, conducts non-capital defense
representation workshops and trainings that are available to capital and non-capital defenders.”

g. Establish minimum standards for performance of all counsel in death
penalty cases;

The Commission is required by statute to “establish official standards of practice for court-
appointed counsel and public defenders to follow in representing their clients.”7°° While the
Commission promulgated the Standards of Practice for Indigent Defense Counsel in Non-capital
Criminal Cases at the Trial Level (Non-capital Standards), which are applicable to all court-
appointed counsel providing representation in juvenile, misdemeanor and (non-capital) felony
cases,”°’ the Commission has not adopted any standards for performance of court-appointed
defense attorneys in death penalty cases.”°*

h. Monitor the performance of all attorneys providing representation in capital
proceedings;

i. Periodically review the roster of qualified attorneys and withdraw
certification from any attorney who fails to provide high quality legal
representation consistent with the ABA Guidelines;

Monitoring of Performance

The ABA Guidelines contemplate that an effective monitoring system for capital counsel
performance would go “considerably beyond” investigating and maintaining records of
complaints, which is one of the tasks assigned to the independent appointing authority under the
Guidelines. Such a system would require “[t]he performance of each assigned lawyer [to] be
subject to systematic review based upon publicized standards and procedures.”?”” The Virginia
Assessment Team acknowledges the difficulty in creating a workable mechanism that provides
meaningful review. As noted in the commentary to ABA Guideline 7.1, “[a]dmittedly, this is not
an easy task and there obviously are difficulties present in having third parties scrutinize the

°° Va. CODEANN. § 19.2-163.01(A)(2), (5) (2013).
" VIDC Survey Response, supra note 7, at 17.
Training, VA. INDIGENT DEF. CoMM’N, http://www. indi virginia. gov/training.htm (last visited Aug.
7, 2013). For more on the training of Virginia’s capital counsel, see Protocol #5, infra.
28 Va. CODEANN. § 19.2-163.01(A)(4) (2013).
267 “COMMONWEALTH OF VA., STANDARDS OF PRACTICE FOR INDIGENT DEFENSE COUNSEL 2 (June 2006), available
at http://www.indigentdefense. virginia.gov/PD F%20documents/Standards% 200f%20Practice%20120315.pdf. The
Commission adopted the Standards of Practice with an effective date of April 1, 2007, after receiving feedback from
local bar associations, General Assembly members, and the Virginia Crime Commission. Id.
268 VIDC Survey Response, supra note 7 at 5-6. All four Capital Defenders and the Executive Director of the
VCRRC have stated that they are aware of and strive to meet the performance standards in the ABA Guidelines.
RCD Southeast Survey Response, supra note 75, at 7; RCD North Survey Response, supra note 75, at 5 (“My office
treats the ABA Guidelines as minimum standards of practice .. . .”).
209 ABA Guidelines, supra note 62, at Guideline 7.1, cmt. See also section 3.vii, infra.

Id.

176

judgments of private counsel. On the other hand, the difficulty of the task should not be an
excuse for doing nothing. pail

Virginia’s Capital Defenders may internally monitor the performance of their assistant capital
defenders on staff. For example, RCD Southeast conducts yearly performance reviews and
conducts informal reviews during other periods of the year.”” RCD Southeast also notes that
although the office has not adopted the ABA Guidelines, the office “strive| ve[s] to meet the ABA
Guidelines as well as [its] own personal and professional standard of care.”*’” The Commission
also undertakes some evaluation of attorneys employed by the RCDs through its “periodic
employment evaluations.”?” However, no RCD possesses_ written policies governing the
monitoring of the performance of its capital defense attomeys.?”

Virginia has not, however, implemented a mechanism to monitor the performance of all
attorneys certified by the Commission to undertake capital representation. A 1999 Virginia
Crime Commission Report concluded that “[t]he Public Defender Commission does not
currently evaluate attorneys on the basis of whether they have demonstrated ‘proficiency and
commitment to quality representation’ as required by the standards,” and must do so in order to
ensure “that all attorneys who are available for appointment to capital cases are competent to
represent capital defendants.”””° Since issuance of this report, the Commission has not
promulgated any performance standards and states that it does not possess the authority to ensure
the quality of representation provided by certified attorneys.””

While well-qualified and high-performing private attorneys are undoubtedly appointed to
represent many capital defendants, there is no assurance that such attorneys will be appointed.
According to RCD West, for example, “there have been a few times where co-counsel,”
appointed by the court to represent a capital defendant along with the RCD, “was either not
involved or appeared to be operating at cross purposes.”””*> When asked whether there have been
cases in which the RCD “was appointed to a case with unqualified, negligent, or ineffective co-
counsel,” RCD Southeast responded that “[i]t happens far too often. Since we don’t control the

27 Tq. (citing ABA, STANDARDS FOR CRIMINAL JUSTICE, Standard 5-2.3 cmt. (3d ed. 1993)).
2 RCD Southeast Survey Response, supra note 75, at 7 (also noting that the RCD Southeast is “a small office and
I have regular and constant contact with all the members of the office. We work in a team environment and I
monitor the performance of all team members.”).

Id.

24 RCD Central Survey Response, supra note 72, at 6.

25 Commentary to the ABA Guidelines notes that counsel has a duty to monitor and direct the work of the capital
defense team, which includes an investigator, mitigation specialist, and any other experts that may be required. ABA
Guidelines, supra note 62, at Guideline 4.1, cmt.

278 Td. (noting that this does not mean that “local bar associations [are required] to act as peer review groups for
court appointed attomeys”). See VA. STATE CRIME COMM’N, CAPITAL REPRESENTATION OF INDIGENT DEFENDANTS:
A REPORT TO THE GOVERNOR AND THE GENERAL ASSEMBLY OF VIRGINIA (1999), available at
http://leg2.state. va.us/dls/h&sdocs.nsf/fc86c2b1 7al cf38885257 0f9006F1 299/9397 76fb00eb48198525676000606490
($FILE/HD60_ 1999.pdf.

VIDC Survey Response, supra note 7, at 6. A 2003 evaluation of Virginia’s indigent defense representation
system found that the system has “no way to evaluate performance, or to remove poor quality lawyers from the list
of qualified attomeys, so long as they meet the objective, experiential and training criteria.” VA. PROGRESS REPORT,
supra note 252, at 7.

278 RCD West Survey Response, supra note 94, at 2.

177

appointment process, we are regularly burdened with attorneys who do not live up to the
standards set by the ABA Guidelines. It is one of the biggest problems that this office faces.”””°

Withdrawal of Certification

The Commission is required by statute to establish “guidelines for the removal of an attorney
from the official list of those qualified to receive court appointments and to notify the Office of
the Executive Secretary of the Supreme Court of any attorney whose name has been removed
from the list.”“°° However, the Commission does not periodically remove from the list or
withdraw certification for attorneys who fail to provide high quality legal representation
consistent with the ABA Guidelines.”! Instead, once an attomney is on the list, the Commission
only “monitors the Virginia State Bar’s disciplinary actions for compliance with requirements of
being a member of the bar in good standing,” and removes attorneys from the list who fail to
maintain good standing or who fail to complete the requisite ten hours of training every two
years.”®

Notably, with respect to staff attorneys employed at each of the RCDs, Commission policy
requires assistant capital defenders to bring any complaint filed against him/her “to the attention
of the capital defender,” who may, in the capital defender’s discretion, report the complaint to
the Commission.” Investigation of the complaint may lead to termination of the offending
RCD attorney.”**

By contrast, as the Commission has developed standards of practice in non-capital cases, it has
also adopted guidelines for the removal of an attorney who violates the standards of practice as
well as procedures through which to enforce the guidelines and remove those attomeys who fail
to meet those standards.“° Furthermore, because Virginia law permits circuit court judges to
appoint uncertified attorneys “who otherwise qualif[y] under the standards established and
maintained by the [Supreme Court of Virginia] and the Commission,” removal from the
certification list does not guarantee that the attorney will not be appointed to a capital case.7%°

In addition, because Virginia does not require certification of all attorneys providing
representation in death penalty cases, including privately-retained counsel, the Commonwealth
cannot ensure the quality of capital defense representation afforded to all Virginia capital
defendants and death row inmates.

RCD Southeast Survey Response, supra note 75, at 3.

280 Va. CODEANN. § 19.2-163.01(A)(4) (2013).

VIDC Survey Response, supra note 7, at 5.

8 Td. at 6.

VIDC Policy 3.10 (on file with author); VIDC Survey Response, supra note 7 , at 7.

“ VIDC Policy 3.10 (on file with author); VIDC Survey Response, supra note 7 , at 7.

265 VIDC 2011 Annual Report, supra note 12, at 10; VA. CoDE ANN. § 19.2- 163. ‘O1A(4) (2013); supra note 267
ing text. The C: formed a working committee of representatives from the Virginia Bar

Association, the Virginia State Bar (Criminal Law section and Ethics Counsel), the Virginia Association of Criminal

Defense Lawyers, the Virginia Trial Lawyers Association, the Office of the Attomey General, the Commonwealth

Attomeys Services Council, the Supreme Court of Virginia, private bar members, and public defenders to develop

the guidelines for removing an attomey from the certified list. VIDC 2011 Annual Report, supra note 12, at 10.

28° "Va. CODE ANN. § 19.2-163.8(C) (2013).

178

The importance of certification can be illustrated by a number of cases in which those sentenced
to death were later exonerated, or had their convictions were reversed, due to the ineffective
assistance of counsel received at trial. While these cases pre-date creation of the RCDs, the
existing lack of meaningful oversight of the performance of capital defense counsel could result
in capital defendants receiving representation by such ill-equipped or unqualified attorneys in
future death penalty cases.
e Earl Washington, Jr., was exonerated in 2000 for a rape and murder he did not commit. a
At trial, Washington’s defense counsel “did not appreciate the significance” of DNA
testing results disclosed to defense counsel prior to trial—results which excluded
Washington as the possible contributor of the DNA material.”*

e A 2001 capital murder conviction in which the defendant was sentenced to life without
parole was overturned in early 2012 by the U.S. District Court for the Western District of
Virginia due to ineffective assistance of counsel, which was described by the district
court as a “miscarriage of justice.””®* Pursuant to Virginia law, the defendant, Michael
Hash, was appointed two capital-qualified attorneys and given “the higher budget that
comes with a capital case. And still, these two lawyers failed to conduct an ‘independent
investigation’ or simply retrieve what was in a court file.” Due to his attorneys’ failure
to conduct any investigation into his case, Michael Hash spent twelve years in prison
before exoneration. Notably, since Virginia death row inmates “spend the shortest time
on death row prior to execution—on average, just 7.1 years—compared to a national
average of just over 14 years for those executed in 2009,” had Hash been sentenced to
death, he likely would have been executed before being exonerated.”

e The 2001 death sentence of William Morrisette was reversed and remanded by the
Supreme Court of Virginia due to ineffective assistance of counsel.” Four months prior
to the scheduled re-sentencing, the Commonwealth’s Attorney and defendant reached a
plea agreement permitting Morrisette to accept a sentence of life without parole.”
According to Morrisette’s defense counsel at re-sentencing, the new sentencing hearing

87 Know the Cases: Earl Washington, INNOCENCE PROJECT,
http://www. innocenceproject.org/C ontent/Earl_Washington.php (last visited Aug. 7, 2013).

268" Locke E. Bowman, Lemons out of Lemonade: Can Wrongful Convictions Lead to Criminal Justice Reform?, 98
J. Crim. L. & CRIMINOLOGY 1501, 1513 (2008) (“...Washington’s trial counsel ‘did not appreciate the
significance’ of the semen evidence, which the Commonwealth had tumed over in pre-trial discovery. This is an
understatement. There could be no serious dispute that a single attacker had committed the crime and that,
therefore, the lack of a match had enormous, if not decisive, exonerative effect.”) (intemal citation omitted).

269 Hash v. Johnson, 845 F. Supp. 2d 711, 727 (W.D. Va. 2012).

20 John S. Martin, Virginia's ‘miscarriage of justice,’ RICHMOND Times-DispatcH, Apr. 1, 2012,
http://www2.timesdi h ‘y/2012/apr/01/ '1-virginias-miscarriage-of-justice-ar-
1807707) (last visited Aug. 7, 2013).

Frank Green, Path to execution swifter, more certain in Va., RICHMOND TIMES-DISPATCH, Dec. 4, 2011,
://www2.timesdispatch.com/news/news/2011/dec/04/tdmain01- -path- to-execution-swifter-more-certain-in-ar-
isto (last visited Aug. 7, 2013); STUDIES: Virginia Leads the Country in Death Sentences Resulting in
Executions, DEATH PENALTY INFO. CTR., http://www.deatl tyinfo. ‘ginia-leads-country-death-

sentences: resulting-executions (last visited Aug. 7, 2013).

282 Momisette v. Warden of Sussex I State Prison, 613 S.E.2d 551, 563 (Va. 2005). Morrisette was tried in 2001
for the 1980 murder and rape of Dorothy White. Morrisette, 613 S.E.2d at 553.
aS Peter Dujardin, Death sentence taken off the table in 1980 Hampton slaying, DAILY Press (Va.), Feb. 13, 2011,
http://articles.dailypress.com/2011-02-13/news/dp-nws-deathpenalty-side-0213-20110213_1_hampton-slaying-
william-w-morisette-iii-lonnie-white (last visited Aug. 7, 2013).

179

“was going to last for weeks. [Defense counsel] were going to get experts, witnesses
from his past, from his present,” in contrast to the initial sentencing hearing, which
“lasted less than an hour.”?%4
j. Investigate and maintain records concerning complaints about the
performance of attorneys providing representation in death penalty cases
and take appropriate corrective action without delay.

Investigation and Complaint Process in Death Penalty Cases

The Virginia State Bar (VSB), an agency of the Supreme Court of Virginia, is responsible for
investigating allegations of attomey misconduct and disciplining attorneys licensed to practice
law in the Commonwealth, including attomeys undertaking capital representation.” The VSB
discipline process is applicable to attorneys who have violated the ethical rules governing
attorney conduct or to attorneys who have been convicted of a crime.”%° Poor performance by
defense counsel in a capital case, however, cannot be remedied through bar disciplinary
proceedings, unless such performance rises to the level of ethical misconduct.’ The Virginia
Bar counsels potential claimants that “[i]f you believe that your lawyer represented you poorly,
your remedy may be to file a civil malpractice action, or, in a criminal case, a petition for a writ
of habeas corpus, which addresses claims of ineffective assistance of counsel. These cases must
be filed in a court of law, not with the Virginia State Bar.”** The conduct of attorneys
constituting poor representation of clients facing the death penalty is not, in most cases,
tantamount to violation of a rule of professional conduct or ethics.

There is no other Virginia entity responsible for investigating and maintaining records
concerning complaints about the performance of attorneys providing representation in death
penalty cases and for taking appropriate corrective action without delay. The Commission states
it “has no authority in this area” regarding the quality of representation and performance of
capital counsel, does not keep records of ineffective assistance of counsel claims in death penalty
cases, and does not have a formal complaint process for capital cases.°° Commission policy
does permit, however, Capital Defenders to report to the Commission any complaint—whether
filed with the VSB, as an allegation of ineffective assistance of counsel in a habeas corpus
petition, or any other form of complaint—concerning the performance of an assistant capital

294 Id.
8 See generally Va. Sup. Cr. R. Part 6 § 4, para. 13; Guide to Lawyer Discipline, Va. STATE BAR,
http://www.vsb. i ion/lawyer-discipline (last visited Aug. 7, 2013). See also CANONS OF JuD.

CONDUCT FOR THE STATE OF VA., CANON 3D(2) (requiring judges to take “appropriate action and report to the
Virginia State Bar any information about a likely violation of the Code or knowledge of a Code violation raising
doubt about the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”).

® See Va. Sup. CT. R. Part 6 § 4, para. 13.1 (“Definitions”) (violations of the Rules of Professional Conduct).
287 How to file a Misconduct Inquiry About a Lawyer, VA. STATE BAR, http://www.vsb.org/site/regulation/inquiry
(last visited Aug. 7, 2013). Bar disciplinary proceedings relating to ethical misconduct do not bear upon whether an
attorney’s client has received “ineffective assistance counsel.” See generally Strickland v. Washington, 466 U.S.
668 (1984).
288 How to file a Misconduct Inquiry About a Lawyer, VA. STATE BAR, http://www.vsb.org/site/regulation/inquiry
(last visited Aug. 7, 2013).
2° VIDC Survey Response, supra note 7, at 6. The Virginia Assessment Team was unable to identify any other
entity investigating or maintaining records on ineffective assistance of counsel cases.

180

defender.*” According to the Commission, a “valid complaint regarding the performance of
counsel at any stage of the proceeding may lead to termination of employment of capital
defenders or of removal from the list of qualified attomeys to handle capital cases.”*"1

As of March 2012, the Commission confirms that it has not received or investigated any
complaints regarding RCD representation.*” Furthermore, the Assessment Team is unaware of
any response taken by the Commission, the VSB, or any other Virginia entity, to investigate
complaints about defense attorney performance in death penalty cases.

However, there appear to be instances of cases warranting investigation as to whether counsel
should be able to continue representation of those facing the death penalty in Virginia.
According to a 2001 study, for example, “[rJegarding the disciplinary action taken by the
Virginia State Bar, 26 percent of the defense attomeys in the JLARC study sample who handled
capital murder cases in the last five years have been disciplined by the Virginia State Bar,”
although “[nJone of the disciplinary action was related to the performance of counsel in a capital
murder trial.”*° Of the attorneys currently certified to accept appointments to capital cases, as
of August 2013, it appears eleven of those have been reprimanded or disciplined by the VSB in
some manner.°“ The number of uncertified attomeys appointed to capital cases who have been
disciplined by the VSB is unknown. A 2003 report also noted that attorneys who have
represented Virginia’s death row inmates “are six times more likely to be the subject of bar
disciplinary proceedings than are other lawyers,” and “[i]n one of every ten trials resulting in a
death sentence, the defendant was represented by a lawyer who would later lose his license.”°°
The report found that “[r]ecords provided by the state revealed 11 men convicted of 12 capital
crimes whose trial lawyers would later lose their licenses through suspension, revocation or
surrender with charges pending.” os

3: VIDE Policy 3.10 (on file with author).

3! -VIDC Survey Response, supra note 7, at 7.

32 Id. RCD West noted that “[t]here have been one or two instances where clients have filed bar complaints, these
were dismissed.” RCD West Survey Response, supra note 94, at 11. A single bar complaint filed against an
attomey in RCD Central within the last four years was “monitored by [the Capital Defender] and was summarily
dismissed.” RCD Central Survey Response, supra note 72, at 8.

om JLARC, supra note 46, at 39.

%* ‘See Attorney Records Search, Va. STATE BAR, http://www.vsb.org/attomey/attSearch.asp?S=D (last visited
Aug. 7, 2013). The list of eleven certified capital defense attomeys that have been reprimanded in some manner by
the VSB is on file with the ABA Death Penalty Due Process Review Project.

305 BROKEN JUSTICE, supra note 218, at 35-36 n.140 (“This study requested public disciplinary information for
every lawyer it could confirm had been appointed to represent a prisoner on death row. That amounted to 135
attomeys. Eight of those lawyers had been publicly disciplined. Four had seen their licenses revoked or had
surrendered their licenses with charges pending. Three had been suspended from the bar altogether. None of these
disciplinary actions stemmed from representation in a capital case, and three of the lawyers in this group had
represented more than one capital defendant who was sentenced to death.”).

30° BROKEN JUSTICE, supra note 218, at 36 n.141 and accompanying text. E.L. Motley represented Terry Williams,
a death row inmate whose death sentence was reversed by the U.S. Supreme Court due to ineffective assistance of
counsel, permitting Williams to later plead guilty in exchange for a plea to life without parole. Id. See also
Williams v. Taylor, 529 U.S. 362 (2000). Motley also twice provided representation at trial to death row inmate
Johnny Watkins, who was executed on March 3, 1994. BROKEN JUSTICE, supra note 218, at 36 n.141. Motley’s
status with the VSB is “Disabled Not In Good Standing,” (last updated August 2, 2013). Kevin Shea, who was
disciplined for his conduct in representation of two separate criminal cases in 2005, had also previously represented
death row inmate Syvasky Poyner. In re: Kevin Peter Shea, Nos. 04-010-1311 and 04-010-2610, DiscIPLINARY BD.
OF THE VA. STATE BAR, (Nov. 18, 2005). Poyner was executed on March 18, 1993. Shea’s status with the VSB is

181

Corrective A ction by the Courts

Courts of appeal serve as a safeguard against poor lawyering in death penalty cases.
Historically, Virginia’s rate of reversal of death sentences through the appellate process is much
lower than in other capital jurisdictions.*”” A nine-year study of capital murder cases nationwide
by the Columbia University School of Law in 2000 revealed that from the mid-1970s through
1995, 18% of Virginia death cases were reversed by appellate courts, compared to 68% of death
penalty cases nationally.° A follow up study “also found—as did Virginia’s Joint Legislative
Audit Review Commission—that strict adherence to procedural rules limiting the review of
death cases by appeals courts [in Virginia] may have let stand the convictions of people who did
not get fair trials.”°0°

In some cases, defense counsel’s performance has garnered criticism from federal and state court
judges.*”° In one case, for example, the death sentence of Terry Williams was affirmed on direct
appeal and state habeas corpus proceedings by the Supreme Court of Virginia, but the sentence
was later reversed by the U.S. Supreme Court due to ineffective assistance of counsel.” In that
case, trial counsel had failed to investigate and present substantial mitigating evidence to the
jury.*”? In another case, a federal district court judge in Virginia characterized a brief filed on
behalf of death row inmate Carl Chichester on direct appeal as “a shameful disgrace.”°! In yet

“Active In Good Standing,” (last updated August 2, 2013). As of 2003, the following attorneys were also
disciplined for various reasons: Robert Detrick, who represented Mickey Davidson, executed on October 19, 1995;
Michael Arif represented Bobby Ramdass who executed on October 10, 2000. Arif is currently listed as Certified
Capital Trial lead Counsel in Judicial District 19. See, e.g., Counsel Lookup, VIRGINIA INDIGENT DEFENSE COMM’N,
https://epm. virginiainteractive.org/ACeS/defend/ (last visited Aug. 2 2013). Sa’ad El-Amin had represented
Herman Bames who was executed on November 13, 1995 (license to practice surrendered); Bryant Webb
represented Lonnie Weeks, who was executed on March 16, 2000, and Carl Chichester, who was executed on April
13, 1999 (license to practice surrendered); Ian Rodway represented Richard Whitley, who was executed on July 6,
1987. Rodway’s status with the VSB is “Active In Good Standing,” (last updated August 2, 2013). John Henry
Maclin, who represented Ronnie Hoke, executed on December 16, 1996, and Greg Beaver, executed on December
3, 1996. BROKEN JUSTICE, supra note 213, at 36 n.141; VC3 Capital Sentencing Spreadsheet, supra note 9.
37 See, eg., Welsh S. White, Litigating in the Shadow of Death: Defense Attomeys in Capital Cases (2005),
available at http://www.press.umich.edu/pdf/0472099116-ch2.pdf (“In Virginia . .. it was almost impossible for a
death row inmate to obtain relief on the ground of ineffective assistance of counsel.”); BROKEN JUSTICE, supra note
213, at 31 (“Regardless of the magnitude of the error, case law and court doctrine make it nearly impossible for
capital defendants [in Virginia] to prove that they received ineffective assistance of counsel.”); SPANGENBERG,
supra note 8, at 53 (“In Virginia, unlike many other states, a claim of ineffective assistance of counsel is not
permitted on direct appeal. It may only be raised in state habeas, or post-conviction, proceedings.”).
wo Frank Green, Path to execution swifter, more certain in Va., RICHMOND TIMES-DISPATCH, Dec. 4, 2011.

Id.
310 BROKEN JUSTICE, supra note 218, at 35, 45.
51 Williams v. Taylor, 529 U.S. 362, 397-99 (2000) (noting that “the state Supreme Court mischaracterized at best
the appropriate rule... for determining whether counsel’s assistance was effective within the meaning of the
Constitution .... It follows that the Virginia Supreme Court rendered a decision that was ‘contrary to, or involved
ii ion of, clearly i federal law.’”); Williams v. Commonwealth, 360 S.E.2d 361,

an

371 (Va. 1987).
32 Williams v. Taylor, 529 U.S. 362, 398-99 (2000).

UNEQUAL, UNFAIR AND IRREVERSIBLE, supra note 47, at 20 n.5. According to another report, “Carl Chichester
was executed in 1999 despite conflicting accounts of eyewitnesses, at least one of whom told police that it was
Chichester’s co-defendant, not Chichester, who killed a pizza store manager. Appointed attorneys for Chichester
said they had been unable to locate this eyewitness despite the fact that the local telephone directory contained the
eyewitness’ name, address and telephone number.” Id. at 37.

313

182

another case, a federal court judge decried that the “deficient performance” of a capital
defendant’s attorney “amounted to virtually a complete absence of representation.”°!4 The
attorneys for the latter two cases went on to represent other capital defendants.°!°

In other death penalty cases, appointed counsel either voluntarily represented or were required to
continue representation despite an apparent conflict of interest.*!° For example, one capital
defendant, Walter Mickens, was appointed trial counsel who was the same attomey who had,
only three days earlier, been representing the victim Mickens was accused and later convicted of
murdering.*! Trial counsel had also been “so convinced Mickens would be acquitted,” that he
did not prepare for the penalty phase until after a guilty verdict had been retumed.*"® The same
trial counsel represented Mickens on direct appeal and during state habeas corpus proceedings
until another attorney undertook representation during federal habeas corpus proceedings. *’°
Mickens’ federal habeas counsel only inadvertently learned about the conflict of interest because
the court clerk mistakenly provided counsel with the victim’s juvenile case file, which is
confidential and only produced pursuant to court order, despite the trial counsel’s duty to
disclose the conflict to the court.*”° The federal district court denied an ineffective assistance of
counsel claim, a decision that was affirmed both by the U.S. Court of Appeals for the Fourth
Circuit and the U.S. Supreme Court.*' Walter Mickens was executed on June 12, 2002.7

Similarly, in another Virginia case, death row inmate Dana Edmond’s habeas counsel learned,
upon investigating the background of the inmate’s former girlfriend and prosecution witness,
Laverne Coles, that Edmond’s trial attorney failed to disclose he was currently representing
Coles in an unrelated criminal case during the time of the inmate’s capital trial. 23 During cross-
examination of his own client, Edmond’s attorney failed to elicit information regarding Coles’
diagnosed schizophrenia and delusions and failed to call Coles as a defense witness.°“* The
federal district court declared that it

would like to make it clear that it believes Dana Ray Edmonds did not receive
effective assistance of counsel. The court believed this to be the case when it
granted habeas relief in August of 1992, and it is even more apparent to the court

34 Stout's attorney was Staunton Public Defender William Bobbitt. Stout v. Thompson, Civil Action No. 91-
0719-R (W.D. Va., Roanoke Div., July 31, 1995).

of BROKEN JUSTICE, supra note 213, at 35. Stout’s attorney, Staunton Public Defender William Bobbitt, had been
included on the Public Defender Commission’ list of qualified counsel. UNEQUAL, UNFAIR AND IRREVERSIBLE,
supra note 47, at 18, 22.

318 Va. R. OF PROF’L ConpucT 1.7 (“[A] lawyer shall not represent a client if the representation involves a
concurrent conflict of interest.”).

317 Mickens v. Greene, 74 F. Supp. 2d 586, 599-601 (E.D. Va. 1999).

58 Lawrence J. Fox, Making the Last Chance Meaningful: Predecessor Counsel's Ethical Duty to the Capital
Defendant, 31 Hofstra L. REV. 1181 (2003) (stating that trial counsel “failed Walter Mickens completely in the
penalty phase of the trial”).

19 Id. at 1182.

320 Id.

321 Mickens v. Greene, 74 F. Supp. 2d 586, 599-601 (E.D. Va. 1999).

3 V3 Capital Case Spreadsheet, supra note 9.

3 Edmonds v. Jabe, 874 F. Supp. 730, 733 (W.D. Va. 1995).

Mf Td. at 734.

183

today. There cannot be a more blatant conflict of interest than the one that existed
in the present case.”

Nonetheless, the federal district court denied relief noting that it was “bound by case precedent
and the enigmatic doctrine of procedural default.”*° Edmonds was executed two days after
issuance of this opinion, on January 25, 1995.°2”

Furthermore, the U.S. Supreme Court has repeatedly emphasized that capital defense “counsel
has a duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.”** Despite a number of capital cases
where the defense counsel failed to conduct meaningful, if any, investigation into the defendant’s
background, the Supreme Court of Virginia has rarely identified such conduct as ineffective
assistance of counsel.

For example, in Williams v. Taylor, the U.S. Supreme Court found that the Supreme Court of
Virginia had applied a more stringent standard for determining whether the defendant received
ineffective assistance of counsel than is permitted by the U.S. Constitution and reversed the
inmate’s death sentence.” Consequently, potentially valid claims of ineffective assistance of
counsel by death row inmates, made prior to the Williams decision, were decided under the
wrong standard and thus went uncorrected by the Supreme Court of Virginia.*°

Conclusion

Poor performance by capital defense counsel, unless it constitutes ethical misconduct, cannot be
remedied through the VSB disciplinary process. The Commission also does not investigate and
maintain records concerning complaints about the performance of non-RCD attorneys in death
penalty cases. Thus, Virginia is in partial compliance with Protocol #3.°°' A summary of the
Virginia Assessment Team’s findings and recommendations relative to this Protocol are found in
the final section of this Chapter, entitled “Final Conclusions and Recommendations.”

%5 Id. at 738. Edmond’s death sentence had previously been overtumed by the federal district court for trial
counsel’s failure to request the circuit court judge recuse himself at resentencing; the death sentence was
subsequently reinstated by the Court of Appeals for the Fourth Circuit because Edmonds failed to raise this issue in
his first petition for state or federal habeas corpus relief. Id. at 733, cert. denied 513 U.S. 1137 (1995); Edmonds v.
Jabe, 1995 WL 26690 (4th Cir. 1995); see also Edmonds v. Thompson, 1994 WL 47745, at *1 (4th Cir. Feb. 13,
1994) (unpublished disposition).
® Edmonds, 874 F. Supp. at 738.

27 C3 Capital Case Spreadsheet, supra note 9.
aA oo v. Smith, 539 U.S. 510, 521-22 ‘(2003) (citing Strickland v. Washington, 466 U.S. 668, 690-91
(1984)).
329 Williams v. Taylor, 529 U.S. 362, 397 (2000).
359 Because the Supreme Court of Virginia issued summary dismissals of ineffective assistance of counsel claims
in many state habeas cases leading up to the Williams decision, it is unknown whether and in how many cases the
Supreme Court of Virginia used the same inappropriate standard in death penalty appeals heard before Williams.

The Commission “does not have a formal complaint process for capital cases.” VIDC Survey Response, supra
note 7, at 6.

184

D. Protocol #4

Compensation for Defense Team (Guideline 9.1 of the ABA Guidelines on the
Appointment and Performance of Defense Counsel in Death Penalty Cases):

1. The jurisdiction should ensure funding for the full cost of high quality legal
representation, as defined by ABA Guideline 9.1, by the defense team and
outside experts selected by counsel.*”

According to the ABA Guidelines, “[i]t is critically important . . . that each jurisdiction authorize
sufficient funds to enable counsel in capital cases to conduct a thorough investigation for trial,
sentencing, appeal, post-conviction and clemency, and to procure and effectively present the
necessary expert witnesses and documentary evidence.”

Virginia’s indigent capital defense system is funded through a number of sources, including
appropriations from the Virginia General Assembly to the Virginia State Bar, the Virginia
Indigent Defense Commission (Commission), and the judiciary. In addition, Virginia capital
defense attorneys undertaking representation of Virginia death row inmates during federal
habeas corpus proceedings are entitled to compensation from the federal court system.*™
According to the 2010 BJS Report on Statewide Public Defender Systems, Virginia is one of
three states out of thirteen capital jurisdictions with statewide public defender systems that
“spent more than $2 million each to provide capital case representation of indigent defendants in
2007,” with expenditures totaling more than $2,600,000.

Virginia Indigent D efense Commission and Regional Capital Defender Offices

The Commission is primarily funded through Virginia General Assembly appropriations.”
Each Capital Defender makes an annual request for funding to the Commission, which is the
entity that ultimately determines the amount to request from the Virginia General Assembly for
each of the four RCDs.**” Budgets cover salaries for the attorneys, investigators, and mitigation
specialists for each office, office space rental, training for staff members, and most of the other
ancillary costs associated with the provision of capital indigent defense services at trial and on
direct appeal.°** Allocations of appropriated funds to the RCDs are determined by the

32 Ty order for a jurisdiction to ensure funding for the “full cost of high quality legal representation,” it must be
responsible for “paying not just the direct compensation of members of the defense team, but also the costs involved
with the requirements of the[] Guidelines for high quality representation (e.g., Guideline 4.1 [Protocol #1],
Guideline 8.1 [Protocol #5]).” See ABA Guidelines, supra note 62, 984-85.

383 ABA Guidelines, supra note 62, at Guideline 4.1, cmt.
54 18 U.S.C. § 3599(g)(1) (2013).
BJS Report, supra note 197, at 11.
VIDC Survey Response, supra note 7, at 11.
RCD West Survey Response, supra note 94, at 11-12.
Budget Documents provided by the Va. Indigent Def. Comm’n for all four Regional Capital Defenders, Apr.
20, 2012 (on file with author). Due to budget cuts, the office of the Appellate Defender was eliminated in 2009. See
Bring back office of Appellate Defender, VA. Law. WKLY., Jan. 30, 2012.

185

Commission.* Once funds are allocated to each RCD, each Capital Defender “ha[s] some
discretion as to spending, [but] the bulk of the budget is used for salary and rent,”“°

Table 2, below is a table listing the budgets for each of the four Regional Capital Defender
offices since the RCDs’ inception in 2004. ae

Table 2
Capital Defender 0 ffice Budget Funding from General Assembly, FY 2004-FY 2012, in dollars™
Office 2004 2005 2006 2007 2008 2009 2010 2011 2012
Central $492,859 | $482,130 | $489,990 | $537,992 | $846,412 | $716,690 712,050 679,927 890,941
North $588,832 | $529,110 | $542,470 | $615,448 | $937,000 | $913,370 840,652 754,245 778,249

Southeast | $477,850 | $486,370 | $496,330 | $543,785 | $870,652 | $835,210 | $721,583 | $675,928 | $913,609
Western $303,956 | $477,260 | $487,220 | $539,579 | $867,342 | $843,030 | $771,223 | $757,251 787,490

Total $1,863,497 | $1,974,870 | $2,016,010 | $2,236,804 | $3,521,406 | $3,308,300 | $3,045,508 | $2,867,351 | $3,370,289

Throughout Virginia, there were statewide salary increases from 2004 to 2006.* In 2007, the
Commission requested additional funds from the Virginia General Assembly as part of “several
steps [taken by the Commonwealth] to improve both public defender and private court appointed
indigent defense funding and services.” According to the Commission, “[t]he request was for
all [four] offices and included 24% salary increases for attorneys, increases for staff salaries and
[two] additional positions (attorney and mitigation specialist) for each office.” Funding for the
requested salary increase and establishment of additional staff positions—in addition to the 4%
salary increase received by all state employees—were received in 2007 (FY 08).34°

Private C ourt-A ppointed Capital Defense Counsel

Appropriations provided by the Virginia General Assembly to the Supreme Court of Virginia’s
Criminal Fund cover much of the remaining costs of providing representation to Virginia’s
indigent capital defendants and death row inmates.’ The Criminal Fund, administered by the
Office of the Executive Secretary of the Supreme Court of Virginia, finances the compensation
of all private counsel appointed by the circuit courts to provide representation at trial, on direct
appeal, or during state habeas corpus proceedings, as well any investigator, mitigation specialist,

wn RCD West Survey Response, supra note 94, at 11-12.
Id.

34" The four offices began operation July 1, 2004 (FY 2005), funds provided for initial start up and employment in
FY 2004. VIDC Survey Response, supra note 7, at app. Q35D.

32 A mounts listed are appropriations approved for each office by the Commission, with the exception of 2011,
which reflects the actual funding received. Fiscal years run July 1 through June 30. Id.

38 Id. Also in 2007, due to the flailing economy, the Govemor and General Assembly required a retum of
appropriated funds, requiring an annual reversion of $544,000 per year from the Commission. As a result, “some of
the new positions allocated to the capital defender offices in 2007 remained vacant in order to generate savings
toward the payment of the Reversion.” VIDC Annual 2011 Report, supra note 12, at 16-17.

34 VIDC 2011 Report to the General Assembly, supra note 12, at 15-16.

we VIDC Survey Response, supra note 7, at 11.

aay Interview with John Rickman and Mary Rickman, supra note 49; VA. CODE ANN. § 19.2-163 (2013); see also

RCD Central Survey Response, supra note 72, at 16; Sup. CT. oF VA., COURT-APPOINTED COUNSEL MANUAL, 5-1,
available at http://www. courts.state.va.us/courtadmi djs/ tapptatty/toc.pdf.

186

or other professional expert appointed by the court.® Criminal Fund expenditures, if approved
by the circuit court, may also cover reimbursement for other costs associated with court-
appointed representation, including travel expenses, clerical, postal, photographic, printing and
copying services.“ Table 3, below, includes the total Criminal Fund expenditures by the
Supreme Court of Virginia’s Fiscal Services Department for the administration of the capital

defense services from 2007 to 2011.°°
Table 3
Criminal Fund Capital Murder Expenditures by Fiscal Y ear, in dollars
Fiscal Y ear Total Expenditures in Dollars
2007 3,011,297.75
2008 2,304,123.89
2009 2,294,829.78
2010 $2,263,884.40
2011 2,478,576.68

According to the Director of Fiscal Services at the Supreme Court of Virginia, the total funding
spent from the Criminal Fund by the judiciary on indigent capital defense services from fiscal
year 2007 through fiscal year 2011 is $12,312,712."

Virginia Capital Representation Resource Center

The Virginia Capital Representation Resource Center (VCRRC) employs five attomeys who
provide representation to Virginia’s death row inmates during state and federal habeas corpus
proceedings and state clemency proceedings, along with private, court-appointed co-counsel.*
The VCRRC is funded primarily through Virginia General Assembly appropriations to the
Virginia State Bar, which receives funding for the VCRRC as a line item.** In addition,
VCRRC attorneys receive payment from the federal courts for representation in federal habeas
corpus proceedings, which comprises approximately 30 to 40% of VCRRC’s budget. 34 Tn 2007,
the Virginia Law Foundation of the Virginia State Bar also granted the VCRRC funding totaling
$25,000 “to create a comprehensive database related to all past and present capital cases in
Virginia.”

38 VCRRC Interview, supra note 26; VIDC Survey Response, supra note 7, at 15-17. The Criminal Fund does
not fund the RCDs, nor does it fund the VCRRC.

348 Email and Chart from John Rickman, Director, Fiscal Services Dep’t, Sup. Ct. of Va, to Paula Shapiro (Apr.
19, 2012) (on file with author).

”

351 Id.

52 VCRRC Interview, supra note 26.

353 Iq. See also VA. STATE BAR, 2011-12 Carrs HANDBOOK, Ch. 4, 40 (2013), available at
http://www. vsb.org/docs/ch-budget-finance.pdf (describing permitted VSB expenditures).

354 VCRRC Interview, supra note 26 (noting that the attomeys tum over the fees to be included in the VCRRC
budget). Federal law also permits, but does not require, counsel appointed to represent indigent death row inmates
under a state-imposed death sentence in federal habeas corpus proceedings “to represent their clients in state
clemency proceedings and entitles them to comp ion for that rep ion.” Harbison v. Bell, 56 U.S. 180,
194 (2013).

355 Law Foundation Announces Grant Awards, VA. STATE BAR, May 16, 2007,
http://www. vsb. i i dation- - grant-awards (last visited Aug. 2, 2013).

187

It does not appear, however, that all appointed counsel are compensated for their time expended
on representation of a capital defendant or death row inmate. This issue is discussed below.

Experts

The availability of funding for the full cost of outside experts to assist the defense at trial varies
across the Commonwealth. For example, RCD Central states that “[u]sually, cost is not the
factor in determining the need or the expert requested .... [T]here has not been an issue with
access to experts....”°°° By contrast, RCD Southeast reports that trial court approval of
funding for experts is “normally extremely limited.”*” A 2004 report by the Spangenberg
Group, under the auspices of the American Bar Association, explained that “some attorneys said
they barely get an expert in a capital case for DNA. One Richmond public defender told us a
judge denied her request for a DNA expert in a 7-year old homicide case from Norfolk where
DNA was the only remaining evidence,” and that, in this instance, “the [C]ommonwealth
[A]ttorney successfully argued that the expert was too much of an expense to the state.” With
respect to state habeas proceedings, the Commonwealth does not provide funding for experts
during this stage of a death penalty case.*°°

As described above, Virginia has improved and increased the availability of funding for capital
defense services, most notably through creation and funding of the Regional Capital Defender
offices that represent capital defendants at trial. The Commonwealth, however, does not ensure
adequate funding for high quality legal representation and funding for experts at all stages of a
capital case—particularly during state habeas corpus proceedings. Virginia, therefore, is in
partial compliance with this portion of Protocol #.

2. Counsel in death penalty cases should be fully compensated at a rate that is
commensurate with the provision of high quality legal representation and
reflects the extraordinary responsibilities inherent in death penalty
representation.

a. Attorneys employed by defe ions should be compensated
according to a salary scale that is commensurate with the salary scale of
the prosecutor’s office in the jurisdiction.

Salaried Capital Defenders

Both the Regional Capital Defender offices (RCD) and the VCRRC provide annual salaries to
staff attorneys who represent capital defendants and death row inmates. Currently, RCD
attorneys providing capital representation at trial and direct appeal earn at least $76,887 and up
to $129,992.°"' Table 4, below, provides the annual salaries of RCD attorneys as of March 2012.

See RCD Central Survey Response, supra note 72, at 12.

See RCD Southeast Survey Response, supra note 75, at 13.

SPANGENBERG, supra note 8, at 65.

See Protocol #1, supra notes 152-159 and accompanying text; VCRRC Interview, supra note 26.

VIDC Survey Response, supra note 7, at 12; VCRRC Survey Response, supra note 26, at 6.

361 Table: Capital Defenders Salary and Y ears as CD, provided by Jae K. Davenport, VIDC (Apr. 3, 2012) (on file
with author).

188

Table 4

Comp ion of Capital Defenders and Assistant Capital Defenders (As of 3/31/12)”
Position Annual Salary Hire Date Years as CD
Capital Defender Central 118,810 08-03-01 4
Capital Defender Westem 125,379 90-05-01 8
Capital Defender Southeast 118,810 09-10-05 2
Capital Defender North™ 129,992 09-10-05 2
Deputy CD Central 86,661 98-02-17 8
Deputy CD Westem 87,150 05-01-10 0
Deputy CD Southeast 86,661 12-03-10 0
Deputy CD North 89,190 10-03-10 2
Senior Assistant CD Central 76,877 07-05-10 0
Senior Assistant CD Central 76,877 90-08-06 4
Senior Assistant CD Western 76,877 06-08-10 1
Senior Assistant CD Westen 76,877 09-03-10 3
Senior Assistant CD Southeast 76,877 10-03-10 2
Senior Assistant CD Southeast 76,877 05-08-30 0
Senior Assistant CD North 76,877 Begin April 2012 Unable to determine
Senior Assistant CD North 76,877 Begin April 2012 Unable to determine

We were unable to obtain information on the salaries of attormeys employed at the VCRRC.

Capital Defender and Prosecutor Salary Parity

The ABA Guidelines require that attorneys employed by defender organizations be compensated
at a rate that is commensurate with salary scale of the prosecutor’s office in the jurisdiction.
Capital cases in Virginia are prosecuted at trial by Commonwealth’s Attorneys and Assistant
Commonwealth’s Attorneys.*” On appeal and during state habeas corpus proceedings, the
Commonwealth is represented by the Virginia Attorney General’s Office of Criminal Appeals. a
The salaries of Virginia’s Commonwealth’s Attorneys are determined by the estimated
population of the county or city s/he serves.*°’ Entry-level Assistant Commonwealth’s Attorneys
earn annual salaries between $45,000 and $69,305, while elected Commonwealth’s Attorneys
eam up to $135,882.°° Table 5, below, describes the salaries for Commonwealth’s Attorneys by
jurisdiction population for fiscal year 2011.

362

Id.
38 Virginia provides a salary differential in the area of Northem Virginia. VIDC Survey Response, supra note 7,
at app. Q3.
set ABA Guidelines, supra note 62, at Guideline 9.1(B)(2).
565 Va. ATT’y GEN., THE APPELLATE PROCESS FOR A VIRGINIA CAPITAL MURDER CONVICTION 1, available at
http: ://www.ag. virginia. gov/Programs%20and9 20Resources/Victim_Notification/< pdf.

ar VA. Comp. Bp., FY11 COMMONWEALTH’S ATTORNEY POLICIES AND PROCEDURES MANUAL 11 (2011),

available at http://www.scb.state.va.us/policy/FY 11CA.pdf.
® Employment, Va. COMMONWEALTH’S ATTY’s SERVS. COUNCIL, http://www.cas.state.va.us/employment.htm
(last visited Aug. 7, 2013).

189

Table 5

Population-based Salaries for Virginia C. wealth’s Attorneys, Fiscal Year 2011
Population July 1, 2010 to June 30, 2011 July 1, 2011 to June 30, 2012
Less than 10,000 51,706 51,706
10,000 to 19,999 57,458 57,458
20,000 to 34,999 63,202 63,202
35,000 to 44,999 113,760 113,760
45,000 to 99,999 126,397 126,397
100,000 to 249,999 131,139 131,139
250,000 or more 135,882 135,882

Salaries of Commonwealth’s Attorneys, however, are often supplemented by additional funding
from the local jurisdiction.*” For example, the Richmond Commonwealth Attorney reports that
prosecutors who serve as first chair in criminal cases in that jurisdiction eam between $95,000
and $185,000 in salary.°” Based on the salaries identified above, it appears that there is general
parity among the highest level of management between the four Capital Defenders, the Attorney
General, and elected Commonwealth’s Attorneys, although the annual salary of the four Capital
Defenders, which range from $118,810 to $129,990, is less than Virginia’s Attorney General,
who receives an annual salary of $150,000,” and is also slightly less than the salaries of
Commonwealth’s Attorneys in larger cities and counties. Notably, however, deputy capital
defenders, whose counterpart may be the elected Commonwealth’s Attorney in many capital
cases, earn considerably less than the elected prosecutor in some counties. On a related note, it
appears that salaries for assistant RCD attomeys are far below market rates, which does not
promote retention of highly-qualified, experienced lawyers and instead leads to high turnover in
employment in the RCDs.

Because there is approximate parity between some capital defenders and prosecutors in the
Commonwealth, it appears that Virginia is in partial compliance with this portion of Protocol #4.

389 Va. Comp. Bp., FY11 COMMONWEALTH’S ATTORNEY POLICIES AND PROCEDURES MANUAL 11 (2011),
available at http://www.scb.state.va.us/policy/FY 11CA.pdf.

See, e.g., Will Jones, Council Backs Salary Supplements for Prosecutors, RICHMOND TIMES-DISPATCH, May 13,
2011 (describing Richmond City Council’s approval of $100,000 for additional funding to support prosecutors’
salaries in Richmond in 2012).

31 Richmond Commonwealth’s Attorney Survey Response, provided by Michael Herring, Commonwealth’s
Attomey for the City of Richmond, at 4 (Apr. 1, 2013) (on file with author). Mr. Herring is also a member of the
Virginia Death Penalty Assessment Team.

am Virginia State Government Salary, SUNSHINE REV.,
http: i index.php/V irginia_state_govemment_salary (last visited Apr. 12, 2012). See also Data
Center: Salaries of Virginia state employees 2010, RICHMOND TimEs-DISPATCH,
http://d imesdi h. les-virgi tate-employees/ (last visited Aug. 2, 2013).

190

b. Flat fees, caps on compensation, and lump-sum contracts are improper
in death penalty cases.

c. Appointed counsel should be fully compensated for actual time and
service performed at an hourly rate commensurate with the prevailing
rates for similar services performed by retained counsel in the
jurisdiction, with no distinction between rates for services performed in
or out of court. Periodic billing and payment should be available.

Private attorneys appointed by Virginia courts to undertake representation for indigent capital
defendants or death row inmates at trial, on direct appeal, and during state habeas corpus
proceedings are compensated at an hourly rate that is distinguished by whether work is
performed in or out of court.°”

The hourly rate available to appointed counsel should be “an amount deemed reasonable by the
court,” which cannot exceed $200 per hour for in-court and $150 per hour for out-of-court
representation.°” Judges may, in their discretion, set lower hourly rates on a case-by-case
basis.” Courts also have discretion to approve the number of hours and the amount of funds
provided for capital representation.°” Because the trial judge has “the sole discretion to fix the
amount of compensation to be paid counsel appointed by the court,” rates of compensation for
counsel appointed to represent indigent capital defendants may vary significantly.*”” According
to a report in 2001, for example, “[t]he total amount awarded to appointed capital counsel ranges
from $10,000 to over $100,000.58 According to estimates in 2012, “capital trials require, on
average, 3,557 hours of attorney time.”°”

Periodic billing and payment is available to court-appointed counsel in death penalty cases.**°
Appointed counsel may submit a monthly bill, including a statement of all costs incurred and
fees charged in the case during that month, to the circuit court when the fees and costs incurred
during that month exceed $1,000." If the court deems such charges reasonable, then the court
will direct that payment be made from the Criminal Fund.*” Court-appointed counsel must
submit to the court, within thirty days of the completion of capital representation, “a detailed
accounting of the time expended for that representation.”

33 Va. CODEANN. § 19.2-163(2) (2013).
Id.; Interview with John Rickman and Mary Gilbert, supra note 49.
° Interview with John Rickman and Mary Gilbert, supra note 49; RCD West Survey Response, supra note 94, at
14. The Supreme Court of Virginia had previously made the rates described above the “suggested” compensations
rated for capital counsel. Interview with John Rickman and Mary Gilbert, supra note 49.
3° Interview with John Rickman and Mary Gilbert, supra note 49.
aT Va. CODEANN. § 19.2-163(2) (2013); White, supra note 23, at 358.
378 White, supra note 23, at 338 (citing Telephone Interview with Overton P. Pollard, Exec. Dir, Va. Pub.
Defender Comm’n (Feb. 15, 2001)).
aD. Dupont & Hammond, supra note 261, at 217.
380 Va. CODEANN. § 19.2-163(2) (2013).
om COURT-APPOINTED COUNSEL MANUAL, supra note 347, at 5-5.
d

Id.
383 Va. CODEANN. § 19.2-163(2) (2013).

191

Table 6, below, provides the amount of funding from the Criminal Fund expended on capital

defense attorney services from fiscal year 2007 through fiscal year 2011.2
Table 6
Criminal Fund Expenditures for Attorney Services in Capital Murder Cases
Fiscal Y ear Expenditures, in dollars
2007 32,377,215.11
2008 1,852,923.55
2009 1,984,724.93
2010 1,727,951.28
2011 1,984,490.06

Virginia’s maximum hourly rates are comparable to the amount provided by the federal
government to court-appointed capital counsel providing representation during federal habeas
corpus and clemency proceedings.“ However, as the American Bar Association has recently
pointed out, this authorized rate “is usually much less than what counsel can charge other clients
in other kinds of cases.”°8° Moreover, the Assessment Team is unable to determine the actual
hourly rates approved by trial courts across the Commonwealth for compensation of private
counsel appointed to undertake representation of a capital defendant or death row inmate.

While the current hourly rates cannot exceed the $200 in-court and $150 out-of-court
maximums, trial courts across the Commonwealth may approve varying compensation rates.

Furthermore, the distinction between compensation for in- and out-of-court time is not only in
contravention of the ABA Guidelines, but may also discourage appointed counsel from zealously
advocating on behalf of their client, which may include negotiation and acceptance of a plea to
avoid a capital trial.2* In direct appeal cases, however, the Supreme Court of Virginia may

38 Email from John Rickman, supra note 350.
38 18 U.S.C. § 3599 (providing $178 an hour). The federal rate does not distinguish between and in and out of
court services. Id.
386 Id.; see also Letter from Wm. (Bill) T. Robinson Ill, ABA President, to Samuel W. Phelps, U.S. Court of
Appeals for the Fourth Circuit, on Comments of the American Bar Association to Proposed Special Procedures for
iewing Attomey Ci i Requests in Death Penalty Cases (Jan. 30, 2012), available at
http://www.americanbar.org/content/dam/aba/uncategorized/GA 0/2012jan30_attycompensationdeathpenalty.authch
eckdam.pdf (“The Association’s 25 years of experience recruiting and training defense counsel for death penalty
cases has demonstrated the already very difficult task of recruiting skilled and experienced counsel to accept capital
cases at the CJA rate of $178/hour. That is because the authorized rate is usually much less than what counsel can
charge other clients in other kinds of cases.”)

Previously, when the Supreme Court of Virginia’s hourly rates were suggested amounts and not compensation
caps, circuit court judges from jurisdictions throughout the Commonwealth permitted counsel fees that ranged from
$100 to $400 per hour. Telephone Interview with Joseph Flood, Va. Cap. Def. Att'y and Va. Death Penalty
Assessment Team member (June 7, 2012) (noting that the current hourly cap is in response to that variance).

388 Similarly, Philadelphia compensates counsel at disparate rates for in and out of court work in death penalty
cases. Lead counsel receives a flat “preparation fee” of $2,000, which includes the first half-day of trial. Report and
Recommendations in Commonwealth v. McGarrell, 77 EM 2011, CP-51-CR-0014623-2009, 10 (Pa. Feb. 21,
2012). Over the course of the remaining trial, counsel receives $200 for half days, $400 for full days, and a $1,700
fee for the penalty phase of a case. Id. For cases disposed of before trial, no additional compensation is provided
and, if a case is concluded before the trial date for any reason, lead counsel’s preparation fee is reduced by one-third
to $1333.00. Id. The Pennsylvania Supreme Court characterized this fee structure as
ly inconsistent with how c trial lawyers work, particularly in cases such as these which
typically involve enormous preparation time and are frequently best resolved by a non-trial disposition. Capital
defendants and their court appointed counsel are ill-served by a compensation system which favors the longest

192

authorize payments for representation through a flat fee. For example, it one recent capital case,
the Virginia Supreme Court authorized payment of $5,000 as the “total fee [] to be shared by all
appointed counsel in the case . . . .”°%° A separate problem relates to the reduction of
reimbursement amounts ultimately approved for payment by the Supreme Court of Virginia’s
Office of the Executive Secretary. On a number of occasions, circuit court judges have approved
compensation orders for court-appointed defense counsel in capital cases, which were then
reduced—on one occasion by 80% —by the Supreme Court of Virginia’s Office of the Executive
Secretary without explanation.

Furthermore, no entity in Virginia keeps track of the hourly rates requested by counsel, approved
by the trial court, and ultimately approved for reimbursement by the Office the Executive
Secretary. Accordingly, there is no mechanism to determine if compensation levels for court-
appointed private counsel are consistent across the Commonwealth or if the rates are
commensurate with similar services performed by retained counsel in the jurisdiction. *

Virginia, therefore, is in partial compliance with this portion of Protocol #4.

3. Non-attorney members of the defense team should be fully compensated at a
rate that is commensurate with the provision of high quality legal
representation and reflects the specialized skills needed by those who assist
counsel with the litigation of death penalty cases.

a. Investigators nployed by defend izati should be
compensated according to a salary scale that is commensurate with the
salary scale of the prosecutor’s office in the jurisdiction.

b. Mitigation specialists and experts employed by defend izations
should be compensated according toa salary scale that is commensurate
with the salary scale for comparable expert services in the private sector.

c. Members of the defense team assisting private counsel should be fully
compensated for actual time and service performed at an hourly rate

possible trial over the most cc t and intensive jations. Moreover, such a system also ignores
the interest of victims’ families, the prosecutor and the court in obtaining dispostions which are both fair and
efficient.

Id. at 11 (concluding that the c ion scheme of court-appointed counsel in death penalty cases in

Philadelphia i is “grossly inadequate.”).

38 See, e.g., Letter from Patricia L. Harrington, Clerk, Sup. Ct. of Va., to Meghan Shapiro in re Mark Eric Lawlor
v. Commonwealth, No. 120481 (Jul. 6, 2012) (“For all appeals filed with the Court, there is a lump sum attorney’s
fee awarded to appointed counsel.”) (on file with author). In another case, counsel was offered a flat fee of $2,500
for the 250 hours of ion of a capital defendant on direct appeal. Email from Jonathan Shapiro to Sarah
Turberville (Aug. 13, 2012) (on file with author) (estimating that three attomeys expended 250 hours representing
John Allen Muhammed on direct appeal).

See Rosenfield’s Petition for En Banc Reconsideration, Porter v. Kelly, Record No. 091615 (filed with the

Supreme Court of Virginia) (on file with author) (“request[ing] [] the en banc Court to reconsider a decision of a
panel of this Court to reduce court-appointed counsel’s fee and costs [for habeas representation] by 80% without
explanation and without recourse”).
3 On a separate, but related, note, fee caps imposed for representation of a non-capital defendant in Virginia “are
at or near the lowest in the nation.” Locke E. Bowman, Lemonade Out of Lemons: Can Wrongful Convictions Lead
to Criminal Justice Reform?, 98 J. Crim. L. & CRIMINOLOGY 1501, 1516, n.24 (2008). See also VA. CODE ANN. §
19.2-163 (2013) (attomeys may receive maximum compensation of $1,235 for representing a client who might
receive more that twenty years in prison, with an additional $850 permitted in special circumstances).

193

commensurate with prevailing rates paid by retained counsel in the
jurisdiction for similar services, with no distinction between rates for
services performed in or out of court. Periodic billing and payment
should be available.

Non-attorney staff members of Virginia’s capital defense teams are compensated by salary if
employed by an RCD or the VCRRC. Non-attomey members of the defense team appointed by
the courts are compensated at hourly rates set by Virginia courts and paid out of the Criminal
Fund.

Funding for Non-A ttorney Member of Defense Team—RCDs and VCRRC

RCD budgets from the Commission must cover the cost of compensating staff investigators and
mitigation specialists employed at each office, who assist in the provision of capital defense
services.°* Table 7, below, provides the current salaries of non-attomey members of the defense
team employed by the RCDs.*”

Table 7
Salaries of Non-Attorney Members of Defense Team Employed at RCDs, Fiscal Y ear 2011

RCD North Salary (hired prior to 7/1/10) Salary (hired after 7/1/10)
Investigator $50,592 $48,183

Mitigation Specialist $53,061 $50,534

RCD Central, RCD Southeast, RCD West

Investigator | $46,890 | $44,658

Mitigation Specialist | $48,124 | $45,833

There are no provisions for salary increases for RCD investigators and mitigation specialists
based on length of service.? In addition, no RCD possesses funding to Support hiring of
additional expert, investigative, or mitigation services for use in capital trials.°®

RCD attorneys, however, may petition the court for funding to support payments for additional
expert services, including for investigators and mitigation specialists. If the court denies the
RCD attorney’s request for payment of expenses, the RCD may submit to the Commission’s
Executive Director, within thirty days of the court’s order denying payment, a request for
approval of funding “prior to any commitment for the expenditure being made and prior to
incurring such expenses.”°97 In order to obtain reimbursement, RCDs “must demonstrate an
extraordinary need and show that the presiding judge has refused a formal motion for the

5 VIDC Survey Response, supra note 7, at 12; RCD Southeast Survey Response, supra note 75, at 12-13;
Interview with Doug Ramseur, supra note 109.

33 Table: Non-Attorney Salaries, provided by Jae K. Davenport, Standards & Practice Enforcement Att’y, Va.
Indigent Def. Comm’n (Apr. 3, 2012) (on file with author).

5! “RCD West Survey Response, supra note 94, at 13.

55 Id. at 8-9; RCD Southeast Survey Response, supra note 75, at 11; RCD North Survey Response, supra note 75,
at 8; RCD Central Survey Response, supra note 72, at 11.

58° VIDC Survey Response, supra note 7, at 12; RCD West Survey Response, supra note 94, at 12.

3°" VIDC Policy Section 10.5.

194


funds.**°> Commission approval for reimbursement is discretionary and, historically, the
Commission has not possessed any additional funding available for this purpose. °°”

Due to case volume and limited resources, RCD Southeast reports that “once every few years,” it
must request funds from the circuit court to obtain additional investigative assistance.*°° RCD
Central has also requested the court to fund a private mitigation specialist due to the
unavailability of RCD Central’s staff.“ RCD West reports that it has never requested funding
for the appointment of private mitigation specialists or investigators.” RCD North reports that
its office must request additional mitigation specialists and investigators in almost every capital
case assigned to it.“°° Also, each RCD reports that it regularly requests the court to provide
funding for mental health experts, pursuant to the Virginia Code.**

The VCRRC budget must cover the cost of any investigative, mitigation, mental health or other
expert assistance that may be provided by that office to Virginia’s death row inmates during state
habeas corpus or clemency proceedings.“ No Virginia court has ever granted funding to the
VCRRC to support payment of expert or ancillary capital defense services for use during state
habeas proceedings.“

Supreme Court of Virginia Expenditures on Non-Attorney Members of the Defense Team

When private counsel is appointed by the court to represent an indigent capital defendant,
payment for ancillary and expert services related to this representation is made out of the
Criminal Fund, administered by the Supreme Court of Virginia Fiscal Services Division.*”
Court-appointed capital counsel, as well as privately-retained capital defense attorneys whose
clients are unable to afford expert services, must seek circuit court approval for the appointment
and compensation of any experts, investigators, and mitigation specialists. “°° In addition, as
described above, RCD attormeys may also request funds for experts from the Virginia courts.‘

3° VIDC Policy Section 10.5(B)(i).

3° VIDC Survey Response, supra note 7, at 13 (“[T]he determination of whether the VIDC will pay for case costs
that the Court denies is linked to available funding, which has not been available,” since “[t]he VIDC Budget is not
created with the intent that case related costs (beyond routine travel) will be covered by the agency.”); VIDC Policy
Section 10.5. However, when asked if the Commission provides any funds for expert services, all four Capital
Defenders responded no.

‘00 RCD Southeast Survey Response, supra note 75, at 12. RCD Southeast has not yet petitioned the circuit courts
for funding of mitigation specialists for use in capital trials. Id.

‘0! RCD Central Survey Response, supra note 72, at 11.

40. RCD West Survey Response, supra note 94, at 9.

“03 RCD North Survey Response, supra note 75, at 9.

44 Va. CODEANN. §§ 19.2-264.3:1, 19.2-264.3:1.2 (2013); RCD West Survey Response, supra note 94, at 9; RCD
Central Survey Response, supra note 72, at 11; RCD Southeast Survey Response, supra note 75, at 12; RCD North
Survey Response, supra note 75, at 9.

405 VCRRC Interview, supra note 26.

Id. (noting that this is since the Supreme Court of Virginia obtained exclusive jurisdiction in 1995).

407 Interview with John Rickman and Mary Gilbert, supra note 49; VA. CoDE ANN. § 19.2-332 (2013).

498 VIDC Survey Response, supra note 7, at 13; RCD West Survey Response, supra note 94, at 14.

“Va. CODE ANN. § 19.2-264.3:1.3(A)-(B) (2013).

40K

195

Table 8, below, describes payments made from the Criminal Fund in fiscal years 2007—2011 for
the assistance of investigators, mitigation specialists and other experts in capital trials.‘"°

Table 8
Criminal Fund Capital Murder Payments on Ancillary and Expert Services, in dollars™”
Type of Service FY 2007 FY 2008 Fy 2009 FY 2010 FY 2011
Specified Per Diem Payments™ 284,0402 | $150,827 109,508 129,010 222,834
Medical Services™ 100,005 2,775 24,530 90,005 29,521
Skilled Services™ 106,999 96,474 24,037 53,816 78,679
Public Info. & PR Services™ 12,621 35,482 17,182 40,005 40,986
Total 503,666 285,598 175,257 312,836 372,020

As illustrated above, Criminal Fund expenditures supporting ancillary and expert services in
death penalty trials vary greatly by year. There are no maximum fees or compensation caps for
expert services in capital cases, and hourly rates and total funding are left to the discretion of
each circuit court judge.“"° According to RCD North, investigators and mitigation specialists
appointed by the circuit court judges in its jurisdiction are compensated at approximately $85 an
hour.”!’? RCD Central reports that experts are compensated at “fair” hourly rates.“"° Periodic
billing and payment is available for court-appointed expert and other ancillary services,
including investigators, mitigation specialists and other experts."!°

As previously discussed, however, the Commonwealth does not provide funds for investigators,
mitigation specialists, and other experts for use in capital defense representation during state
habeas corpus proceedings.’“” There is one investigator/mitigation specialist at the VCRRC who
assists in the representation of all Virginia death row inmates during this stage of proceedings. “7!

“10 Email from John Rickman, supra note 349; Interview with John Rickman and Mary Gilbert, supra note 49. The
Fiscal Services Department is required to track capital case funding by “state-wide” categories, which are described
in Table 7. Interview with John Rickman and Mary Gilbert, supra note 49. However, the precise cost of each
prescribed category may vary depending upon how the Court’s seven reimbursement specialists elect to code an
approved expense; thus, costs associated with expert services in one case may be coded differently than incurred
expenses in another case. Id.

‘11" ‘Amounts are rounded up to the nearest dollar.

‘2 Specified Per Diem Payments fund various types of expert services. Interview with John Rickman and Mary
Gilbert, supra note 49.

“13 Medical Services include costs associated with use of medical experts. Id.

“14 Skilled services costs are typically compensation for mitigation specialists, private investigators, and sometimes
other experts. Id.

ne Public Information and Public Relation Services are costs associated with private investigators. Id.
Id.

417
418
419

RCD North Survey Response, supra note 75, at 8.

RCD Central Survey Response, supra note 72, at 10.

RCD Southeast Survey Response, supra note 75, at 11; RCD Central Survey Response, supra note 72, at 10, 16
(“All of our expert appointment order permit periodic billing and payment.”); Interview with John Rickman and
Mary Gilbert, supra note 49.

0 ‘See Protocol #1, supra.

“1 VCRRC Interview, supra note 26.

196

Prosecution and Privately-Retained Counsel’s Ancillary Costs

Virginia prosecutors’ budgets include costs for employment of non-lawyer staff to assist in
prosecution of capital cases, but need not include the cost of investigative services provided by
law enforcement agencies, such as local and state police, sheriff's offices, the Department of
Forensic Science or Division of Consolidated Laboratory Services, or the statewide medical
examiner’s office. The Assessment Team, however, was unable to confirm the compensation of
investigators employed by Virginia’s prosecutors to assist in death penalty cases. The
Assessment Team was also unable to determine whether compensation for mitigation specialists
employed by the RCDs or funding granted by circuit courts for compensation of non-attorney
defense team members are commensurate with the salary scale for comparable expert services in
the private sector.

4. Additional compensation should be provided in unusually protracted or
extraordinary cases.

RCD and VCRRC attorneys, as salaried employees, do not receive additional compensation in
protracted or extraordinary cases. Court-appointed private attomeys, investigators, mitigation
specialists, and other expert non-attorney members of a capital defense team may receive,
subject to the discretion of the circuit court judge, additional compensation in unusually
protracted or extraordinary capital cases./2? The Assessment Team notes, however, that even in
protracted or extraordinary cases, the hourly rate paid to capital counsel, as well as the full
amount of reimbursement received for the attorney’s services, are subject to approval by the trial
court and Supreme Court of Virginia, which is in contravention of the ABA Guidelines.

5. Counsel and members of the defense team should be fully reimbursed for
reasonable incidental expenses.

All capital counsel appointed by the courts to provide representation at trial or on direct appeal
are permitted to request reimbursement for reasonable incidental expenses, subject to approval
by the presiding circuit judge. Trial judges have the discretion to pay expenses incurred by
capital defense counsel if the judge “deems [payment] appropriate under the circumstances of the
case.“ In most instances, RCD attorneys and non-attomey staff members are fully reimbursed
by the Commission for reasonable incidental expenses incurred, although there ma

“occasionally” be some out-of-pocket costs for which RCD attorneys are not reimbursed.*”°
According to the Director of the Fiscal Services Department for the Supreme Court of Virginia,

“22 Id. In practice, “[cJourts usually authorize a set dollar amount for those providing services and counsel may
make requests for further funding by motion to the court.” RCD West Survey Response, supra note 94, at 8.

3 RCD West Survey Response, supra note 94, at 15.

“4 White, supra note 23, at 338 (citing VA. CODE ANN. § 19.2-163(2) (2013)); Interview with John Rickman and
Mary Gilbert, supra note 49.

®5 VIDC Survey Response, supra note 7, at 13; RCD West Survey Response, supra note 94, at 12; Telephone
Interview by Sarah Turberville, with Michael Siem, Principle, Fish & Richardson P.C. (July 5, 2012) (describing
Siem’s 2007 rep ion of a capital defendant on direct appeal in which no incidental expenses were reimbursed
to counsel).

197

on rare occasions, the Supreme Court has provided funding for “unique” or unusual expenses to
the RCDs, although never for costs associated with attomey compensation. ‘”°

Requests for payment of fees for travel or other related expenses submitted “by special
justices... court-appointed counsel, court-appointed experts, substitute judges, retired judges
and others must be submitted no later than thirty (30) days after the service or the travel is
completed or, in the case of court-appointed counsel, within thirty (30) ) days of the completion of
all proceedings in the court for which the request is being submitted.” Bet

The Office of the Executive Secretary of the Supreme Court of Virginia maintains a separate
account for funding and reimbursement requests for costs associated with capital and non-capital
indigent defense representation during state habeas corpus proceedings.“ In 2011, the Court
spent $92,896 on defense representation in state habeas cases.*”° In order to be reimbursed,
court-appointed habeas counsel must provide itemized expense reports, attach receipts, and
include the number of miles traveled“? However, VCRRC attomeys, who are salaried
employees, do not receive reimbursement for reasonable incidental costs associated with
representation of death row inmates during state habeas proceedings.**! We were unable to
determine whether non-VCRRC court-appointed counsel providing representation during state
habeas proceedings receive reimbursement for reasonable incidental expenses.

Conclusion

Virginia’s funding of the costs associated with providing legal representation for capital
defendants and death row inmates at trial, on direct appeal, and during capital post-conviction
proceedings is in partial compliance with Protocol #4 (ABA Guideline 9.1). A summary of the
Virginia Assessment Team’s findings and recommendations relative to this Protocol are found in
the final section of this Chapter, entitled “Final Conclusions and Recommendations.”

“8 Interview with John Rickman and Mary Gilbert, supra note 49.
‘7 OFFICE OF THE EXEC. SEC’Y OF THE SUP. CT. OF VA., POLICY REQUIRING TIMELY SUBMISSION OF VOUCHERS
AND PAYMENT REQUESTS (effective Nov. 1, 2009), available at
http://www. courts.state. va.us/courtadmin/aoc/fiscal/scv_pol_voucher_pymt_requ.pdf (hereinafter SOCV Policy on
Payment Requests); see VA. CODE ANN. § 19.2-163 (2013).
i Interview with John Rickman and Mary Gilbert, supra note 49.

Id.
430 COURT-APPOINTED COUNSEL MANUAL, supra note 347, at 5-6.
Interview with Ed Ungvarsky, supra note 73; VCRRC Interview, supra note 26.

198

E. Protocol #5

Training (Guideline 8.1 of the ABA Guidelines on the Appointment and Performance
of Defense Counsel in Death Penalty Cases)

1. The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the defense team.

The ABA Guidelines, acknowledging the “unique skills” required to provide high quality capital
defense representation, emphasize that capital jurisdictions must provide “comprehensive” and
specialized training to all attorney and non-attorney members of a capital defense team.**”

Virginia’s Funding for Training of the Capital Defense Team

RCD budgets must support, in addition to the various expenses discussed in Protocol #, the
costs of any training provided to RCD staff.“*? Typically, annual fiscal year budgeting for
training and continuing education, which includes registration and travel, for all eight capital
defense staff members in each RCD, is, on average, between $2,200 and $3,400.% The
Commission acknowledges that its appropriations are inadequate for the effective training,
professional development, and continuing education of all members of capital defense teams in
Virginia.’ Virginia Capital Defenders have also stated that their offices do not receive proper
funding and resources to adequately train its capital defenders in all aspects of litigation.”*°

RCD capital counsel are encouraged to use Commission funding for internal trainings conducted
by members of the Virginia State Bar or the local capital defense community, rather than for
participation in out-of-state or national defender training programs.**” According to one RCD,
until 2011, the Commission had imposed a ban on the use of funds for out-of-state travel for
RCD attorneys and non-attorneys to attend outside trainings.“* RCD North states that there is
insufficient funding to adequately train its capital defenders, mitigation specialists, and
investigators, and there are not enough funds to send staff to national trainings.“° The

‘82 ABA Guidelines, supra note 62, at Guideline 8.1, cmt.

‘83 VIDC Survey Response, supra note 7, at 17, 22. Each office may request additional funding from the court or
apply for additional funds from the Commission, which previously has been unable to provide additional funding.
Id. at 12.

‘St Interview with Doug Ramseur, supra note 109 (noting that this is the line item budget for training for fiscal year
2012, that includes $1,200 for registration fees and $2,200 for travel expenses); RCD North Survey Response, supra
note 75, at 17 (stating that the total training budget is $2,200).

=: VIDC Survey Response, supra note 7, at 22 (noting that the RCDs are limited in terms of the availability of
funds, not the availability of appropriate training pro: ).

“86 RCD Central Survey Response, supra note 72, at 19; RCD Southeast Survey Response, supra note 75, at 23
(“This office could benefit from increased amounts of funding for training.”); RCD North Survey Response, supra
note 75, at 16 (“not enough money to send staff to national trainings”). However, the RCD West considers the
funding adequate for the effective training of all members of his defense team. RCD West Survey Response, supra
note 94, at 19.

‘87 RCD Central Survey Response, supra note 72, at 13; Interview with Doug Ramseur, supra note 109 (noting a
previous ban on out-of-state travel expenditures).

88 Interview with Doug Ramseur, supra note 109.

“8° RCD North Survey Response, supra note 75, at 16-17 (noting each office’s training budget is $2,200 per year).

199

Commission asserts that the ability of RCD staff to attend national training sessions “depends on
the costs of the programs and the availability of funding.”““°

The Commission approves specialized training programs for attorneys seeking eligibility to
receive appointments to capital cases.““! It does not, however, offer attorneys any training on
capital defense representation, nor does it provide funding for the training of court-appointed
private counsel, mitigation specialists, or investigators during any stage of capital proceedings. “”

Other Entities Providing Training to Capital Defense Counsel

While Virginia does not provide funding designated specifically for training of capital defense
counsel in the Commonwealth, since 1992 the Criminal Law Section of the Virginia Bar
Association has sponsored an annual, two-day Capital Defense Workshop (Workshop).“? The
Virginia Law Foundation (VLF), a private non-profit organization, has provided grants to the
Criminal Law Section to subsidize participation of capital defenders in the Workshop.“ This
Workshop is the only educational program available in the Commonwealth that satisfies the
Commission’s training requirements for lawyers wishing to qualify for appointment to a capital
case.“ Each Capital Defender reported that their staff attorneys attend the annual Workshop
and out-of-state trainings when funds are available. ‘“°

In 2009, the Supreme Court of Virginia’s Educational Services Department cosponsored with the
National Judicial College (College) a joint training on “best practices in death penalty cases”
available to Virginia judges and attorneys.““’ Funding for this training, which was attended by a
select group of approximately forty judges, prosecutors, and capital defense attorneys, was
provided by the College through a grant from the U.S. Department of Justice’s Bureau of Justice
Assistance (BJA).“° Topics included in the two-day program focused on negotiations and the
appointment of counsel, jury selection, discovery obligations, mental health and mental
retardation, future dangerousness, trends in mitigation and aggravation, case management, and
perspectives on capital punishment.*?

The VCRRC also has conducted capital litigation training, including the Virginia Death Penalty
College, and is planning a “Bring Your Own Case” workshop for the Virginia capital defense

VIDC Survey Response, supra note 7, at 23.
“Td. at 17.
“Td. at 8, 17.
Telephone Interview by Paula Shapiro with Sharon K. Tatum, Exec. Dir., Va. Law Found. (April 18, 2012) (on
file with author). Each year, approximately 200 to 250 capital defense attomeys, mostly public defenders, attend the
event for a V LF subsidized rate of $65 per person. Id.

“Id. (totaling approximately $288,800 since 1992).
“5° Td. See also VA. CODE ANN. § 19.2-163.8(A)-(B) (2013); Statutory Authority and Qualifications, VA.
INDIGENT DEF. COMM’N, http://www.publicdefender.state.va.us/serving.htm (last visited Aug. 2, 2013).
“© RCD West Survey Response, supra note 94, at 15; Interview with Ed Ungvarsky, supra note 73; RCD
Southeast Survey Response, supra note 75, at 19; RCD Central Survey Response, supra note 72, at 17.
“4” Telephone Interview by Paula Shapiro with Caroline Kirkpatrick, Dir., Education Dep’t, Sup. Ct. of Va. (Apr.
20, 2012) (on file with author).

Id

9 Sup. CT. OF VA. OFFICE OF EXEC. SEC’y & NAT’L JUDICIAL COLL., AGENDA: BEST PRACTICES IN DEATH
PENALTY CASES: A WORKSHOP FORJUDGES AND ATTORNEYS (Feb. 2-3, 2009) (on file with author).

200

community to assist on active capital cases.” This training is supported by a grant received
from the BJA.”! The Virginia Capital Case Clearinghouse (VC3), maintained by the
Washington and Lee University School of Law, provides a capital defense resource guide for
pretrial and trial proceedings that is available to capital defense attorneys who register for
access.“ Finally, Virginia CLE, a non-profit educational division of the VLF, publishes a
resource manual entitled Trial of Capital Murder Cases in Virginia.

Because the Commonwealth does not provide funding to ensure that all members of the defense
team, at every stage of a capital case, receive effective training and continuing professional
education, Virginia is not in compliance with this portion of Protocol #5.

2. Attorneys seeking to qualify to receive appointments should be required to

satisfactorily « lete a ive training prog: approved by the
independent appointing authority, i in the defense of capital cases. Such a
program should include, but not be limited to, presentations and training in

the following areas:

Relevant state, federal, and international law;

. Pleading and motion practice;

Pretrial investigation, preparation, and theory development regarding
guilt/innocence and penalty;

d. Jury selection;

e. Trial preparation and presentation, including the use of experts;

f. Ethical considerations particular to capital defense representation;

g. Preservation of the record and of issues for post-conviction review;
h

i

j

eo yp

Counsel’s relationship with the client and his/her family;

Post-conviction litigation in state and federal courts;

The presentation and rebuttal of scientific evidence, and developments
in mental health fields and other relevant areas of forensic and biological
science.

3. Attorneys seeking to remain on the roster or appointment roster should be
required to attend and successfully complete, at least once every two years, a
specialized training program approved by the independent appointing
authority that focuses on the defense of death penalty cases.

The Virginia Code directs the Supreme Court of Virginia and the Commission, in conjunction
with the VSB, to promulgate qualification standards for attomeys seeking appointments to
represent an indigent capital defendant or death row inmate." The Code specifies that the

in VCRRC Interview, supra note 26.
Id

‘© Welcome to VC3.org, VA. CAPITAL CASE CLEARINGHOUSE, http://www.vc3.org/overview/ (last visited Aug. 2,

2013). In addition, the VC3 Executive Director provides free consultations on Virginia capital case and third-year

Washingian and Lee law students are available through the VC3 “to assist with legal research, drafting motions and

legal memoranda, interviewing potential witnesses, reviewing and summarizing records, and other services.” Id.

About Us, Va. CLE, http://www.vacle.org/aboutus-pg23.aspx (last visited Aug. 2, 2012); Interview Sharon

Tatum, supra note 443; see also Trial of Capital Murder Cases in Virginia, VA. CLE,

http://www. vacle.org/product.aspx?zpid=1011 (last visited Aug. 2, 2013).

“* Va. CODEANN. § 19.2-163.8(A) (2013).

201

qualification standards must “take into consideration, to the extent practicable... current
training in death penalty litigation [and] current training in the analysis and introduction of
forensic evidence, including deoxyribonucleic acid (DNA) testing and the evidence of a DNA
profile comparison to prove or disprove the identity of any person.”

Accordingly, in order to become certified for appointment as lead counsel or co-counsel in a
capital trial, Virginia’s qualification standards require counsel to have obtained, “within the past
two years, at least six hours of specialized training in capital litigation, plus at least four hours of
specialized training” in forensic science as described in the Virginia Code.*° Attorneys initially
seeking to obtain certification to represent a death row inmate on appeal or during state habeas
corpus proceedings, however, are not required to complete any capital training; instead, counsel
at these stages must attend the requisite ten hours of training only every two years to maintain
certification.”°

The training requirements in the Virginia qualification standards, however, do not ensure that
capital counsel at each stage of the proceedings satisfactorily complete a comprehensive training
program on all of the areas covered by the ABA Guidelines. According to the Commission,
while the approved specialized training courses “generally cover the topics” required in the ABA
Guidelines, the Commission “does not s pecifically require that an attorney be trained in each of
the specific topics that are mentioned.”** There are also no training requirements for privately-
retained capital counsel at any stage of Virginia capital proceedings.

Each RCD has the discretion to require its staff attomeys to complete additional training outside
of the ten hours required by the Commission. RCD North, for example, “conduct[s] in-house
training on intellectual disabilities and mental health issues,” as well as training on special jury
selection issues pertinent to death penalty cases.’°* By contrast, RCD Southeast does not require
additional training outside of the ten hours required by the qualification standards, although the
office “strive[s] to meet the ABA Guidelines... [,] train[s] on the requirements of the ABA
Guidelines[,] and also regularly subject{s its] efforts to peer-review and critique.”“’ RCD West
responded that it does not provide additional training to its capital defense attorneys.*! Finally,
the VCRRC stated that it seeks to provide additional training to its staff attorneys, either in
house, or, more frequently, by outside experts.“

“5 Va. CODEANN. § 19.2-163.8(A)(vi)-(Vii), (B) (2013).

458 Statutory Authority and Qualifications, Va. INDIGENT DEF. CoMM’N,
http://www. publicdefender.state.va.us/serving.htm (last visited Aug. 2, 2013). When asked what specific issues
must be addressed in the “specialized” training required in the qualification dards, the C: issi

that “[t]he topic must specifically address capital defense litigation.” VIDC Survey Response, supra note 7, at 18.

‘ST Interview with Jae K. Davenport, supra note 170; Statutory Authority and Qualifications, Va. INDIGENT DEF.
Comm’, http://www.publicdefender.state.va.us/serving.htm (last visited Aug. 2, 2013). All attomeys admitted to
the Virginia State Bar are required to complete a minimum of twelve hours of approved continuing legal education
(CLE) every year, which must include at least two hours on legal ethics and professionalism, unless expressly
exempt. MANDATORY CONTINUING LEGAL ED. REG. 102(a) (2011).

VIDC Survey Response, supra note 7, at 18.

RCD Southeast Survey Response, supra note 75, at 21.

460 RCD Central Survey Response, supra note 72, at 7, 17 (italics added).
451 RCD West Survey Response, supra note 94, at 15-16.
482 VCRRC Interview, supra note 26.

459

202

In past years, the VBA’s Capital Defense Workshop, described above, included lectures on a
number of different topics identified in the ABA Guidelines. For example, the 2011 workshop
trained on ethical considerations in the representation of capital clients, death penalty
investigation techniques, penalty phase presentation, intellectual disabilities in capital clients,
updates in state and federal death penalty law, and DNA and other forensic science issues.**°

Because Virginia requires attorneys to attend a specialized training program on representation in
the death penalty cases, which may include training on some of the issues described by the ABA
Guidelines, it is in partial compliance with this portion of Protocol #5.

4. The jurisdiction should ensure that all non-attorneys wishing to be eligible
to participate on defense teams receive continuing professional education
appropriate to their areas of expertise.

The Commonwealth does not require nor provide any training for non-attorney capital defense
team members appropriate to their areas of expertise in death penalty cases. While the
Commission offers training to non-attomey members of criminal defense teams, such as
investigators, this training is not specific to capital case representation.“

Each of the Capital Defenders asserts that one of the most significant problems relating to capital
defense is the lack of training programs available for capital mitigation specialists and
investigators.‘ RCD Central states, for example, that “[nJon attorney support staff needs a
training program,” and “[t]he investigators need more training in more areas”; however, “funds
are limited to nonexistent for outside training””*° In 2011, the RCDs were permitted to send
their capital investigators and mitigation specialists to attend the VBA’s annual Capital Defense
Workshop, which is typically only reserved for capital defense counsel.“*’ When funding
permits, Virginia’s Capital Defenders also may send their investigators and mitigation specialists
to national capital defense trainings, such as Life in the Balance.“

The Assessment Team was unable to determine whether court-appointed mitigation specialists,
investigators, or other ancillary experts providing assistance in capital defense litigation receive
any continuing professional education appropriate to their areas of expertise.

463 Va. BARASS’N, 19TH ANNUAL CAPITAL DEFENSE WORKSHOP AGENDA, Nov. 17-18, 2011 (on file with author).
‘4 Training, VA. INDIGENT DEF. CoMM’N, http://www.publicdefender state, va.us/training.htm (last visited Aug. 2,
2013) (stating the Commission sponsors training conferences for investigators and sentencing advocates); VIDC
Survey Response, supra note 7, at 8 (responding “No.” when asked whether it “provide[s] any additional
training . . . to non-attomey members of the [capital] defense team . . . appropriate to their areas of expertise?”).

465 RCD North Survey Response, supra note 75, at 10;

465 RCD Central Survey Response, supra note 72, at 19, 13.

467 Interview with Doug Ramseur, supra note 109.

468 Id.; Interview with Ed Ungvarsky, supra note 73; 2012 Life in the Balance, NAT’L LEGAL Al & DEFENDER
Ass’N, http://www.nlada.org/Training/Train_Defender/Train_Defender_Balance (last visited Aug. 2, 2013).

203

Conclusion

Based on the foregoing, Virginia is in partial compliance with Protocol #5. A summary of the
Virginia Assessment Team’s findings and recommendations relative to this Protocol are found in
the final section of this Chapter, entitled “Final Conclusions and Recommendations.”

* KK
Final Conclusions and R dations

In any criminal trial, the effective assistance of counsel is essential to the preservation of all
other constitutional rights. In a capital case, however, the quality of counsel can determine
whether a capital defendant or death row inmate will live or die. In Virginia, creation of RCDs,
staffed by attorneys and support staff specially qualified to represent capital defendants at trial,
as well as the continued funding of a non-profit organization providing capital defense
representation during state habeas corpus proceedings, have significantly improved the quality of
representation available to Virginia’s indigents in death penalty cases. Further, the Virginia
Indigent Defense Commission (Commission) oversees numerous aspects of the provision of
defense services in the Commonwealth, including the certification of attorneys providing
representation to Virginia’s indigent capital defendants and death row inmates, as well as the
hiring and monitoring of the Capital Defenders.

Since the establishment of the RCDs, which became fully operational in 2005, there has been a
notable decrease in the rate of death-sentencing in the Commonwealth. Capital trials have
occurred in far fewer cases than in previous years, and fewer death sentences have been imposed
in cases which have gone to trial. For example, there were fifteen capital trials, six of which
resulted in death sentences, between 2005 and 2011.“ By contrast, in the six years leading up
to the implementation of the RCDs, defendants were sentenced to death in thirty-eight of fifty-
two capital trials that took place during that period of time.*” Furthermore, a much greater
number of capital cases have been resolved prior to trial, saving unknown costs to the
Commonwealth.

Virginia’s current delivery of defense services in death penalty cases, however, is not without
problems. Indeed, problems may persist in part because they are shielded by the successes the
Commonwealth has made in the last decade. The Virginia Assessment Team has, therefore,
identified areas in need of additional reform and funding in order to ensure that capital
defendants and death row inmates receive the kind of zealous, effective legal representation
required in death penalty cases.

The provision of high quality legal representation in death penalty cases requires that many of
the duties described throughout this Chapter be undertaken by an entity possessed of an
understanding of the complexity and unique nature of capital case representation. Thus, the
Virginia Assessment Team recommends that the Commission consult with the Regional Capital
Defender offices and the Virginia Capital Representation Resource Center in carrying out the
Recommendations described below. These entities are specially equipped with an understanding

469 See VC3 Capital Sentencing Spreadsheet, supra note 9.
4” See id.

204

of the complexity and unique nature of capital case representation and the standard of care to
which capital defense counsel must adhere.

Provision of Counsel and Qualification Standards in Death Penalty Cases

The ABA Guidelines advise that “jurisdictions that wish to have a death penalty must bear the
full costs of providing such a defense.”“”! The Guidelines accordingly call on governments,
which bear a constitutional duty to provide capital defendants—who “require[] vastly more
resources” than in non-capital representation—with effective defense representation, to establish
systemic structures to ensure necessary resources are available in each capital case. *””

In this regard, Virginia has made extraordinary improvements in the quality of representation
available to indigents in death penalty cases. The Commonwealth should be commended for
establishing the RCDs, guaranteeing the appointment of at least two attorneys at trial and on
direct appeal for indigent defendants, and ensuring appointment of at least one attorney during
state habeas corpus proceedings. The Virginia Assessment Team also applauds the
Commonwealth for establishing minimum qualification standards applicable to capital trial,
appellate, and state habeas counsel.

Nonetheless, areas in need of improvement have been identified. Virginia’s qualification
standards do not fully comport with the ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (ABA Guidelines). The standards focus primarily on
experiential requirements and do not include an assessment of counsel’s skills in relation to death
penalty cases, which the Assessment Team believes is essential to the provision of consistent,
effective capital defense representation. Furthermore, Virginia has not adopted specific
qualification standards for attomeys handling death penalty cases during state clemency
proceedings. Capital trial counsel is, at times, not appointed at the earliest stage of capital
proceedings. Furthermore, while Virginia’s qualification standards require counsel, every two
years, to successfully complete a ten-hour specialized training program on capital defense
representation, Virginia does not require these attorneys to successfully complete training on
each of the areas required by the ABA Guidelines, and direct appeal and state habeas corpus
counsel need no training prior to obtaining initial certification from the Commission. The
competence of privately-retained counsel may also fall far below that provided to fully indigent
capital defendants.

Thus, in order to better ensure that counsel possess the necessary skills required of the complex
and unique demands of a death penalty case, and to guarantee that each capital defendant is
afforded the highest quality legal representation, the Assessment Team recommends that
Virginia

« Guarantee that every capital defendant or death row inmate be appointed a qualified
capital defense team, consisting of two attorneys, a mitigation specialist, and an
investigator, at every stage of the proceedings, including state habeas and clemency;

47. Freedman, supra note 106, at 1102.
* Td. at 1101-03.

205

« Ensure appointment of a defense team at the earliest stage of the proceedings,
including permitting appointment in the general district court; and

e Establish rigorous qualification standards for counsel seeking eligibility to represent
any indigent capital client at any stage of the proceedings, in addition to those
currently required in Virginia, as called for by ABA Guideline 5.1 (found in Protocol
#2). Such standards should not focus primarily on the experience of applicants, but
should also incorporate an assessment of counsel’s relevant skills and commitment to
zealous advocacy.‘ The standards should also ensure that prerequisite training
include, at least, the topics covered in ABA Guideline 8.1 (Protocol #5).

Application and Vetting of Applicants for Certification

The Commission reviews applications for certification to ensure that applicant-attomeys are in
good standing with the Virginia State Bar and possess the requisite training credentials required
of certified counsel in death penalty cases. Additional quality control measures must be
implemented, however, to ensure that every attorney appointed to represent a capital defendant
or death row inmate at any stage of the proceedings possesses needed skills and demonstrates a
commitment to zealous advocacy. At a minimum, Virginia should

e Incorporate objective and subjective measures of qualification evaluation in order to
determine if an applicant-attomey should be included on the list,“ including requiring
applicants to submit

o Information on capital cases in which the attomey has served as defense counsel,
including the names and contact information of the judge, co-counsel, and
prosecuting attorney(s) in the case(s), as well as the outcome of each case;

o Writing samples of legal attorney work product, including analysis of complex
legal issues, as well as copies of written materials filed on behalf of previous
capital (or other) clients in actual cases;

"3 See, eg., LA. PUB. DEFENDER BD. (LPDB), Capital Defense Guidelines (effective May 20, 2010), adopted
pursuant to LA. REV. STAT. ANN, 15:148(f)(10) (requiring LPDB to “{c]reat[e] separate performance standards and
guidelines for attomey performance in capital case representation . . .”). LPDB’s adopted certification standards
“seek to insure . . that every capital defendant” possess at least the requisite skills outlined in Protocol #2, supra
note 162 and accompanying text. LA. Pus. DEFENDER BD., Capital Defense Guidelines § 915 (A)-(B), available at
http:/Ipdb.la.gov/Supporting% 20Practitioners/C apital % 20D efense/txtfiles/pdf/Rule% 20(Capital% 20D efense%20G
uidelines),%20promulgated%20May%2020,%202010.pdf; In the Matter of Adopting a Plan for Review of
Appointed Counsel, Sup. Ct. Maricopa Cty., Order No. 2012-008 (“To be qualified for assignment to capital cases,
the attorney must demonstrate that he or she . . . possesses the requisite qualifications set forth in Guideline 5.1 of
the ABA Guidelines [and that] the attomey has a demonstrated history of practice, and can be expected to continue
to practice, in accordance with the performance and practice standards set forth in Guidelines 10.1 through 10.13 of
the ABA Guidelines.”); OHIO Sup. CT. R. 20.01(A) (requiring that every “attorney representing a capital defendant”
possess the qualifications described in ABA Guideline 5.1).

™ Examples of designation of counsel as capital-certified, as well as monitoring of counsel's performance can be
found at La. Pus. DEFENDER Bp., Capital Defense Guidelines § 915 (F) (“Consideration of Certification
Applications”); In the Matter of Adopting a Plan for Review of Appointed Counsel, Sup. Ct. Maricopa Cty., Order
No. 2012-008 (“Evaluation Process” and “Re-evaluation”); and N.C. GEN. STAT. § 7A-498, App. 2A.2(b)
(delineating required submission by applicant seeking appointment as lead or associate counsel in a capital case).

206

o Contact information of trial judges (or appellate or state habeas judges, depending
on certification sought), defense attorneys, and prosecuting attorneys familiar
with the attorney's work;

o Active complaints pending against the applicant before the Virginia State Bar;

o Information on current and foreseeable caseload; and

o Any other information counsel believes relevant to establish his/her qualifications,
including non-capital and appellate experience, and any extensive training or
research in the field of capital defense.*”°

e Review all contents and declarations made by the applicant and assess whether the
applicant meets the qualification standards set out by ABA Guideline 5.1.

Monitoring of Counsel's Performance

Virginia has not promulgated any standards for performance in death penalty cases, which is in
stark contrast to the performance standards and oversight provided by the Commission in non-
capital cases. While the Commission monitors, to some extent, the performance of attomeys
employed by the RCDs, no entity monitors the performance of all defense counsel to ensure that
the capital client receives high quality legal representation, nor is Virginia able to ensure that
corrective action is taken when complaints about counsel’s performance arise. Thus, Virginia

should

e Promulgate standards of performance for counsel in death penalty cases, analogous to the
guidelines found in ABA Guideline 10, and similar to the Standards of Practice
developed by the Commission for the performance of counsel in non-capital cases. These
criteria should include caseload standards governing acceptable workloads for attorneys
undertaking death penalty representation’” and specific topics on which capital counsel
must be trained prior to appointment in any capital case in conformance with ABA
Guideline 8.1;

e Implement monitoring mechanisms of the performance of certified counsel, like those
described in ABA Guideline 7.1. These mechanisms should include

o Periodic review of the list of certified counsel to ensure that these attomeys
remain capable of providing high quality legal representation;

o Requiring certified counsel to tnderso performance reviews by the Commission
following a course of representation;*

“8 See, e.g., LA. Pus. DEFENDER BD., supra note 474, at § 915 (C) (describing the information that must be
included on an application for certification); In the Matter of Adopting a Plan for Review of Appointed Counsel,
supra note 474.

See, eg., LA. PuB. DEFENDER BD., supra note 474 at § 919 (“Workload”); OHIO R. Sup. Cr.
20(1ID(B )(“Workload of appointed counsel”).

See, e.g., In the Matter of Adopting a Plan for Review of Appointed Counsel, supra note 474 (requiring the
Capital Defense Review Commission to “re-evaluate attomeys at intervals of not more than three years,” and to “re-
evaluate an attomey at any time . . . when there is reason to believe that the attomey has not met or may not meet the
applicable” qualification and performance standards).

See, e.g., LA. PuB. DEFENDER BD., supra note 474 at § 921 (C)(1)-(2) (requiring a briefing from counsel
whenever a capital case has been closed at trial, appellate, state post-conviction, federal post-conviction, or
clemency level and requiring the appointing authority to convene a case review committee “whenever a death
sentence is imposed, affirmed, post-conviction relief is denied or a defendant is executed.”).

207

o Establishment of a regular public procedure for investigating and resolving any
complaints made by judges, clients, attorneys, or others that defense counsel
failed to provide high quality legal representation; and

o Removal of any attorney from the certification list whenever counsel has failed to
represent a client consistent with the ABA Guidelines, subject to the attomney’s
right to object and appeal a decision to remove him/her from the list.*”

Appointment of Counsel

Prior to making any appointment in a capital case, Virginia should require trial courts to consult
with the RCD in order to obtain its recommendation(s) for appointment of a capital defense team
to a case pending before the court, in addition to obtaining information on certified counsel
available for appointment from the Commission.

Provision of Ancillary Services and Experts

Investigators are “indispensable to discovering and developing the facts that must be unearthed
at trial or in post-conviction proceedings,”** and mitigation specialists “possess clinical and
information—gathering skills and training that most lawyers simply do not have.”**! Virginia
should be commended for its efforts to staff each RCD with these professionals to support the
defense. Furthermore, the Assessment Team applauds Virginia for recognizing the necessity of
ex parte requests for expert assistance through its adoption of Virginia Code section 19.2-
264.3:1.3.

Virginia law, however, does not guarantee assignment of a mitigation specialist and investigator
in each capital case, which can result in the wasteful consequence of counsel performing these
important functions. The appointment of experts and ancillary professional services is also left
to the discretion of individual circuit court judges who may select experts based on the cost of
services or prior work for the prosecution. In addition, Virginia has not adopted training
requirements for non-attomey members of the capital defense team, nor does it appear that
Virginia provides adequate funding for effective education and training of its non-attorney
capital defense team members. Finally, courts do not grant funding for expert services, including
experts trained to screen for mental and psychological disorders, to assist death row inmates in
developing or presenting constitutional claims during capital state habeas proceedings.

In order to ensure high quality legal representation for every capital defendant and death row
inmate in the Commonwealth, Virginia should

e Guarantee counsel has access to the assistance of all expert, investigative, and other
ancillary professional services reasonably necessary or appropriate to provide high

479" See, e.g., N.C. R. OF THE COMM’N ON INDIGENT DEFENDER SERVS., Part 2, App. 2A.2(e) (providing that if an
attorney is removed from the capital case appointment roster, the attorney “may make a written request for a review”
of the removal decision to a designated committee of the indigent defense commission.).

489 ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31
Horstra L. REV. 913, 958 (2003).

‘Td. at 959.

4 Va. CODE ANN. § 19.2-264.3:1.3 (2013).

208

quality legal representation at every stage of the proceedings, including state habeas
and clemency proceedings;

e Encourage trial courts to consider defense counsel’s requests for expert and ancillary
support services through ex parte proceedings and amend the Virginia Code to permit
counsel to request mental health professional services through an ex parte proceeding
(Va. Code. § 19.2-264.3:1.3(D)); and

e Ensure at least one member of the defense team is trained to screen capital clients for
mental and psychological disorders.

Funding

Because the quality of representation often suffers when adequate compensation is not available,
Virginia should be commended on its general compensation scheme for the capital defense team
at trial. The Commonwealth has funded four RCDs, each of which employ attomeys,
investigators, and mitigation specialists to provide capital representation at trial and direct
appeal. Trial courts also appear to authorize funding for expert, investigative, mitigation, and
other ancillary services in cases where other court-appointed counsel represents a capital
defendant. Virginia also provides periodic billing in death penalty cases for other court-
appointed counsel, and does not compensate trial counsel via flat fee or lump-sum contracts.

However, Virginia does not ensure funding for the full cost of high quality legal representation,
as defined by ABA Guideline 9.1, for the defense team and outside experts selected by counsel.
It appears, for example, that the compensation rates for assistant RCDs are insufficient to recruit
and retain experienced attorneys with the necessary skills to effectively represent clients facing
the death penalty. The reimbursement rate for court-appointed counsel also differentiates
between in and out-of-court time, which can provide a disincentive for counsel to advocate in the
best interests of the client, which may include accepting a plea offer. The Virginia Supreme
Court’s Office of the Executive Secretary has also dramatically reduced the reimbursement
provided to counsel in some capital cases without explanation, effectively denying payment to
counsel for many hours worked on behalf of a capital client. In some cases, it has authorized
only a flat fee to reimburse counsel for work performed on behalf of a death row inmate on direct
appeal. Finally, as no entity tracks the hourly rates requested by counsel and ultimately
approved for reimbursement, there is no mechanism to determine if compensation levels for
court-appointed counsel are consistent across the Commonwealth or if the rates are
commensurate with similar services performed by retained counsel in the jurisdiction.

With respect to providing funding for expert, investigative, mitigation, and other ancillary
services, trial courts may limit the hours of work that these professionals may perform on behalf
of an indigent capital defendant. Significant court and counsel time can also be diverted to
resolution of funding questions and courts may be reticent to fully fund needed defense services
in cases requiring additional language services and extensive travel. Furthermore, since 1995, no
Virginia court has provided funding for experts, investigators, and mitigation specialists during
state habeas corpus proceedings or clemency proceedings.

209

In order to ensure a sufficient pool of qualified attorneys is available and willing to be appointed
to represent a capital defendant or death row inmate, and to ensure that all counsel are able to
provide high quality legal representation to those facing the death penalty, Virginia should

e Remove the distinction between compensation for in and out-of-court attorney services.
Flat fees should be prohibited and counsel should be compensated for actual time and
service performed;

e Ensure that the compensation rate provided to counsel is reasonable and reflects the
competency of the lawyer’s performance, including providing similar compensation for
trial and appellate capital defense representation;

e Provide funding for compensation of investigative, expert, and other ancillary services
needed to ensure the provision of high quality legal representation during all stages of the
proceedings, including state habeas corpus;

e Provide funding to ensure all capital counsel meet the designated training requirements,
as well as to ensure that non-attorneys wishing to be eligible to participate on defense
teams receive continuing professional education appropriate to their areas of expertise;

e Provide a detailed explanation in cases where counsel’s reimbursement request is reduced
or denied and establish a meaningful right to appeal a denial or reduction of payment; and

e Implement uniform accounting measures of payment of counsel, ancillary, and expert
services in death penalty cases and promote greater transparency regarding the cost of
death penalty cases, including publication of reimbursement rates of appointed counsel
throughout the Commonwealth, as well as fees paid for ancillary and expert services.

Appellate Representation

While Virginia should be commended for ensuring continuity of counsel in death penalty cases
by assigning trial counsel to represent the defendant on direct appeal, this system does not ensure
that a defendant receives high quality legal representation at this stage of the capital case (which
is also the last stage that the defendant has a right to effective counsel). Trial counsel frequently
do not possess the time or special skills required of appellate representation, which requires
thorough review of the trial record anew, as well as extensive brief-writing. This is in contrast to
the appellate representation provided by the Office of the Attorney General on behalf of the
prosecution in any appeals in death penalty cases in Virginia. Furthermore, compensation of
counsel employed by the Attorney General to handle capital appeals is, oftentimes, far greater
than that afforded to attorneys employed by the RCDs who undertake appellate representation.
Thus, Virginia should

e Create a position for an appellate defender within the Regional Capital Defender Office
in Richmond that is specially trained to investigate and present the unique issues raised in
capital appeals, to represent all capital defendants sentenced to death on direct appeal; “®*
and

e In cases where an appellate defender cannot represent the defendant, ensure that
appointed counsel is fully compensated for actual time and services performed.

483 For example Kentucky, Maryland, and Missouri are capital jurisdictions with a specialized unit to handle capital
trials and a separate statewide defender to handle appeals of capital convictions and sentences.

210

CHAPTER SEVEN
THE DIRECT APPEAL AND PROPORTIONALITY REVIEW
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

States provide for at least one level of appeal (“direct review”) in capital cases. In most states,
the direct review process also includes proportionality review, the process through which a death
sentence is compared with sentences imposed on similarly situated defendants to ensure that the
sentence is not disproportionate.! Meaningful comparative proportionality review helps to
ensure that the death penalty is being administered in a rational, non-arbitrary manner; provide a
check on broad prosecutorial discretion; and prevent discrimination from playing a role in the
capital decision-making process.

Meaningful comparative proportionality review can be an important method of protecting against
arbitrariness in capital sentencing. In most capital cases, juries determine the sentence, yet they
do not have the information necessary to evaluate the propriety of that sentence in the case
before them in light of sentences in similar cases.” In the relatively small number of cases in
which the trial judge determines the sentence, proportionality review still is important, as the
judge may be unaware of statewide sentencing practices or be affected by public or political
pressure. Regardless of who determines the sentence, dissimilar results are virtually ensured
without the equalizing force of proportionality review exercised at the state level.

A court conducting proportionality review ought to analyze the similarities and differences
between past decisions and the case before it. By weighing the appropriateness of a death
sentence from a statewide perspective, a reviewing court achieves the important ends of
proportionality review while leaving to local prosecutors and juries the decisions, in the first
instance, of whether the death penalty ought to be sought and whether it ought to be imposed.

Finally, for proportionality review to be truly effective in ensuring the rational, non-arbitrary
application of the death penalty, it must include not only cases in which a death sentence was
imposed but also cases in which the death penalty was sought but not imposed and cases in
which the death penalty could have been but was not sought.*

Because of the role that meaningful comparative proportionality review can play in eliminating
arbitrary and excessive death sentences, states that do not engage in the review, or that do so

t Gregg v. Georgia, 428 U.S. 153, 206 (1976) (opinion of White, J.) (Burger, C.J., & Rehnquist, J., concurring)
(finding that proportionality review “serves as a check against the random or arbitrary imposition of the death
penalty”); see also Pulley v. Harris, 465 U.S. 37, 71 (1984) (Brennan, J., dissenting) (noting that, in 1984, over thirty
states required, either by statute or case law, some form of comparative proportionality review).

Gregg, 428 U.S. at 206 (opinion of White, J.) (Burger, CJ., & Rehnquist, J., concurring).

See, e.g., Walker v. Georgia, 129 S.Ct. 453, 454-55 (2008) (Stevens, J., on the denial of certiorari) (noting that
Georgia’s approach to proportionality review, in which Georgia asserted that the state supreme court compared “‘not
only similar cases in which death was imposed, but similar cases in which death was not imposed’... seemed
judicious because, quite obviously, a significant number of similar cases in which death was not imposed might well
provide the most relevant evidence of arbitrariness in the sentence before the court’) (citing Zant v. Stephens, 462
U.S. 862, 880 n.19 (1983)).

211

only superficially, substantially increase the risk that their capital punishment systems will
function in an arbitrary and discriminatory manner.

212

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW

Virginia statutory law provides that when a defendant is sentenced to death, s/he is entitled to (1)
an automatic review of the death sentence,’ and (2) a direct appeal of the sentence and
conviction.® The Supreme Court of Virginia has exclusive jurisdiction over the automatic review
and the direct appeal of a death sentence,° and the two proceedings may be consolidated into a
single procedure.’ The Court, however, must undertake an automatic review of the death
sentence irrespective of whether the defendant chooses to pursue a direct appeal.® When setting
its docket, the Supreme Court is required to give priority to cases in which the death penalty was
imposed.

A. Automatic Review of the Death Sentence

In all cases in which a defendant is sentenced to death, the Supreme Court of Virginia is
required, by statute, to review the propriety of the death sentence.'” Unlike the right to direct
appeal, automatic review cannot be waived by the defendant, as “the purpose of the [automatic]
review process is to assure the fair and proper application of the death penalty statutes . . . and to
instill public confidence in the administration of justice.”!! If the defendant waives his/her direct
appeal, the Supreme Court of Virginia will order the defendant’s appointed counsel to “file a
brief limited to the issues to be considered under the statutorily mandated review of [the] death
sentence.”!? The Court will then publish an opinion limited to the automatic review issues.

The automatic review statute requires the Court to determine

(1) Whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor; and

(2) Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant. 4

If the Court finds that the death sentence was improper based on one or both of the statutory
considerations, it may “[c]ommute the sentence of death to imprisonment for life” or “[r]emand
to the trial court for a new sentencing proceeding.”

4 Va. Cope ANN. § 17.1-313(A) (2013).
> Va. Cope ANN. § 17.1-406(B) (2013).
® Va. CoDE ANN. §§ 17.1-313(A), 17.1-406(B) (2013).
7 Va. CODE ANN. § 17.1-313(F) (2013).
8 Va. CODE ANN. § 17.1-313(A) (2013) (“A sentence of death, upon the judgment thereon becoming final in the
circuit court, shall be reviewed on the record by the Supreme Court.”).
° Va. Cope ANN. § 17.1-313(G) (2013).
10 Va. CoDE ANN. § 17.1-313(A) (2013).
o Akers v. Commonwealth, 535 S.E.2d 674, 677 (Va. 2000).
Id.

8 See id.

VA. CODE ANN. § 17.1-313(C) (2013).
Va. CODE ANN. § 17.1-313(D)(2)-(3) (2013).

213

1. Influence of Passion, Prejudice, or Other Arbitrary Factor

In the first part of its automatic death sentence review, the Supreme Court of Virginia must
determine “[w]hether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor.”'° In making this determination, the Court examines the
trial record to determine whether the jury “failed to give fair consideration to all the evidence
both in favor and in mitigation of the death sentence, or was otherwise improperly influenced in
favor of imposing the death penalty.’”!”

2. Proportionality

In the second part of its automatic death sentence review, the Supreme Court of Virginia must
determine “[w]hether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.”"® The Court’s
proportionality test is “whether «juries in [Virginia] generally approve the supreme penalty for
comparable or similar crimes.””” The purpose of proportionality review “is to reach a reasoned
judgment regarding what cases justify the imposition of the death penalty.””°

a. Scope of Review of “Similar Cases”

For the purpose of aiding in its proportionality review, Virginia statutory law states that the
Supreme Court “may accumulate the records of all capital felony cases tried within such period
of time as the court may determine.””! The Court must “consider such records as are available as
a guide in determining whether the sentence imposed in the case under review is excessive.”””

Pursuant to this statute, the Supreme Court of Virginia “accumulate[s] the records of capital
murder cases reviewed by [the Supreme] Court, including not only those cases in which the
death penalty was imposed, but also those cases in which the trial court or jury imposed a life
sentence and the defendant petitioned [the Supreme] Court for an appeal.” The Court considers
this same set of cases in conducting its proportionality view.“ Accordingly, the Supreme
Court’s proportionality review will include (1) all capital cases in which a death sentence was

‘6 Va. CODE ANN. § 17.1-313(C)(1) (2013).
17 Elliot v. Commonwealth, 593 S.E.2d 270, 291 (Va. 2004). See also Pruett v. Commonwealth, 351 S.E.2d 1, 12
(Va. 1986) (upholding the defendant’s death sentence because the trial record was “free from any indication that the
jury was motivated by untoward influences in deciding to fix [defendant’s] punishment at death”). If the defendant
waived his/her right to a jury determination of his/her sentence and was sentenced to death by the trial court, the
Supreme Court will consider whether the trial court was influenced by an arbitrary factor. Stout v. Commonwealth,
376 S.E.2d 288, 294 (Va. 1989) (noting that the sentencing court “stated that it considered ‘all the evidence in this
case”” before sentencing the defendant to death).
18 Va. CopE ANN. § 17.1-313(C) (2013).
19 Lewis v. Commonwealth, 593 S.E.2d 220, 226 (Va. 2004) (quoting Wolfe v. Commonwealth, 576 S.E.2d 471,
490 (Va. 2003)).
2° Orbe v. Commonwealth, 519 S.E.2d 808, 817 (Va. 1999).
m2 VA. CODEANN. § 17.1-313(E) (2013).

Id.
23 Bell v. Commonwealth, 563 S.E.2d 695, 719 (Va. 2002).
24 Green v. Commonwealth, 580 S.E.2d 834, 850 (Va. 2003) (noting that the Court’s proportionality review
“includes all capital murder cases presented to this Court for review and is not limited to selected cases”).

214

imposed, as the Supreme C ourt automatically reviews such cases;”° and (2) those capital cases in
which a life sentence was imposed and the defendant, following the denial of his/her appeal by
the Court of A ppeals of Virginia, sought and received discretionary review of his/her case by the
Supreme Court.“ To assist the Court in finding and reviewing similar cases, the Clerk of the
Court maintains an index that includes all capital cases appealed directly to the Supreme Court,
as well those capital cases that are reviewed by the Supreme Court after being reviewed by the
Court of Appeals.””

b. Method of Comparing Similar Cases

The Supreme Court of Virginia has not described a precise methodology for selecting “similar
cases” and comparing them to the case on appeal. The Court, however, has stated that it gives
“special attention to those [cases] in which the underlying felony, the penalty predicate, and the
facts and circumstances surrounding the commission of the crime are fairly comparable” to the
case on appeal.”* Ih addition, the Court frequently selects cases based upon common statutory
aggravating factors.”

B. Direct Appeal

In addition to automatic death sentence Teview, a death-sentenced defendant is entitled to a direct
appeal to the Supreme Court of Virginia.*’ In the direct appeal, the Court will review trial court
errors alleged by the defendant.*! A defendant may, however, waive his/her right to direct
appeal if the waiver is “voluntarily and intelligently” given. a

1. Direct Appeal Procedure

In order to pursue a direct appeal, a death-sentenced defendant must file assignments of error
with the Supreme Court of Virginia within thirty days of the date the trial transcript and record
on appeal are received by the Court.** Within ten days of this filing, the defendant may file a

* Va. CopE ANN. §§ 17.1-313(A), 17.1-406(B) (2013).
6 See VA. CoDE ANN. § 17.1-406(A) (2013) (noting that the Court of Appeals of Virginia has appellate
jurisdiction over “any final conviction in a circuit court of a traffic infraction or a crime, except where a sentence of
death has been imposed”); VA. Sup. CT. R. 5:14-5:16 (describing the procedure for filing an appeal from the Court
of Appeals to the Supreme Court).
27 See J. Lecis. AUDIT & REV. COMM’N OF THE VA. GEN. ASSEMB., REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL
PUNISHMENT 67 (2002), available at http://jlarc.virginia. gov/reports/Rpt274.pdf [hereinafter JLARC REPORT].
Williams v. Commonwealth, 472 S.E.2d 50, 53 (Va. 1996) (quoting Stockton v. Commonwealth, 402 S.E.2d
196, 211 (Va. 1991)).
°° For example, when conducting proportionality review, the Supreme Court of Virginia has considered cases in
which the jury has found both aggravating circumstances. See, e.g., Green v. Commonwealth, 580 S.E.2d 834, 850
(Va. 2003); Lenz v. Commonwealth, 544 S.E.2d 299, 310 (Va. 2001); Vinson v. Commonwealth, 522 S.E.2d 170,
178 (Va. 1999).
Va. CODE ANN. § 17.1-406(B) (2013).
31 See generally Elliot v. Commonwealth, 593 S.E.2d 270 (Va. 2004).
3 Akers v. Commonwealth, 535 S.E.2d 674, 677 (Va. 2000).
For more information on Virginia’s direct appeal procedures, see Chapter One.
34 Va. Sup. CT. R. 5:22(c).

215

“designation of the additional parts of the record that he wishes included as germane to the
review or to the assignments of error.”

Both the defendant and the Commonwealth are permitted “to submit briefs within time limits
imposed by the [Supreme Court] . . . and to present oral argument.”*° The defendant must file
his/her brief within sixty days of the date the trial transcript and record on appeal are received by
the Court.*” The Commonwealth must file his/her brief within 120 days of the same date.®
Briefs for both parties may not exceed the longer of 100 pages or 17,500 words.” The defendant
must file a reply brief, which may not be more than fifty pages or 8,750 words, whichever is
greater, within 140 days of the date the trial transcript and record on appeal are received by the
Court.“° There are no exceptions, except by permission of the Court, to these limitations."

2. Standard of Review on Direct Appeal

On direct appeal, the Supreme Court of Virginia will consider “errors in the trial enumerated by
appeal.” However, the Court will not consider an alleged error “unless an objection was stated
with reasonable certainty at the time of the ruling [by the trial court], except for good cause
shown or to enable [the Supreme] Court to attain the ends of justice.”* “Whether the ends of
justice provision should be applied involves two questions: (1) whether there is error as
contended by the [defendant]; and (2) whether the failure to apply the ends of justice provision
would result in a grave injustice.” Errors properly preserved at trial will be reviewed by the
Court in accordance with the appropriate standard.”

35 Va. Sup. CT. R. 5:22(c).

°° Va. CODE ANN. § 17.1-313(F) (2013) .

7 va. Sup. Cr. R. 5:22(e)(1).

38 Va. Sup. CT. R.5:22(e)(2).

%° va. Sup. CT. R.5:22(e)(1), 5:22(e)(2).

“0 Va. Sup. CT. R. 5:22(e)(3).

“Va. Sup. CT. R. 5:22(e). The limitations on length of the briefs “do not include appendices, the cover page,
table of contents, table of authorities, and certificate.” Id.

“va. CoDE ANN. § 17.1-313(C) (2013).

‘va. Sup. CT.R. 5:25.

se Gheorghiu v. Commonwealth, 701 S.E.2d 407, 413 (Va. 2010) (citing Charles v. Commonwealth, 613 S.E.2d
432, 433 (Va. 2005)).

‘5 Cognizable issues on direct appeal may be limited by Court precedent. See, e.g., Lenz v. Commonwealth, 544
S.E.2d 299, 304 (Va. 2001) (“Claims raising ineffective assistance of counsel must be asserted in a habeas corpus
proceeding and are not cognizable on direct appeal.” (citing Johnson v. Commonwealth, 529 S.E.2d 769, 781 (Va.
2000); Roach v. Commonwealth 468 S.E.2d 98, 105 n.4 (Va. 1996))).

216

Il. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team’s
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
Assessment Team's rec dations for reform.

A. Protocol #1

In order to (1) ensure that the death penalty is being administered in a rational,
non-arbitrary manner, (2) provide a check on broad prosecutorial discretion, and
(3) prevent discrimination from playing a role in the capital decision-making
process, direct appeal courts should engage in meaningful proportionality review
that includes cases in which a death sentence was imposed, cases in which the death
penalty was sought but not imposed, and cases in which the death penalty could
have been but was not sought.

Scope of Virginia’s Proportionality Review

Virginia’s automatic death sentence review statute directs the Supreme Court of Virginia to
determine “[w]hether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.”*° While the statute
requires the Court to consider the “records of all capital felony cases” it has collected when
determining whether a death sentence is disproportionate, the Court has complete discretion
regarding which capital felony records it chooses to collect.” The Court has stated that, in
conducting a proportionality review, it collects and reviews “the records of capital murder cases
reviewed by [the Supreme] Court, including not only those cases in which the death penalty was
imposed, but also those cases in which the trial court or juy imposed a life sentence and the
defendant petitioned [the Supreme] Court for an appeal.”“* Accordingly, the Supreme Court of
Virginia’s proportionality review may include some cases in which a sentence less than death
was imposed.

The Supreme Court’s review, however, excludes many cases where the death penalty was sought
but not imposed, and cases in which the death penalty could have been sought but was not. Only
capital murder cases in which a death sentence is actually imposed are automatically reviewed by
the Supreme Court.”? In cases where a defendant is convicted of capital murder but sentenced to
life in prison—whether because the prosecution did not seek the death penalty, the defendant
was ineligible for the death penalty, or the jury elected to impose a life sentence—the trial court
conviction is appealed to the Court of Appeals of Virginia.” While the Supreme Court of
Virginia may review these cases following disposition by the Court of Appeals, such review is

VA. CODE ANN. § 17.1-313(C)(2) (2013).

Va. CopE ANN. § 17.1-313(E) (2013) (stating that the Court “may accumulate the records of all capital felony
cases tried within such period of time as the court may determine”) (emphasis added).

48 Bell v. Commonwealth, 563 S.E.2d 695, 719 (Va. 2002) (emphasis added); see also Green v. Commonwealth,
580 S.E.2d 834, 850 (Va. 2003).

“See Va. CODE ANN. §§ 17.1-313(A), 17.1-406(B) (2013).

5° Va. Cope ANN. § 17.1-406(A) (2013).

ay

217

discretionary and some cases resulting in life sentences may therefore never reach review by the
Supreme Court of Virginia.*' Thus, while the Supreme Court may compare the death penalty
case to previous cases in which a life sentence was imposed, this comparison will only include
life sentence cases that the Supreme Court itself has reviewed.”

In addition, because the Supreme Court collects only the records of cases in which the defendant
was convicted of capital murder, its proportionality review excludes cases in which the death
penalty could have been sought but was not. The Court’s review will also exclude those cases
where a death penalty-eligible defendant avoided the death penalty through a plea agreement,
which is a particularly large swath of relevant capital cases for comparison.°

By limiting its proportionality review to capital cases it has reviewed, the Supreme Court of
Virginia’s analysis favors cases in which a death sentence has been imposed. A 2002 study on
capital punishment, conducted by the Virginia Joint Legislative Audit and Review Commission,
similarly found that “in 45 percent of all death sentence cases reviewed by the Court since 1977,
the Supreme Court appears to have determined whether the sentences were excessive by
comparing the cases only to other in which a death sentence was imposed.” In the instances
when life and death sentences were reviewed by the Court during proportionality review, the
Court has stated its proportionality review gives “particular emphasis” to cases in which the
death penalty was imposed.”

A review that relies chiefly on cases in which the death penalty was imposed will inevitably
increase the likelihood that a death sentence will be upheld, while potentially ignoring several
factually similar cases that did not warrant a death sentence and providing little safeguard against
arbitrariness in capital sentencing.

Perhaps due to this narrow proportionality analysis, the Supreme Court of Virginia has never
reversed a death sentence on proportionality grounds.®’ In some instances, the Court may not
have considered several factually similar cases because those cases were never appealed to the
Supreme Court. In Jackson v. Commonwealth, for example, the Court reviewed the sentence of
sixteen-year-old Chauncey Jackson, who received the death penalty for a murder during a

5! va. Sup, Cr. R. 5:14-5:16.
52 See Bell, 563 S.E.2d at 719.
See, e.g., SEAN ROSENMERKEL, MATTHEW DuROSE, & DONALD FAROLE, JR., BUREAU OF JUSTICE STATISTICS,
FELONY SENTENCES IN STATE Courts, 2006—STATISTICAL TABLES 24 (2009), available at
http://bjs.ojp.usdoj .gov/content/pub/pdf/fsscO6st.pdf (noting that in 2006, 94% of all felony convictions and 61% of

®! JLARC Report, supra note 27, at 68.

~~ Peterson v. Commonwealth, 302 S.E.2d 520, 528 (Va. 1983) (“[W]e have examined the records in all capital
murder cases reviewed by this Court, with particular emphasis given to those cases in which the death sentences
were based upon the probability that the would be continuing threats to society ....”). See also JLARC
REPORT, supra note 27, at 68.

5° By contrast, from 1989 through 2003, the Florida Supreme Court, for example, reversed thirty-seven death
sentences on proportionality grounds. See Phillip L. Durham, Review in Name Alone: The Rise and Fall of
Comparative Proportionality Review of Capital Sentences by the Supreme Court of Florida, 17 St. THomas L. REV.
299, 311 (2004).

218

robbery.*” While Jackson argued on appeal that the death penalty was a disproportionate
punishment for a sixteen-year-old, the Court upheld the sentence, citing several other capital
murder cases “in which robbery or attempted robbery was the underlying felony and [in which]
the death penalty was based only on the ‘future dangerousness’ predicate.”°*

In a dissenting opinion, however, one Justice argued that Jackson’s death sentence was
disproportionate and noted that “[s]ince 1987, ten 16-year-old offenders have been convicted of
capital murder, and only one defendant, Chauncey J. Jackson, has been sentenced to death.”*®?
The dissent cited five of these cases.® However, because juries imposed life sentences in these
cases, they were appealed to the Court of Appeals of Virginia, and therefore were not included in
the Supreme Court’s proportionality review.” If these cases had been considered in the Court’s
proportionality review, a different outcome might have resulted from the review of Jackson’s
death sentence.

Thoroughness of Virginia’s Proportionality Review

Irrespective of the scope of cases considered in proportionality review, it is also imperative that
the review be thorough or meaningful. The reviewing court should conduct an in-depth analysis
of the case, comparing specific facts about the crime and the defendant to those of other cases to
determine whether a death sentence is warranted. The Supreme Court of Virginia, however, has
generally limited the extent of its proportionality review. Frequently, the Court’s analysis is
restricted to a comparison of other cases based on shared predicate capital felonies or
aggravating circumstances, with little examination of the attendant facts surrounding the crime or
the defendant’s life.°* Given that jurors must find only one of two available aggravating
circumstances beyond a reasonable doubt in order to sentence a defendant to death, a simple

a Jackson v. Commonwealth, 499 S.E.2d 538, 543, 555 (Va. 1998). The Court reviewed Jackson’s sentence
seven years before the U.S. Supreme Court declared the death penalty for persons under age eighteen to be
unconstitutional in Roper v. Simmons, 543 U.S. 551 (2005).

58 Jackson, 499 S.E.2d at 554.

59 Td. at 555 (Hassell, J., dissenting).

50 Id. at 555-56 (Hassell, J., dissenting) (citing Novak v. Commonwealth, 457 S.E.2d 402, 406 (1995); Owens v.
Commonwealth, No. 2259-95-1, 1996 WL 666739 (Va. App. Nov. 19, 1996); Reid v. Commonwealth, No. 1175
95-1, 1996 WL 363568 (Va. App. July 2, 1996); Rea v. Commonwealth, 421 S.E.2d 464, 465 (1992); Tross v.
Commonwealth, 464 S.E.2d 523 (1995)).

See id.

Jackson’s conviction was reversed and he was granted a new trial by the Supreme Court of Virginia in state
habeas proceedings due to lack of jurisdiction. Jackson v. Warden, 529 S.E.2d 587, 587 (2000). Jackson
subsequently pleaded guilty to the murder and was sentenced to life in prison with the possibility of parole.
Matthew Dolan, Seven-Year Murder Case Saga Draws to Close with Guilty Plea, VA. PILOT & LEDGER-STAR, Nov.
29, 2001, at Al.

See, e.g., Porter v. Commonwealth, 661 S.E.2d 415, 448-49 (Va. 2008) (providing a sting citation of capital
murder conviction and death sentences imposed for murder of a law enforcement officer); Lewis v.
Commonwealth, 593 S.E.2d 220, 226 (Va. 2004) (providing a string citation of cases where the death penalty was
based on murder for hire); Winston v. Commonwealth, 604 S.E.2d 21, 54 (Va. 2004) (providing a string citation of
cases where the “killing took place in the commission of a robbery or attempted robbery, and where the death
penalty was given based upon the aggravating factors of vileness and future dangerousness,” along with a string
citation of capital murder c based on the of arobbery where the defendant did not receive the
death penalty); Bell v. Commonwealth, 563 S.E.2d 695, 719 (Va. 2002) (providing a string citation of capital
murder convictions for murder of a law enforcement officer and use of a firearm in the commission of murder).

62

219

comparison of the case at bar to cases in which an identical aggravating circumstance was found
is of little value in preventing the disproportionate imposition of the death penalty. Similar cases
are also often mentioned in a string citation, with no discussion of the circumstances of the
compared cases or the life of the defendant.

In Lewis v. Commonwealth, for instance, the Court upheld the death sentence of Teresa Lewis,
who had conspired with two men to kill her husband and son in order to profit from a life
insurance policy. Lewis argued that her death sentence was disproportionate because both of
her accomplices, who were the actual triggermen, received life sentences at trial. In addition,
Lewis did not have a violent criminal history,’ and her IQ of seventy-two placed her in the
“borderline range of mental retardation.”®® The Supreme Court of Virginia, however, held that
the death sentence was proportionate after citing several other capital cases in which “the death
penalty was based upon murder for hire.”®’ The Court did not compare Lewis’s intelligence,
prior criminal history, or other specific facts to the cited cases.” With respect to the life
sentences received by Lewis’s co-defendants, the Court held that sentences “received by
confederates” were not to be considered in proportionality review.”’ Lewis was executed on
September 23, 2010.”

In other cases, the Court has upheld death sentences on proportionality review for classes of
defendants for whom the death penalty was later deemed unconstitutional cruel and unusual
punishment by the U.S. Supreme Court. For instance, in 2005, the U.S. Supreme Court held in
Roper v. Simmons that it is unconstitutional cruel and unusual punishment to execute persons for
crimes committed before the age of eighteen.” The Court noted that a “national consensus
against the death penalty for juveniles” had developed.” As previously noted in the discussion
of the Jackson case, this consensus appeared to have existed in Virginia as well, as the vast
majority of sixteen-year-old capital murder defendants in Virginia did not receive the death
penalty by 1998.” Prior to Roper, however, the Supreme Court of Virginia upheld the death
sentences of five defendants who were juveniles when they committed the crime.” In two of
these cases, the age of the defendant was not discussed by the Court in its proportionality
review.”’ Three of these five defendants were later executed.”® The Court’s assessment of

See id.

5 Lewis, 593 S.E.2d at 222-25, 229.

8 Id. at 225.

Id.

58 Lewis v. Commonwealth, 593 S.E.2d 220, 221 (Va. 2004).

Id. at 226.

See id.

"Id. at 227.

Virginia executes first woman in nearly 100 years, MSNBC, Sept. 24, 2010,
http://www.msnbc.msn.com/id/39328896/ns/us_news-crime_and_courts/ (last visited Mar. 29, 2013).

a Roper v. Simmons, 543 U.S. 551 (2005).

"Td. at 564.

i Jackson v. Commonwealth, 499 S.E.2d 538, 543, 555-56 (Va. 1998) (Hassell, J., dissenting).

7% Thomas v. Commonwealth, 419 S.E.2d 606, 612, 620-21 (Va. 1992) (upholding the death sentence of a
seventeen-year-old); Wright v. Commonwealth, 427 S.E.2d 379, 383, 394 (Va. 1993) (upholding the death sentence
of a y Id); Roach v. Cc , 468 S.E.2d 98, 113-114 (Va. 1996) (upholding the death
sentence of a seventeen-year-old); Jackson, 499 S.E.2d at 554 (upholding the death sentence of a sixteen-year-old);
ohnson v. Commonwealth, 529 S.E.2d 769 (Va. 2000) (upholding the death sentence of a sixteen-year-old).
"Thomas, 419 S.E.2d at 620-21; Wright, 427 S.E.2d at 394.

220

proportionality in these cases might have been different had it given a more thorough
consideration to the ages of the defendants.

Influence of Passion, Prejudice, or Other Arbitrary Factor

In addition to examining the proportionality of the sentence, the Supreme Court of Virginia also
must determine in its automatic review “[w]hether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor.”” As with proportionality review,
however, the Court’s examination is often limited. The Court will uphold the death sentence
unless evidence in the trial record demonstrates that the death sentence was imposed for an
improper reason."” Even if jurors were presented with inadmissible evidence or improper
argument at trial, the Supreme Court will presume that the jurors ignored it in rendering their
verdict if the trial court gave a “prompt, explicit curative instruction.’

In Yarborough v. Commonwealth, for example, defense counsel stated in the penalty phase
closing argument that “if the defendant were sentenced to life imprisonment, he would remain in
prison for life with ‘[n]o chance of ever seeing the outside world.’”®? In rebuttal, the prosecutor
improperly argued, “[W]e used to have parole eligibility, and then a few years ago the legislature
decided to abolish that.... What [defense counsel] is asking you to do is take a pair of dice and
roll them and hope that the law doesn't change again.”® The prosecutor continued, “I don’t
know what is worse[,] the fear that he gets out{,] or the fear of what he is going to do with
nothing to lose for the rest of his life.”®* However, because the record indicated that the trial
court instructed the jury to disregard the prosecutor’s comments, the Supreme Court of Virginia
held that the death sentence was not improperly imposed.”

Expansive A pplication of Virginia’s Death Penalty

Finally, Virginia has continually expanded the number and type of death penalty-eligible
offenses since reinstatement of the death penalty. In 1975, an offender convicted of first-degree
murder was eligible for the death penalty only if s/he was also found guilty of any one of three
separate predicate offenses.*° By the end of 2011, an offender may be subject to the death
penalty in Virginia if convicted of premeditated murder and one of fifteen predicate offenses.°”
Moreover, the actual number of capital-eligible offenses is greater than fifteen as most, of the
predicate offenses described in the statute contain several separate death-eligible offenses.

7 Juvenile Offenders Executed, by State, 1976-2005, DgATH PENALTY INFO. CTR,
http: //www.deathpenaltyinfo.org/juvenile-offenders-executed-state-1976-2005 (last visited Aug. 19, 2013).
Va. CODE ANN. § 17.1-313(C)(1) (2013).
80 Morva v. Commonwealth, 683 S.E.2d 553, 567 (Va. 2009).
at Yarborough v. Commonwealth, 551 S.E.2d 306, 311 (Va. 2001).
® Id. at 310.
8 Id.
“Id.
8 Id. at 311.
8° Va. CODE ANN. § 18.2-31 (1975) (codifying 1975 Va. Acts, ch. 14, 15). These included (1) murder committed
in conjunction with abduction with the intent to extort money or pecuniary benefit; (2) murder for hire; and (3)
murder by an inmate in a penal institution. Va. CODE ANN. § 18.2-31 (West 1975).
87 See generally VA. CODE ANN. § 18.2-31 (2013).
88 See, eg., VA. CODE ANN. § 18.2-31(4) (2013) (killing during the ission of robbery or robbery)

221

The ever-widening application of the Virginia death penalty makes it more important for the
Supreme Court of Virginia to undertake a comprehensive and thorough proportionality review in
every death penalty case. The Virginia General Assembly’s expansion of the death penalty
demands that proportionality review include an equally broad universe of capital-eligible cases.

Conclusion

The Supreme Court of Virginia’s proportionality review considers prior capital cases that it has
previously reviewed on appeal. This scope of review greatly favors those cases in which the
death penalty was actually imposed, as only cases which result in a death sentence are
automatically reviewed by the Supreme Court. A large number of capital murder cases resulting
in a life sentence are excluded. This review also excludes those death penalty prosecutions
where the jury does not return a death sentence and cases in which the death penalty could have
been sought but was not. Proportionality review, therefore, excludes a particularly large swath
of cases, especially when one considers the expansive nature of Virginia’s death penalty-eligible
offenses. The Court also has frequently engaged in a limited comparison of the reviewed cases
by examining only the crime of conviction and the aggravating factors found by a jury, without
consideration of other important factors such as the circumstances of the offense and the
background of the defendant. Therefore, Virginia is in partial compliance with Protocol #1.

Recommendation

As the highest court in the Commonwealth, the Supreme Court of Virginia is in a unique position
to ensure that a death sentence was justified when compared to other cases. Thus,
proportionality review should include all capital murder convictions reviewed by any appellate
court in Virginia, irrespective of whether it was reviewed by the Court of Appeals or the
Supreme Court of Virginia.®’ The review should also encompass a meaningful comparison to
co-defendants’ or co-participants’ cases, including those cases that resulted in a sentence less
than death.°° Finally, it is imperative for the Court to thoroughly compare the facts of the similar
cases it selects in its proportionality review, including the specific facts surrounding the crime
and the life and mental state of the defendant, in order to produce a robust and accurate analysis

(emphasis added); VA. CODE ANN. § 18.2-31(9) (2013) (killing during the ission, or cl ission, of
a drug transaction, with the purpose of furthering the transaction) (emphasis added); VA. CODE ANN. § 18.2-31(6)
(2013) (killing a state or federal law enforcement officer with the power to make a felony arrest under any state or
federal law, killing a fire marshal or a deputy or assistant fire marshal when such persons have police powers, or
killing an auxiliary police officer or auxiliary deputy sheriff, with “the purpose of interfering with the performance
of his official duties”) (emphasis added).

See, e.g., Jackson v. Commonwealth, 499 S.E.2d 538, 543, 555-56 (Va. 1998) (Hassell, J., dissenting)
(discussing the proportionality of the death sentence by comparing the case at bar to cases reviewed by the Court of
Appeals of Virginia).
°°" The Supreme Courts of Florida and Georgia, by comparison, perform an additional review for culpability in
cases involving codefendants or co-participants. Brooks v. State, 918 So.2d 181, 208 (Fla. 2005) (“In cases where
more than one defendant is involved, the [Florida Supreme] Court performs an additional analysis of relative
culpability guided by the principle that ‘equally culpable co-defendants should be treated alike in capital sentencing
and receive equal punishment.””) (quoting Shere v. Moore, 830 So.2d 56, 60 (Fla. 2002)); Gissendaner v. State. 532
S.E.2d 677, 690 (Ga. 2000) (“When applicable, our ‘proportionality review of death sentences includes special
consideration of the sentences received by co-defendants in the same crime.””) (quoting Allen v. State, 321 S.E.2d
710 (1984)).

222

of the appropriateness of a death sentence in a given case.*! Given that many capital murder
convictions in Virginia result in a sentence less than death, particular emphasis should not be
given to cases that resulted in a death sentence.”

With respect to the many cases in which a death sentence could have been but was not sought
because of a plea agreement, there often is no appeal and thus no official record available for use
in proportionality review. Including these cases in proportionality review is important, given the
number of capital cases resolved through plea agreements. Inclusion of these cases, however, is
not currently practicable and is representative of the need for better, modernized data collection
on capital charging practices in the Commonwealth.

A 2002 report by the Joint Legislative Audit and Review Commission (JLARC) of the Virginia
General Assembly examined capital-eligible homicide cases in Virginia from 1995 to 1999.°°
The Assessment Team echoes JLARC’s comments on the problems with respect to data
collection on Virginia’s death penalty. JLARC noted that its review was “complicated by the
unique data problems associated with this subject,’ and that “[cJurrently, Virginia does not
maintain a centralized database containing information on murder cases that can be prosecuted as
capital cases.”** Indeed, in order to obtain the data necessary to conduct its limited five-year
review, JLARC had to examine files maintained by State Police and the Sentencing Commission,
review indictments for persons arrested for murder, interview local prosecutors, and consult
other sources.” With respect to the more limited class of cases in which juries imposed life
sentences, but the cases were not appealed, JLARC had to match data contained by the Virginia
Sentencing Commission against cases in the Supreme Court of Virginia’s database. S

The Virginia Assessment Team, therefore, recommends that the Commonwealth create a
searchable, publicly available tool on the charging and sentencing of all capital-eligible offenses.
To achieve this end, 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. A sample of a similar tool employed by JLARC to collect such data is found in
the Appendix to this Report.°’ It is imperative that the collection of this data be sanctioned br

the Supreme Court of Virginia to ensure its reliability, trustworthiness, and admissibility.”

See, e.g., Shere, 830 So.2d at 60 (stating that the “[t]he death penalty is reserved for ‘the most aggravated and

unmitigated of most serious crimes . . . .””) (quoting Clark v. State, 609 So.2d 513, 516 (Fla.1992)); Gissendaner v
State, 532 S.E.2d 677, 691 (Ga. 2000) (“[T]he special individual characteristics of an appellant are appropriate for
consideration.”).

2 JLARC Report, supra note 27, at 17 (noting that of the forty-six Virginia cases that resulted in in a capital
murder conviction between 1995 and 1999, twenty-four death sentences were imposed).

x Id. at 19-23.

6 Id. at 71.

JLARC Report, supra note 27, at Appendix G.

%8 See, e.g., In re Proportionality Review Project, 735 A.2d 528 (N.J. 1999) (establishing a standing master of the
New Jersey Supreme Court to oversee determination of the universe of cases for proportionality review and the two
factored test of “frequency analysis” and “precedent-seeking review” to be used by the Court when conducting
proportionality review). Trial court reports, often used by appellate courts in other jurisdictions in conducting
proportionality review is an example of a mechanism Virginia could also implement in order to promote more

223

Other affected stakeholders, including prosecutors, capital defense counsel, and trial courts,
should also be consulted.

Prior study commissions also have made recommendations to improve the collection of data: a
2007 report by the Supreme Court of Virginia recommended that Virginia “[e]quip[] courts of
record with computer assisted transcription capability to produce text transcripts that can be
searched and transmitted electronically and include links to evidence.”*? Ag noted above,
JLARC obtained similar data on capital eligible cases from 1995 to 1999. Notably, Virginia
already has in place some statutory mechanisms to support enforcement of better data
collection.’ For instance, in cases where a defendant has been sentenced to death, Virginia law
states that “the [trial] court shall, before imposing sentence, direct a probation officer of the court
to thoroughly investigate the history of the defendant and any and all other relevant facts, to the
end that the court may be fully advised as to whether the sentence of death is appropriate and
just.” Washington and Lee University School of Law’s Virginia Capital Case Clearinghouse
also makes publicly available data on capital trial outcomes throughout the Commonwealth. !”

Creation of a data collection tool would not only assist the Supreme Court of Virginia in
conducting proportionality review, but would also assist litigants in presenting claims on
proportionality issues to the Court, aid prosecutors in making charging decisions, and provide a
mechanism through which the Commonwealth could determine whether race, geography, or any
other improper factor influences outcomes in capital cases.

Finally, the Assessment T eam notes that a more thorough proportionality review no more usurps
the discretion of local prosecutors and juries in determining capital case outcomes than the
existing review. The U.S. Supreme Court recognized long ago, in Gregg v, Georgia, the
important ends that proportionality review serves.’ Broadening that review to include
presentation and consideration of additional, relevant cases will only strengthen Virginia’s ability
to produce a more robust proportionality review.

thorough proportionality review. See, e.g., Mo. Rev. STaT. 565.035.6 (2013), Mo. Rev. Stat. 565.035.1 (2013)
(requiring the Supreme Court of Missouri to accumulate all records of cases in which a sentence of death or life
without parole was imposed and requiring the trial court to submit to the Supreme Court a report on the capital
case).

°° Sup. CT. OF VA., COMMISSION ON VIRGINIA CouRTS IN THE 21sT CENTURY: To BENEFIT ALL, To EXCLUDE
None 40 (2007), available at http://www. courts. Stale. va.us/courtadmin/aoc/judpln/reports/final_report.pdf. The
Court also d several other tect s that would “increase the access, convenience
and ease of use of the courts for all citizens, and [] zai the quality of justice by increasing the courts’ ability to
determine facts and reach a fair decision.” Id. at 39-40.

100 See Va. CODE ANN. § 17.1-313 (E) (2013) (“The Supreme Court may accumulate the records of all capital
felony cases tried within such period of time as the court may determine. The court shall consider such records as
are available as a guide in determining whether the sentence imposed in the case under review is excessive. Such
records as are accumulated shall be made available to the circuit courts.”); VA. CODE ANN. § 19.2-217.1 (2013)
(“Upon the return by a grand jury of an indictment for capital murder and the arrest of the defendant, the clerk of the
circuit court in which such indictment is retumed shall forthwith file a certified copy of the indictment with the clerk
of the Supreme Court of Virginia. All such indictments shall be maintained in a single place by the clerk of the
Supreme Court, and shall be available to members of the public upon request.”).

‘Ol Va. CODE ANN. § 19.2-264.5 (2013).

12 See generally Virginia Capital Litigation Data, VA. CApmrTaAL CASE CLEARINGHOUSE,
http://www. vc3.org/resources/page.asp?pageid=561 (last visited Mar. 29, 2013).

103" See Gregg v. Georgia, 428 U.S. 153, 198 (1976).

224

CHAPTER EIGHT
STATE HABEAS CORPUS PROCEEDINGS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

The availability of state post-conviction, sometimes known as “state habeas,” and federal habeas
corpus relief through collateral review of state court judgments is an integral part of the capital
punishment review process. Significant percentages of capital convictions and death sentences
have been set aside in such proceedings as a result of ineffective assistance of counsel claims,
claims made possible by the discovery of crucial new evidence, claims based upon prosecutorial
misconduct, claims based on unconstitutional racial discrimination in jury selection, and other
meritorious constitutional bases.

Collateral review is critically important to the fair administration of justice in capital cases.
Because some capital defendants receive inadequate counsel at trial and on direct appeal, and
because it is often impossible to uncover prosecutorial misconduct or other crucial evidence until
after direct appeal, state post-conviction proceedings often provide the first opportunity to
establish meritorious constitutional claims. Moreover, exhaustion and procedural default rules
require the defendant to present such claims in state court before they may be considered in
federal habeas corpus proceedings.

Securing relief on meritorious federal constitutional claims in state post-conviction proceedings
or federal habeas corpus proceedings has become increasingly difficult in recent years because of
more restrictive state procedural mules and practices and more stringent federal standards and
time limits for review of state court judgments. Federal restrictions include a one-year statute of
limitations on federal habeas claims and, in some circumstances, a requirement that federal
courts defer to state court rulings that the Constitution has not been violated, even if the federal
court concludes that the state court’s ruling was erroneous. Federal law also places, absent a
convincing claim of innocence, tight restrictions on evidentiary hearings with respect to facts not
presented in state court—no matter the justification for the omission.’

In addition, decisions by the U.S. Supreme Court and passage of the Antiterrorism and Effective
Death Penalty Act of 1996 have greatly limited the ability of a death row inmate to retum to
federal court a second time. The frequent invocation of the harmless error doctrine also has
limited grants of federal habeas corpus relief.

These limitations on post-conviction relief, as well as the federal government’s defunding of
resource centers for federal habeas proceedings in capital cases, have been justified as necessary
to discourage frivolous claims in federal courts. These changes, however, also have resulted in
an inability of death row inmates to have valid claims heard or reviewed on the merits in federal
court.

State courts and legislatures could alleviate some of the unfaimess these developments have
created by making it easier for state courts to review valid claims of constitutional error on the

‘See 28 U.S.C. §§ 2244, 2254 (2013).

229

merits. Under current collateral review procedures, a “full and fair judicial review” often does
not include reviewing the merits of the inmate’s constitutional claims.

226

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW

Virginia statutory law permits an inmate, following the denial of his/her direct appeal, to
challenge his/her conviction or sentence in a state post-conviction proceeding known as petition
for a writ of habeas corpus ad subjiciendum, or “state habeas.”? In 1995, the Supreme Court of
Virginia was granted * ‘exclusive jurisdiction to consider and award writs of habeas corpus” in
death penalty cases.’ Prior to that year, the Virginia circuit courts possessed original jurisdiction
over state habeas petitions in death penalty cases, which could then be appealed to the Supreme
Court of Virginia.

A. State Habeas Procedure

After the Supreme Court of Virginia affirms a death row inmate’s conviction and death sentence
on direct appeal, the circuit court must appoint state habeas counsel to represent the inmate
within thirty days.° Virginia law requires the inmate to file his/her habeas petition within sixty
days after the U.S. Supreme Court denies his/her petition for a writ of certiorari on direct
appeal.

An additional statutory provision states that “notwithstanding the time restrictions otherwise
applicable to the filing of a petition for a writ of habeas corpus, an indigent prisoner may file
such a petition within 120 days following appointment . . . of counsel to represent him.”’ In
practice, however, there are typically more than 120 days between the appointment of counsel
and the date the habeas petition must he filed.® The inmate’s petition cannot exceed 100 pages or
17,500 words,’ and must contain all allegations “known to petitioner at the time of filing.”!° If
the filing deadline has not passed and the Court ‘has not yet ruled on the merits of the petition, the
inmate may request to file an amended petition.'!

Within thirty days of service of the petition, the Attomey General of Virginia must file a
responsive pleading with the Supreme Court of Virginia.’2 The inmate may then file a reply
within twenty days of the filing of the responsive pleading.

2 See VA. CONST. art XIII, § 16; VA. CODE ANN. § 8.01-654 (2013).
3 Va. CoDE§ 8.01-654(C)(1) (1995); S.B. 969, 1995 Virginia Laws Ch. 503 (Va. 1995).
4 J. Leis. AUDIT & REV. COMM’N, VA. ASSEMB.: REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL PUNISHMENT 88
(2002).
> VA. CODEANN. § 19.2-163.7 (2013).
5 Va. CODE ANN. § 8.01-654.1 (2013). If the U.S. Supreme Court grants the writ of certiorari but then affirms
the sentence, the habeas petition must be filed within sixty days of the U.S. Supreme Court’s decision. Id. If the
inmate does not file a petition for a writ of certiorari to the U.S. Supreme Court, the habeas petition must be filed
within sixty days of “the expiration of the period for filing a timely petition for certiorari.” Id.

Id.
8 See Interview by Mark Pickett & Paula Shapiro with Robert E. Lee, Exec. Dir., Va. Capital Representation
Resource Ctr. (VCRRC) (Apr. 11, 2012) (on file with author) [hereinafter VCRRC Interview].
Va. Sup. CT. R. 5:7A (g). The Court may, in its discretion, grant a motion to extend this limit. Id.
VA. CODE ANN. § 8.01-654(B)(2) (2013).
4 Va. CODE ANN. § 8.01-654.1 (2013).
2 va. Sup. CT. R. 5:7A(c).
‘8 Va. Sup. CT. R. 5:7A(d).

227

The Court may grant or deny the petition without holding an evidentiary hearing, if “the
allegations of illegality of the petitioner’s detention can be fully determined on the basis of
recorded matters.”" The petitioner may request an evidentiary hearing if s/he believes the taking
of additional evidence is necessary.!° The Supreme Court of Virginia may then, in its discretion,
order the circuit court to conduct the hearing.’® The subj ect matter of the hearing must be limited
to the issues enumerated in the Supreme Court’s order.!

The circuit court must “conduct the [evidentiary] hearing within 90 days after the order of the
Supreme Court has been received.”!® At the evidentiary hearing, the petitioner may testify, and
either party may call witnesses or read into evidence affidavits of witnesses.’® If the inmate’s
petition alleges ineffective assistance of counsel, s/he is deemed to have waived attomey-client
privilege “with respect to communications . . . to the extent necessary to permit a full and fair
hearing for the alleged ground.”° The circuit court must “report its findings of fact and
recommend conclusions of law to the Supreme Court within 60 days after the conclusion of the
hearing.” Any objections to these findings must be filed with the Supreme Court within thirty
days after the report is filed.”

The Supreme Court of Virginia will grant a writ of habeas corpus only if the petitioner shows
probable cause that s/he is detained unlawfully. If the Court grants a writ of habeas corpus, it
must “discharge or remand” the inmate, or “admit him to bail.”

B. Types of Claims Reviewable in State Habeas

1. Cognizable Claims Generally

Virginia statutory law provides that state habeas proceedings are the proper forum for an inmate
to challenge the legality of his/her sentence.” The Supreme Court of Virginia has further
explained that only “jurisdictional” issues can be raised in a state habeas petition.”° In practice,
this means that the court will not consider errors that could or should have been raised at trial or
on direct appeal—i.e., errors that are not apparent from the trial transcript or other appellate
records—in state habeas proceedings.” “Non-jurisdictional” claims of trial error, on the other

4 Va. CODE ANN. § 8.01-654(B)(4) (2013).

18 Va. Sup. CT. R. 5:7A(b).

16 Va. CODE ANN. § 8.01-654(C)(1) (2013). The hearing is conducted by the circuit court in which the inmate
was originally sentenced to death. Id.

'7 Va. CODE ANN. § 8.01-654(C)(2) (2013).

'8 Va. CODE ANN. § 8.01-654(C)(3) (2013).

‘Va. CODE ANN. §§ 8.01-660, 8.01-661 (2013).

2° VA. CODE ANN. § 8.01-654(B)(6) (2013).

21 VA. CODE ANN. § 8.01-654(C)(3) (2013).

23 Va. CODE ANN. § 8.01-654 (2013). The petitioner has the burden of proving by a preponderance of the evidence
that his confinement is illegal. Whitlock v. Superintendant of Va. State Penitentiary, 192 S.E.2d 802 (Va. 1972).
Va. CODEANN. § 8.01-662 (2013).

See VA. CODE ANN. § 8.01-654 (2013).

26 See Teleguz v. Warden, 688 S.E.2d 865, 872 (Va. 2010) (citing Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.

228

hand, are only reviewable on direct a appeal and will not be considered by the Supreme Court of
Virginia in state habeas proceedings.” The Supreme Court has also held that claims of actual
innocence cannot be considered in state habeas proceedings.” Virginia has, however, enggted
separate statutory procedures for an inmate to prove his/her i innocence through DNA testing?
provided the inmate did not plead guilty at trial, through other means.”

Finally, absent “‘a new constitutional mandate or change in the law,” second or successive habeas
petitions are prohibited.*

2. Ineffective Assistance of Counsel

Claims of ineffective assistance of trial and appellate counsel are frequently raised in state
habeas petitions.°? The Supreme Court of Virginia has adopted the standard for evaluating
ineffective assistance of counsel claims first established by the U.S. Supreme Court in Strickland
v. Washington. In applying this standard, the Court has held that the inmate must (1) “show
that ‘counsel’s representation fell below an objective standard of reasonableness’” and (2)
establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” In order “[{t]o prove that counsel’s
conduct fell outside the range of reasonable professional assistance, a petitioner must overcome
the presumption that under the particular circumstances of the case, the challenged actions may
be considered sound trial strategy.”*°

8 See Teleguz v. Warden, 688 S.E.2d 865, 872 (Va. 2010) (citing Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.
1974)).

Lovitt v. Warden, 585 S.E.2d 801, 827 (Va. 2003) (declining to consider death row inmate’s innocence claim,
stating that his guilt was determined at trial).

Va. CODE ANN. § 19.2-327.1(A) (2013).

VA. CODEANN. § 19.2-327.10 (2013) (establishing a writ of actual innocence based on nonbiological evidence).
2 Va. CODEANN. § 8.01-663 (2013).

See, e.g., Teleguz, 688 S.E.2d 865 (enumerating several ineffective assistance of counsel claims).

a Yarbrough v. Warden, 609 S.E.2d 30, 38 (Va. 2005) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

35 Td. at 37-38 (citing Strickland, 466 U.S. 668).

3 Id. at 37 (citing Strickland, 466 U.S. at 689).

229

II. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the state assessment team in its
evaluation of its state’s death penalty system. Each Protocol is followed by the Assessment
Team's analysis of the Commonwealth's compliance with the Protocol and, where appropriate,
the Asses: Team's rec dation(s) for reform.

A. Protocol #1

All post-conviction proceedings at the trial court level should be conducted in a
manner designed to permit ad and judicial ideration of all
claims. Trial courts should not expedite post-conviction proceedings unfairly; if
necessary, courts should stay executions to permit full and deliberate consideration
of claims. Courts should exercise ind d in deciding cases, making
findings of fact and conclusions of law only after fully and carefully considering the
evidence and the applicable law.

The analysis of this Protocol will consider state habeas proceedings as they are conducted before
the Supreme Court of Virginia, as all state habeas petitions in Virginia death penalty cases are
filed directly with this court.°’ As described below, Virginia falls far short from ensuring
adequate presentation and consideration of claims raised during collateral proceedings.

Insufficient Time and Space to Adequately Present State Habeas Claims

Virginia law places strict filing deadlines on state habeas petitions in death penalty cases. After
an inmate’s death sentence is affirmed on direct appeal by the Supreme Court of Virginia, the
circuit court must appoint counsel to represent the inmate within thirty days.°* In practice,
however, attorneys from the Virginia Capital Representation Resource Center, who represent the
vast majority of Virginia’s death row inmates in state and federal habeas proceedings, begin
working on an inmate’s case as soon as his/her death sentence is affirmed on direct appeal.”°
The death row inmate must then file his/her state habeas petition “within sixty days after the
earliest of” the following:

(1) Denial by the [U.S.] Supreme Court of a petition for a writ of certiorari
[following] the judgment of the Supreme Court of Virginia on direct appeal;
A decision by the [U.S.] Supreme Court affirming imposition of the sentence
of death when such decision is in a case resulting from a granted writ of
certiorari to the judgment of the Supreme Court of Virginia on direct appeal;
or

(3) The expiration of the period for filing a timely petition for certiorari [with

the U.S. Supreme Court] without a petition being filed.”

(2

37 Va. CODEANN. § 8.01-654(C)(1) (2013).
8 Va. CODE ANN. § 19.2-163.7 (2013).

3° VCRRC Interview, supra note 8.

‘0 Va. CODEANN. § 8.01-654.1 (2013).

230

These deadlines afford an inmate limited time to investigate and prepare his/her state habeas
petition. If the inmate chooses not to file a petition for a writ of certiorari with the U.S. Supreme
Court, his/her attorney will have a maximum of 150 days from the date the inmate’s direct
appeal is denied in which to prepare and file the state habeas petition.“ On the other hand, if the
inmate chooses to file a petition for a writ of certiorari, s/he will have, at most, eight to eleven
months before the state habeas petition is due, depending on when the U.S. Supreme Court
denies the certiorari petition.’”

Post-conviction claims in capital cases often include factual and research-intensive issues, such
as claims of ineffective assistance counsel and prosecutorial misconduct, which are not readily
apparent from a review of the trial record and take significant time to fully prepare. In Virginia,
the process of preparing a habeas petition is especially challenging because discovery is not
permitted to assist inmates in development of their claims, nor is funding for expert assistance in
state habeas proceedings provided. Thus, habeas counsel must complete their work and uncover
any claims of constitutional error with limited resources.™ Virginia’s limited state habeas
timeframe also may not provide habeas counsel adequate time to prepare a complete, fully-
developed state habeas petition. Notably, other capital jurisdictions, including states bordering
Virginia and several states previously assessed by the ABA Death Penalty Due Process Review
Project, provide death row inmates with a significantly longer period, or do not impose a specific
deadline at all, in which to file for post-conviction relief in a death penalty case.

“The inmate has ninety days from the date his direct is appeal is denied before the time period for petitioning the

U.S. Supreme Court for a writ of certiorari expires, followed by the sixty days to file his/her state habeas petition.
28 U.S.C. § 1257 (2013). See also Va. Capital Representation Resource Ctr. (VCRRC) Survey Response, provided
by Robert E. Lee, Exec. Dir., VCRRC, to Paula Shapiro, at 2-3 (Apr. 5, 2012) (on file with author) [hereinafter
VCRRC Survey Response].

“2 VCRRC Interview, supra note 8.

‘3 Fora discussion of discovery and access to experts in Virginia state habeas cases, see Protocol #2 and Protocol
#8, respectively.

“ALA. R. CRM. P. 32.2(c) (providing that an Alabama death row inmate must file his/her post-conviction
petition within one year after the Court of Criminal Appeals issues the certificate of judgment affirming his/her
conviction); FLA. R. CRIM. P. 3.851(d)(1) (stating that a death row inmate must file for post-conviction relief within
one year of the disposition of his/her petition for writ of certiorari to the U.S. Supreme Court); 0.C.G.A. § 9-14-
42(c) (2013) (providing no set time limit for Georgia death row inmates to file for post-conviction relief); IND. R. OF
P. FOR PosT-CONVICTION REMEDIES 1, § 1(a) (stating that Indiana inmates may file for post-conviction relief “at any
time.”); Ky. R. CRIM. P. 11.42(10) (providing Kentucky death row inmates three years from the date the judgment
becomes final to file for post-conviction relief); MD. CRIM. PROC. CODE § 7-201(a)-(b) (2013) (providing that
Maryland death row inmates must file their post-conviction petition within 210 days after the disposition of his/her
petition for writ of certiorari to the U.S. Supreme Court on direct appeal or within 210 days after the expiration of
the time for which to seek review by the U.S. Supreme Court, if no writ of certiorari is filed, with an extension
permitted for good cause), n.b., Maryland repealed its statutes related to the death penalty in 2013.; N.C. GEN. STAT.
§ 15A-1415(a) (2013) (providing that a North Carolina death row inmate’s post-conviction motion must be filed
within 120 days after the disposition of his/her petition for writ of certiorari to the U.S. Supreme Court on direct
appeal); 42 PA. CoNs. STAT. § 9545(b)(1) (2013); PA. R. CRIM. P. 901(A) (stating that Pennsylvania death row
inmates must file their post-conviction motions within one year of final judgment on direct appeal); TENN. CODE
ANN. § 40-30-102(a) (2013) (providing a death row inmate with one year following the disposition of his/her direct
appeal to file for post-conviction relief). Federal law also grants petitioners one year to file a federal habeas petition
from the date the direct appeal is final, which will be tolled while the state habeas petition is pending. 28 U.S.C.
2244(d)(1)-(2) (2013).

231

Virginia capital habeas petitioners are also subject to 100-page and 17,500 word limitations on
their filings, even though petitions must contain all allegations known to the petitioner at the time
of filing.” As described by the ABA Guidelines, state habeas counsel “should seek to litigate all
issues, whether or not previously presented, that are arguably meritorious under standards
applicable to high quality capital defense representation.”*° As a result of the limitations placed
on Virginia petitioners, habeas counsel may instead have to curtail or even omit inclusion of
claims of constitutional defect, regardless of the significance or viability of the claims.*” Other
jurisdictions—including those with a higher volume of capital cases than Virginia—do not
impose such limitations.”®

Finally, the limitations described above can increase the likelihood of procedural default by
Virginia capital petitioners in federal habeas proceedings. Virginia petitioners will be subject to
procedural default and preclusion of federal courts’ ability to review their claims of
constitutional error when these petitioners have failed to adequately develop and preserve those
claims due to inadequate time, as well as page and word limitations, imposed during the state
proceedings.’®

Lack of Evidentiary Hearings

Virginia statutory law provides that the Supreme Court of Virginia may, in its discretion, order
the circuit court to conduct an evidentiary hearing in a capital state habeas case.°° The subject

48 Va. CODE ANN. § 8.01-654(B)(2) (2013) (requiring the petition to “contain all allegations the facts of which are
known to petitioner at the time of filing’); VA. Sup. CT. R. 5:7A(g) (describing page and character limitations
imposed in habeas corpus petitions filed in death penalty cases). Until 2010, this page limitation was set at fifty
pages. VA. Sup. CT. R. 5:7A(g) (2006); Amendments to Rules of the Supreme Court of Virginia, VA.’s JUDICIAL
Sys., http://www.courts.state.va.us/courts/scv/amend.html (last visited Mar. 13, 2013). Before 2010, capital habeas
counsel’s requests for page extensions were frequently denied. Email from Robert E. Lee, Exec. Dir., Va. Capital
Representation Res. Ctr. (VCRRC) to Sarah Turberville (Mar. 13, 2013) (on file with author) [hereinafter VCRRC
Email]. Since the increase of the page limit to 100 pages, VCRRC has requested an extension in only one case in
which it requested an extension to file a 150-page brief and was granted an extension to 120 pages. Id. (describing
the Alfred Prieto case).

‘6 ABA, ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31
HorstrAa L. REV. 913, 1079 (2003) (Guideline 10.15.1(C)).

‘7 This issue was particularly problematic when capital habeas petitioners were limited to only fifty pages. In the
Justin Wolfe case, for example, the VCRRC reports that the initial state habeas petition was 149 pages and had to be
reduced to fifty pages, resulting in omission of several claims. VCRRC Email, supra note 45. VCRRC further
notes that the fifty-page limitation resulted in claims being “pled more thinly with facts, law, or background/context
eliminated. In some instances this has been a tortured exercise. In most instances, it has consumed significant time
to just whittle down an argument to squeeze into the page limits. This is distinguished from editing that makes the
brief more efficient and well-written.” Id.

For example, Texas, which has executed more death row inmates than any other capital jurisdiction in the
United States, does not impose any page or character limitation on state habeas corpus applications in death penalty
cases. See TEX. R. CRIM. P. 11.071.

“9 VCRRC Email, supra note 45 (noting that when the limitation was fifty pages, habeas counsel included the
claims omitted from the state petitions due to the page limitation in the federal petition, “but they were always
deemed to be defaulted”). For further discussion on the impact of Virginia’s procedural default rules, see Protocol
#6, below.

50 VA. CODE ANN. § 8.01-654(C)(1) (2013). The hearing is conducted by the circuit court in which the inmate
was originally sentenced to death. Id.

232

matter of the hearing must be limited to the issues enumerated in the Supreme Court’s order.*!
The circuit court must “conduct the hearing within 90 days after the order of the Supreme Court
has been received,” and must “report its findings of fact and recommend conclusions of law to
the Supreme Court within 60 days after the conclusion of the hearing.”*” Objections to these
findings must be filed with the Supreme Court within thirty days after the report is filed.°

In practice, however, evidentiary hearings have rarely been granted, and the Virginia statute does
not provide guidance as to when an evidentiary hearing should be granted. Since the Supreme
Court of Virginia gained exclusive jurisdiction over capital habeas cases in 1995, it has granted
evidentiary hearings in only five cases, a small fraction of the total number of capital habeas
petitions it has reviewed." The Court did not explain why it ordered hearings in only these
cases, nor does there appear to be a common issue that distinguishes these five cases from the
cases in which hearings were not granted.°° In two of the cases, the evidentiary hearing was
limited to the issue of whether trial counsel were ineffective for failing to investigate mitigating
evidence;° however, this claim is frequently raised in capital habeas cases. The Court ordered
more expansive hearings in the other three cases.*” In four of the five cases, the Court dismissed
the habeas petition following the hearing.

Trial courts are accustomed to resolving factual disputes through evidentiary hearings. As
discussed, many claims that are commonly presented in state habeas proceedings involve
complex factual considerations that typically require the court to consider evidence that is not in
the trial record and that cannot be fully developed in the absence of an evidentiary hearing, such
as claims of ineffective assistance of counsel and prosecutorial misconduct. With respect to
ineffective assistance of counsel claims, the U.S. Supreme Court has held that trial counsel in a
capital case have a duty to fully investigate mitigating evidence related to their client’s social
history, including evidence of childhood abuse. For this reason, it is especially important for
trial courts in habeas cases to carefully consider allegations of inadequate mitigation

VA. CODE ANN. § 8.01-654(C)(2) (2013).

Va. CODE ANN. § 8.01-654(C)(3) (2013).

Id.

Lewis v. Warden, 645 S.E.2d 492, 495 (Va. 2007) (granting evidentiary hearing “limited to claims alleging
counsel’s failure to investigate and present mitigation evidence”); Yarbrough v. Warden, 609 S.E.2d 30, 32 (Va.
2005) (granting evidentiary hearing on allegation that trial counsel was ineffective for failing to investigate
mitigating evidence); Lovitt v. Warden, 585 S.E.2d 801, 805 (Va. 2003) (granting evidentiary hearing on all issues
raised in the petition); Lenz v. Warden, 579 S.E.2d 194, 195 (Va. 2003) (granting evidentiary hearing “limited to
certain issues”); Hedrick v. Warden, 570 S.E.2d 840, 862 (Va. 2002) (granting evidentiary hearing on claim of
ineffective assistance of counsel). See also VCRRC Interview, supra note 8. According to the VCRRC, since July
1, 1995, every one of the approximately one hundred state habeas petitioners has requested an evidentiary hearing.
See VCRRC Email, supra note 45.

55 Similarly, in some cases in which no evidentiary hearing was ordered, the Court has denied the inmate’s request
for a hearing without explanation in its order dismissing the habeas petition. See, e.g., Juniper v. Warden, 707
S.E.2d 290, 311 (Va. 2011); Teleguz v. Warden, 688 S.E.2d 865, 879 (Va. 2010).

5° Lewis, 645 S.E.2d at 495; Yarbrough, 609 S.E.2d at 32.

57 Lovitt, 585 S.E.2d at 805 (Va. 2003); Lenz, 579 S.E.2d at 195; Hedrick, 570 S.E.2d at 862.

58 In Lenz, the Supreme Court of Virginia granted the inmate a new sentencing hearing because “he was denied
effective assistance of counsel because trial counsel failed to object to” a verdict form that “failed to inform the jury
that it could sentence petitioner to life imprisonment even if the jury found petitioner guilty of both aggravating
factors beyond a reasonable doubt.” Lenz, 579 S.E.2d at 196, 199.

59 Wiggins v. Smith, 539 U.S. 510, 535-36 (2003).

233

investigation. Such claims are best considered following an evidentiary hearing, in which the
mitigation witnesses can testify and the court can more accurately assess the extent of the
allegations and the credibility of the witnesses.

In Virginia, however, factual disputes in state habeas proceedings appear to be resolved based on
the Supreme Court’s review of affidavits submitted by the parties. In Elliot v. Warden, a death
row inmate alleged that the prosecution had failed to disclose the exculpatory statements of a
group of eyewitnesses, who allegedly saw someone other than the defendant flee the scene of the
murder.®! The Court, however, found that “[tJhe record, including affidavits by the [prosecutors]
involved in the case, demonstrates that neither the police nor [the prosecutors] had any
knowledge of any exculpatory statements made by the” eyewitnesses. The Court provided
little explanation for this finding.“ By contrast, the Court questioned the accuracy of the
eyewitness statements in the affidavits provided by Elliot as based on “hearsay information.”™

In another case, Juniper v. Warden, the death row petitioner claimed that the prosecution failed
to disclose that it had threatened to charge a witness with capital murder if he did not testify
against the defendant. The petitioner alleged that after the witness “invoked his Fifth
Amendment right [to silence] and refused to testify, [the witness] was removed from the
courtroom and the prosecutor threatened [him] by telling him that if he did ‘not testify as
instructed’ he would be charged with capital murder and would face the death penalty.”* The
Court rejected this allegation without ordering an evidentiary hearing.®’ Instead, the Court based
its findings on “the trial transcript and the affidavits of the prosecutor and the detective.” The
Court did not explain its rationale for adopting the factual claims in the police and prosecutor
affidavits without holding a hearing. The accuracy of these statements would have been more
fairly assessed in an evidentiary hearing, during which witnesses must testify in court and be
subject to cross examination.

By making findings of fact and conclusions of law without the benefit of an evidentiary hearing,
and instead through review of affidavits, the Court prevents adequate development of habeas
claims and limits its own ability to accurately assess the claims presented during capital habeas
proceedings.® As such, cognizable claims may not be uncovered until federal habeas
proceedings, if at all.

In the Justin Wolfe case, for instance, the Supreme Court of Virginia refused to order an
evidentiary hearing and denied Wolfe’s habeas petition, despite evidence of prosecutorial
misconduct that would eventually lead a federal court to vacate Wolfe’s conviction and death

50 See, e.g., Juniper, 707 S.E.2d at 297; Teleguz, 688 S.E.2d at 865.
®! Elliott v. Warden, 652 S.E.2d 465, 471 (Va. 2007).

6 Juniper, 707 S.E.2d at 297.
Id.

Id.

8 Id.

The Supreme Court of Virginia also places strict limits on the types of claims that are reviewable in state habeas
proceedings. See supra Protocol #6 and accompanying text.

234

sentence.”? At trial, Wolfe, a marijuana dealer, was convicted and sentenced to death for
allegedly hiring an acquaintance, Owen Barber, to murder another marijuana dealer, Daniel
Petrole, to whom Wolfe owed approximately $60,000.” Barber, “the prosecution’s key witness
in Wolfe’s capital trial and the only witness to provide any direct evidence” of Wolfe’s
involvement, testified against Wolfe in exchange for immunity from the death penalty.”

In his state habeas petition, Wolfe argued that the prosecution had violated its duty to disclose
evidence favorable to the defendant as required by the U.S. Supreme Court’s decision in Brady v.
Maryland.”* Specifically, “Wolfe . . . alleged that the prosecution had failed to disclose multiple
deals it had made with its witnesses, and that certain of those witnesses got materially better
deals from the prosecutors than had been represented to Wolfe and his counsel during the trial
proceedings.””* Wolfe also alleged that the prosecution withheld statements from a witness who
“told [the prosecution] that Barber had confessed [to his roommate, Jason Coleman,] that he
acted alone in the murder.”” He further claimed that the prosecution withheld police notes and
other materials indicating that Barber’s statements to police were inconsistent with his in-court
testimony.”

In 2005, the Supreme Court of Virginia denied Wolfe’s habeas petition without ordering an
evidentiary hearing.”’ The Court’s order devoted two paragraphs to Wolfe’s Brady claims,
dismissing them as “conclusional” and “speculative.”

In subsequent federal habeas proceedings in which the district court held an evidentiary hearing,
however, several Brady violations were revealed.’ The federal district court concluded that the
prosecution had failed to disclose that it had arranged joint meetings with witnesses to correct
inconsistencies in their testimony.®° The prosecution also withheld a detective’s report of an
interview with Barber, “during which [the detective] implicated Wolfe as being involved in the
murder before Barber mentioned his involvement.” In addition, “[p]rosecutors withheld
evidence of Barber’s personal dealings with the victim, including a claim that Barber owed
Petrole money, a claim that Petrole had a hit out on Barber, and a claim that Barber and Petrole
had recently associated with each other socially." “[E]vidence indicating that Barber told his
roommate, Jason Coleman, that he acted alone on the night of Petrole’s murder” also was
suppressed.°? Barber himself testified in the hearing he acted alone when he committed the
murder, and that he had testified against Wolfe in the original trial to avoid the death penalty.™

70 Wolfe v. Johnson, 565 F.3d 140, 150 (4th Cir. 2009).

Id. at 145.

. at 144, 144 n.1.

. at 149-50 (citing Brady v. Maryland, 373 U.S. 83 (1963)).
. at 149,

. at 150.

BSS AS

8 Id. at 27-28.

79 Wolfe v. Clarke, 819 F. Supp. 2d 538, 551-65 (E.D. Va. 2011).

80 Id. at 547.

8! Td.at 548,

Id. at 548-49,

83 Id. at 554.

51 Td. at 548 n.9. The court found several other Brady violations, as well. See id. at 551-65.

235

In 2011, the federal district court vacated Wolfe’s conviction and death sentence, finding that the
prosecution’s failure to disclose exculpatory evidence and use of Barber’s false testimony
violated Wolfe’s constitutional right to due process." Had the Supreme Court of Virginia
ordered an evidentiary hearing to fully explore Wolfe’s Brady claims, these errors could have
been corrected much sooner. While the exculpatory evidence was eventually revealed, Virginia
should not continue to rely on federal courts to correct constitutional errors in state death penalty
cases, especially when there is evidence that the inmate may be innocent. When there are
legitimate factual disputes, it is the best practice to hold an evidentiary hearing, to ensure that all
claims and allegations are fully and carefully scrutinized.*°

Execution Dates Set Prior to Initiation or Completion of Federal Habeas Proceedings

The convicting trial court sets the execution date of a death row inmate in Virginia.®” Virginia
statutory law does not require the trial court to set an execution date until “the Supreme Court of
Virginia has denied habeas corpus relief’ to the inmate.®® While the trial court may set an
execution date “under circumstances other than those specified” in the statute,®’ no Virginia
court has scheduled an execution before an inmate’s state habeas petition was denied.*°

However, once an inmate’s state habeas petition has been denied, Virginia law requires an
execution date to be scheduled if requested by the Attorney General or “the attorney for the
Commonwealth.”*! This requirement significantly reduces the amount of time an inmate is
permitted to research and prepare his/her federal habeas petition, and denies Virginia death row
inmates the process they would otherwise be entitled to in federal court? Ordinarily, under
federal statutory law, death row inmates are granted one year to file a federal habeas petition
from the date the direct appeal is final.°? This one-year statute of limitations is tolled while the
inmate’s state habeas petition is pending.

85 Wolfe v. Clarke, 819 F. Supp. 2d 538, 574 (E.D. Va. 2011). The U.S. Court of Appeals for the Fourth Circuit
subsequently affirmed the district court’s order. Wolfe v. Clarke, 691 F.3d 410, 426 (4th Cir. 2012). After this
decision, however, the prosecution announced plans to retry Wolfe for the murder. Bonnie Hobbs, No Bail for
Wolfe; He'll Be Retried in October By Fairfax County's Head Prosecutor, CENTRE VIEW (Chantilly, Va.), Sept. 20,
2012.
85 See, e.g., Hash v. Johnson, 845 F. Supp. 2d 711, 720 n.1 (W.D. Va. 2012) (describing an evidentiary hearing in
Hash’s state habeas proceedings and characterizing the Supreme Court of Virginia as having “carefully reviewed the
[habeas trial court] record” in 2009, and stating that the federal court has consequently “borrowed heavily from [the
Supreme Court of Virginia’s] cogent fact section.”). Hash, who was fifteen at the time of the offense, was convicted
of capital murder at his original trial in 2001 and was sentenced to life imprisonment; thus, his case did not fall
under Virginia’s more restrictive rules governing state habeas proceedings in death penalty cases. Id. at 715. In
2012, the federal district court reviewed Hash’s case following state habeas proceedings and “ultimately conclude[d]
that the Virginia Supreme Court’s legal conclusions were incorrect.” Id. at 711 n.1.
* Va, CODEANN, § 53.1-232.1 (2013).
Id.
Id.
VCRRC Survey Response, supra note 41, at 7.
*! Va. CODEANN, § 53.1-232.1 (2013).
The U.S. Court of Appeals for the Fourth Circuit has held that this requirement does not violate a Virginia death
row inmate’s right to equal protection. Sheppard v. Early, 168 F.3d 689, 693 (4th Cir. 1999).

28 U.S.C. § 2244(d)(1) (2012).
28 U.S.C. § 2244(d)(2) (2012).

236

Virginia’s statute, however, requires the trial court to hold a hearing “within ten days after
receiving the written notice from the Attorney General or the attorney for the Commonwealth”
that the death row inmate’s state habeas petition has been denied.®° The trial court must then
schedule an execution date “no later than sixty days after the date of” the hearing.°° Once the
execution date is set, federal statutory law permits the inmate to obtain a stay of execution in
federal court, but the stay “shall terminate no later than 90 days after [federal habeas] counsel is
appointed or the application for appointment of counsel” is denied.”” Thus, irrespective of the
actual time remaining to file the federal habeas petition under federal law, the inmate must file
his/her federal habeas petition within ninety days, or another execution date will be set.°

As with state habeas petitions, the research involved in the preparation of a federal habeas
petition is arduous and the claims are often factually intensive. By shortening the period of time
available to prepare and file a petition for habeas corpus in federal court, Virginia further
increases the likelihood that claims will not be litigated or adequately presented. This practice is
particularly troubling because it provides Virginia death row inmates with less time to prepare
federal habeas petitions than is provided to Virginia inmates not sentenced to death. Virginia
inmates who are not sentenced to death receive a full year to file their petitions in federal court,
as the Commonwealth cannot set an execution date to reduce the length of time available to the
inmate to seek federal relief.°° Thus, death row inmates, who typically have the most complex
federal habeas claims, have the least amount of time to prepare their petitions.

The Virginia statute also requires an execution date to be set after “the United States Court of
Appeals has affirmed the denial of federal habeas corpus relief,” or the U.S. Supreme Court “has
issued a final order after granting a stay in order to dispose of the petition for a writ of certiorari
to review the judgment of the United States Court of Appeals.”!°° This reduces the time
normally available to pursue a writ of certiorari from the U.S. Supreme Court.'" Furthermore,
this practice may also limit an inmate’s time to file a successive federal habeas petition if new
evidence or legal claims arise in his/her case.‘

Conclusion
Virginia provides death row inmates with a right to post-conviction review through state habeas

proceedings. However, several aspects of this system limit a death row inmate’s ability to
adequately research and present claims of constitutional error. In most respects, the state habeas

® Va. CODEANN. § 53.1-232.1 (2013).
Id.

* 28 U.S.C. § 2251(a)(3) (2013).

See VA. CODE ANN. § 53.1-232.1 (2013). See also VCRRC Survey Response, supra note 41, at 7.

28 U.S.C. § 2244(d)(1) (2012) (“A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of State court.”).

100 'Va. CODE ANN. § 53.1-232.1 (2013).

101 Sheppard v. Early, 168 F.3d 689, 691-92 (4th Cir. 1999).

12 By requiring execution dates to be set so frequently, the amount of time between an inmate’s death sentence and
execution is greatly reduced. Virginia inmates spend approximately seven years on death row before they are
executed, the least amount of time any death penalty jurisdiction in the country. See STUDIES: Virginia Leads the
Country in Death Sentences Resulting in Executions, DEATH PENALTY INFO. CTR.,
http://www.deathpenaltyinfo.org/studies-virginia-leads-country-death Iting-executions (last visited
July 23, 2013).

237

process in Virginia emphasizes finality convictions and death sentences over fairness. Thus,
Virginia is not in compliance with Protocol #1.

Recommendation

The Assessment Team recommends that Virginia adopt several reforms to promote adequate
development, presentation, and judicial consideration of claims during capital state habeas
proceedings, including the following:

e Return original jurisdiction to Virginia trial courts over capital state habeas claims to
ensure that the court in which the inmate was originally convicted has the first
opportunity to correct any errors. This approach also affords more process to all parties
involved, as the decision to grant or deny a hearing and the court’s final order may then
be appealed to the Supreme Court of Virginia;

e 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;

e Provide an evidentiary hearing on any cognizable issue for which there is a genuine
dispute of fact, thereby ensuring that factual findings are made after a careful
consideration of the facts and law and not made solely by reference to affidavits;

e Permit extension of page and word limitations on capital habeas petitioners for good
cause; and

e 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.

Legislatures and courts have long recognized that, given the gravity of the sentence involved,
capital cases are different from other criminal cases in the justice system. Importantly, these
reforms will decrease the likelihood of costly errors in subsequent proceedings and better ensure
faimess and minimize the risk of wrongful execution. Finally, current trends regarding the use
of the death penalty in Virginia also suggest that the resources required to implement these
recommendations should not be significant.’°°

103 See, e.g., Larry O'Dell, Virginia's Death Row Population Down to 8, ASSOCIATED PRESS, Mar. 8. 2013 (noting
there are only eight inmates under a sentence of death in Virginia as of March 8, 2013).

238

B. Protocol #2

The state should provide meaningful discovery in post-conviction proceedings.
Where courts have discretion to permit such discovery, the discretion should be
exercised to ensure full discovery.

C. Protocol #3

Trial judges should provide sufficient time for discovery and should not curtail
discovery as a means of expediting the proceedings.

Virginia does not permit any discovery in capital state habeas proceedings before the inmate’s
state habeas corpus petition is filed.’ In fact, no Virginia court has the jurisdiction or authority
to grant pre-petition discovery in capital habeas cases. As previously discussed, the Supreme
Court of Virginia has exclusive jurisdiction over capital habeas petitions.'°° However, the Court
has held that its jurisdiction over those cases does not begin until after the inmate’s habeas
petition is filed; thus, it is unable to grant discovery to assist the inmate in the development of the
inmate’s claims, irrespective of the validity of those claims.

In addition, habeas petitioners may not obtain discovery through use of the Commonwealth’s
Freedom of Information Act, as Virginia’s prosecutors are exempt from the Act’s provisions. !°7

The only instance in which any discovery is permitted is in the context of an evidentiary hearing.
If the Supreme Court of Virginia orders the circuit court to hold an evidentiary hearing in a state
habeas corpus proceeding, some discovery may be permitted on matters relevant to the
hearing.'°° However, as discussed in Protocol #1, the Supreme Court of Virginia has ordered
evidentiary hearings in only five cases since it gained exclusive jurisdiction over capital habeas
cases in 1995.!° Thus, there has been no discovery of any kind in most capital state habeas
cases in recent years.

Moreover, even when an evidentiary hearing is granted, the scope of this discovery is typically
quite narrow. For instance, in Hedrick v. Warden, the Supreme Court of Virginia ordered the
circuit court to conduct an evidentiary hearing before ruling on the habeas petition.!!° Prior to
the hearing, the inmate’s counsel sought discovery of the prosecutor’s files. The Supreme Court
of Virginia, however, held that counsel were not entitled to discovery of these files because the
Court had ordered that the evidentiary hearing be limited to the issue of ineffective assistance of

14 VCRRC Interview, supra note 8. VA. Sup. Cr. R. 3A:11 on discovery in criminal cases, although quite limited,
does not apply in state habeas proceedings. VA. Sup. CT. R. 3A:11 (a) (“This Rule applies to any prosecution for a
felony in a circuit court and to any misdemeanor brought on direct indictment.”).

15 Va. CODEANN. § 8.01-654(C)(1) (2013).

106 See Order Denying Motion for Pre-Petition Jurisdiction, In re Gleason (Va. Oct. 17, 2012) (on file with author).
The trial court is empowered only to appoint counsel in these cases. VA. CODE ANN. § 19.2-163.7 (2013).

197 Connell v. Kersey, 547 S.E.2d 228, 231-32 (Va. 2001).

108 VCRRC Interview, supra note 8.

See supra note 54 and accompanying text.

NO” Hedrick v. Warden, 570 S.E.2d 840, 862 (Va. 2002)

239

counsel.’!! The Court further held that “a habeas corpus petitioner is not allowed to embark
upon a ‘fishing expedition’” of the prosecutor’s files.

The timeframe for reviewing any discovery that might be permitted in an evidentiary hearing is
also quite limited. Virginia statutory law provides that the circuit court must “conduct the
hearing within 90 days after the order of the Supreme Court [granting the hearing] has been
received,” and must “report its findings of fact and recommend conclusions of law to the
Supreme Court within 60 days after the conclusion of the hearing.”!!°

The near absence of discovery during Virginia capital habeas proceedings, as demonstrated in
the Justin Wolfe case, prevents petitioners from obtaining the necessary evidentiary materials to
effectively develop and present claims and demonstrate grounds for relief. Discovery can be
limited prior to a capital trial in Virginia and trial counsel may have failed to seek all
discoverable material. The prosecution may have failed to disclose exculpatory material that
would undermine confidence in the verdict or death sentence. A petitioner without knowledge of
or access to the Commonwealth’s records simply would not be able to challenge his/her sentence
and conviction, no matter the gravity of the constitutional violation that occurred at trial. Absent
full and meaningful discovery during state habeas review, it is often impossible to determine
whether all valid claims and defenses have been raised by the defense, as well as whether all
exculpatory material has been disclosed.

In the previously discussed Justin Wolfe case, for example, several instances of prosecutorial
misconduct were undiscovered until the federal habeas proceedings, despite the fact that Wolfe
first raised the issues during state habeas.''* Had Wolfe been granted discovery in state habeas,
these errors might have been found and corrected earlier.

Conclusion

Virginia law effectively bars discovery in most capital state habeas proceedings. This general
prohibition means that a death-sentenced inmate may not be able to establish that a serious
constitutional violation occurred at trial because the information needed to establish the claim is
undiscoverable. In the few proceedings where discovery has been permitted, it has been granted
in the context of an evidentiary hearing; in these instances, however, it is often confined to a
narrow issue. Finally, Virginia law provides limited time to review any discovery that might be
granted in the context of the evidentiary hearing. Thus, Virginia is not in compliance with
Protocol #2 or Protocol #3.

Ul See id.

2 Id.

"3" Va. CODEANN. § 8.01-654(C)(3) (2013).

‘4 See supra notes 70-85 and accompanying text. See also Wolfe v. Clarke, 819 F. Supp. 2d 538, 552 (E.D. Va.
2011) (“In this case, the evidence was favorable to Wolfe in that it would have impeached the key witness'
testimony and possibly established an alternative motive for the crime. It was withheld from the Petitioner during
trial as established by the fact that it was only submitted to Wolfe in the discovery ordered by this Court in its
habeas inquiry as well testimony at the evidentiary hearing.”).

240

Recommendation

The Virginia Assessment Team recommends that Virginia law and court niles be amended to
ensure that death-sentenced inmates are able to fully develop the factual bases of any claim
regarding the validity of their conviction or sentence. The Assessment Team is aware of
concerns that discovery during state habeas proceedings may be characterized as a “fishing
expedition,” however, other jurisdictions, including the federal courts, have recognized that “a
habeas petitioner is not required to show that the requested discovery would ‘unquestionably
lead to a cognizable claim for relief’ in order to obtain discovery.”!!

Thus, in order to promote confidence in the integrity of the justice system—particularly when a
life is at stake—the Assessment Team recommends that Virginia require comprehensive
discovery in all capital state habeas proceedings. Such discovery should include the complete
files of trial and appellate counsel, as well as prosecutor and law enforcement files, which would
be made available to the petitioner prior to the filing of his/her state habeas petition. It should
also provide for the protection of witness information where appropriate.''° The Assessment
Team notes that North Carolina’s statute, which provides for broad discovery in capital post-
conviction cases, might serve as a model in this regard. The statute provides as follows:

In the case of a defendant who is represented by counsel in post[-]conviction
proceedings in superior court, the defendant’s prior trial or appellate counsel shall
make available to the defendant’s counsel their complete files relating to the case
of the defendant. The State, to the extent allowed by law, shall make available to
the defendant’s counsel the complete files of all law enforcement and
prosecutorial agencies involved in the investigation of the crimes committed or
the prosecution of the defendant. If the State has a reasonable belief that allowing
inspection of any portion of the files by counsel for the defendant would not be in
the interest of justice, the State may submit for inspection by the court those
portions of the files so identified. If, upon examination of the files, the court finds
that the files could not assist the defendant in investigating, preparing, or
presenting a [post-conviction petition], the court in its discretion may allow the
State to withhold that portion of the files.'*

Meaningful discovery, coupled with the grant of an evidentiary hearing on any cognizable claim
for which there is a genuine dispute of fact, would also assist the courts in determining thorough
and reliable findings of fact and conclusions of law during capital state habeas proceedings.

Furthermore, as previously discussed in Chapter Five on Prosecution, Virginia should adopt
broader discovery rules at trial, including required disclosure of law enforcement reports and
witness statements as is required under the criminal discovery rules in many other states. By
allowing full discovery at the earliest stage of the case, Virginia will substantially decrease the
chance of error, and reduce the volume of additional discovery during state habeas proceedings.

45 Simmons v. Simpson, 2009 WL 4927679, at *5 (W.D. Ky. Feb. 12, 2009) (citing Keenan v. Bagley, 262 F.
Supp. 2d 826, 838 (N.D. Ohio 2003)).

N.C. GEN. STAT. § 15A-1415(£) (2012).
uy Id.

241

The Assessment Team also notes that the Indigent Defense Task Force of the Virginia State Bar
has recommended several changes to the Virginia’s trial-level discovery rules, including

encouraging parties to “agree in writing to a disclosure of more information” than required under
Rule 3A:11.1°

D. Protocol #4

When deciding post-conviction claims on appeal, state appellate courts should
address explicitly the issues of fact and law raised by the claims and should issue
opinions that fully explain the bases for dispositions of claims.

Virginia statutory law requires the reviewing court to “give findings of fact and conclusions of
law following a determination on the record or after hearing” in a state habeas proceeding.'!®
However, the law does not specify how detailed these findings and conclusions are required to
be.

Historically, it appears that the Supreme Court of Virginia often dismissed habeas petitions with
little discussion of the actual claims presented. In the 1997 case Goins v. Warden, for instance,
the Court dismissed all of the petitioner’s habeas claims in a two-page order.!”! Claims that were
discussed in the order were referred to in a brief description, then summarily dismissed.'2?_ For
example, the petitioner’s ineffective assistance of counsel claims were found to have “no merit”
and dismissed following a citation to Strickland v. Washington, the seminal U.S. Supreme Court
opinion of ineffective assistance of counsel.'** In recent years, the Supreme Court of Virginia
has issued more detailed orders when dismissing habeas petitions in death penalty cases. These
orders typically explain the legal reasoning behind the Court’s decision.!“* When deciding
questions of fact, however, the Court’s orders often have not fully explained the bases for their
findings. As discussed in Protocol #1, the Supreme Court of Virginia often relies on the witness
affidavits provided by the parties to make findings of fact in capital state habeas cases, rather
than ordering the trial court to hold an evidentiary hearing.!2° When the affidavits of the parties’
witnesses conflict, the Court will often choose which version of events it finds to be more
believable without conducting further inquiry.!”°

Conclusion

In recent orders, the Supreme Court of Virginia has discussed the inmate’s claims individually
and explained the legal rationale for its dispositions. However, the Court’s explanation of its

48 See VSB Indigent Defense Task Force Requests Comments for Proposed Amendments to Virginia Supreme
Court Rule 3A:11, VA. STATE BAR, http://www.vsb.org/docs/prop-rule-3A 11-102612.pdf (last visited July 23,
2013). It does not appear, however, that the proposed rule change addresses discovery in state habeas proceedings.
4S Va. CODEANN. § 8.01-654(B)(5) (2013).

20 See id. In addition, it is unclear from the statute whether this requirement only applies to the circuit court’s
findings in a non-capital state habeas proceeding, or if it applies to the Supreme Court of Virginia as well. Id.

to Goins v. Warden, No. 962477 (Va. May 5, 1997) (on file with author).

123 it

24 See, e.g., Porter v. Warden, 722 S.E.2d 534 (Va. 2012).

See supra notes 60-64 and accompanying text.

Id.

242

factual findings remains quite limited, often relying on one party’s affidavit when issues of fact
are in dispute. Thus, Virginia is in partial compliance with Protocol #4.

Recommendation

The Assessment Team reemphasizes that Virginia should adopt the recommendations in
Protocols #1, #2, and #3 of this Chapter to permit adequate development and judicial
consideration of all claims through a more robust process in state habeas cases. This will also
better equip the Supreme Court of Virginia to fully explain the findings of fact and conclusions
of law in its decisions.

E. Protocol #5

On the initial state post-conviction application, state post-conviction courts should
apply a “knowing, understanding and voluntary” standard for waivers of claims of
constitutional error not preserved properly at trial or on appeal.

Protocol #5 is not applicable to Virginia.

The Supreme Court of Virginia has original jurisdiction over all state habeas proceedings in
death penalty cases. As such, the Assessment Team will examine the court’s application of a
knowing, understanding, and voluntary standard to waivers of constitutional error in state habeas
cases under Protocol #6, below.

F. Protocol #6

When deciding post-conviction claims on appeal, state appellate courts should apply
a “knowing, under ing and ‘y” standard for waivers of claims of
constitutional error not raised properly at trial or on appeal and should liberally
apply a plain error rule with respect to errors of state law in capital cases.

Waiver of Claims in State Habeas Proceedings

Virginia places strict limits on the types of claims that are reviewable in state habeas
proceedings. The Supreme Court of Virginia has repeatedly held that claims of trial error that
could have been raised at trial and on direct appeal are “not cognizable in a petition for a writ of
habeas corpus.”!”” This rule bars the Court from considering any trial error claims during state
habeas proceedings, irrespective of whether the claim was actually raised at trial or on direct
appeal.! 8 The Court has held, for instance, that allegations of error related to indictment
defects,'”° jury selection,'° and admissibility of evidence are claims of trial error that cannot be

sd Teleguz v. Warden, 688 S.E.2d 865, 872 (Va. 2010) (citing Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.
1974)).

8" See Slayton, 205 S.E.2d at 682 (“A petition for a writ of habeas corpus may not be employed as a substitute for
an appeal or a writ of error.”).

"°° “Morrisette v. Warden, 613 S.E.2d 551, 554 (Va. 2005).

130 Teleguz, 688 S.E.2d at 874.

243

raised in habeas proceedings.'*! Thus, the Court will not apply any standard for waivers of

claims not properly raised at trial or on appeal, as these types of claims will never be considered
in state habeas proceedings under any circumstances.

The Supreme Court of Virginia has also held that claims of actual innocence cannot be
considered in state habeas proceedings.” Under this rule, even an inmate with conclusive proof
of innocence would not be able to have his/her claim reviewed by the Court."* While Virginia
has enacted statutes that allow an inmate to establish his/her innocence in court by other means,
these procedures are limited to cases in which the inmate can prove his/her innocence through
biological evidence testing’ and to cases in which the inmate did not plead guilty at trial.'°

Waiver in Direct A ppeal Proceedings!”®

Virginia also places strict procedural limitations on the types of claims that can be considered on
direct appeal. The Supreme Court of Virginia will not consider an alleged trial error on direct
appeal “unless an objection was stated with reasonable certainty at the time of the ruling [by the
trial court], except for good cause shown or to enable [the Supreme] Court to attain the ends of
justice.”

This rule requires the defendant to properly preserve a trial error for appeal by
contemporaneously objecting to the alleged error when it occurs at trial and stating the specific
legal grounds for the objection.'** Otherwise, the trial error is considered waived. In one death
penalty case, for instance, the Supreme Court of Virginia declined to consider fifteen trial errors
alleged by the defendant on direct appeal.!°? The defendant had represented himself at trial,!4°
and was likely unaware of the objection procedure and the legal bases for objections. In fact, in
five of the fifteen alleged errors, the defendant raised an objection at the time the alleged trial
error was made, but he failed to state the proper grounds for the objection; thus, the Court held
that the claims were waived, and they were never considered on the merits.!"!

In some cases, a defendant has been found to have waived a claim of trial error even when s/he
did properly object at trial. In Rogers v. Commonwealth, a capital case in which the jury did not
impose the death penalty, the defendant argued on direct appeal that the prosecution had made

5! Slayton, 205 S.E.2d at 682.
2 Lovitt v. Warden, 585 S.E.2d 801, 827 (Va. 2003) (declining to consider death row inmate’s innocence claim,
stating that his guilt was determined at trial).
S See id.
4 Va, CODE ANN. § 19.2-327.1(A) (2013). For further discussion of Virginia’s biological evidence testing
statute, see Chapter Three on Collection, Preservation, and Testing of DNA and Other Types of Evidence.
SS Va. CODE ANN. § 19.2-327.10 (2013).
186 while this issue may be more appropriately addressed under Chapter Seven on Direct Appeal Proceedings,
Chapter Seven addresses only the issue of meaningful proportionality review of a death sentence on appeal.
ST "va. Sup. CT. R. 5:25.
O'Dell v. Commonwealth, 364 S.E.2d 491, 494 (Va. 1988).
Id. at 494-95.
Id. at 494.
Id. at 495.

138
134
14
141

244

several improper statements during closing arguments regarding the victim’s time of death. Ww
Although trial counsel objected to the argument and moved for a mistrial, the Court of Appeals
of Virginia dismissed the claims as procedurally defaulted.'“? The court held that because the
motion for mistrial was not made contemporaneously with the objection, the claim of error was
not properly preserved.'* The function of a strict procedural rule such as this is unclear.
Litigants are required to object at trial to give the trial court the first opportunity to correct an
error, thereby promoting judicial economy and preventing litigants from intentionally ignoring
errors. Additional requirements, such as those described in Rogers, elevate procedure over
substance.

The Virginia Supreme Court Rules permit an alleged error that is not properly preserved to be
considered on direct appeal “for good cause shown or to enable the Court to attain the ends of
justice;”!4 however, this exception has rarely been applied. The Court has held that “[w]hether
the ends of justice provision should be applied involves two questions: (1) whether there is error
as contended by the appellant; and (2) whether the failure to apply the ends of justice provision
would result in a grave injustice." While the meaning of “grave injustice” is unclear, it
appears that, based on a review of Virginia appellate cases, the Court has never reversed a death
penalty case on direct appeal for an error that was not properly preserved at trial. The “ends of
justice” exception has rarely been applied in non-capital cases, as well. In recent cases, Virginia
courts have applied the exception when the prison term imposed on the defendant was several
years longer than the maximum sentence permitted by law,'*’ when the “the evidence clearly and
affirmatively show[ed] that an element of [grand larceny] . . . did not occur,’ »148 and when a trial
court revoked the defendant’s suspended sentences despite no longer having the statutory
authority to do so.!“° Thus, it appears that the exception applies only in cases in which the
defendant’s conviction or sentence is plainly in violation of Virginia law.

Conclusion

The Supreme Court of Virginia—on direct appeal and in state habeas proceedings—has
restricted its review of errors that were not properly preserved at trial. Thus, Virginia is not in
compliance with Protocol #6.

Recommendation

Some procedural default rules are necessary to ensure that, in most circumstances, the lower
court had an opportunity to rule on an alleged error before it is reviewed by a court of appeal.

2" Rogers v. Pearson, No. 1:11CV 1281, 2012 WL 3691085, at *10 (E.D. Va. Aug. 27, 2012). The cited case is the
subsequent federal habeas petition, which references the Court of Appeals of Virginia’s opinion on direct appeal.
See id. The Court of Appeals opinion was not published.

443" Td. (quoting Rogers v. Commonwealth, No. 2954-06-4, at *6 (Va. Ct. App. Aug. 9, 2007)).

M4" Id. See also Y eatts v. Commonwealth, 410 S.E.2d 254, 264 (Va. 1991).

45" va. Sup. CT. R. 5:25.

“6 Gheorghiu v. Commonwealth, 701 S.E.2d 407, 413 (Va. 2010) (citing Charles v. Commonwealth, 613 S.E.2d
432, 433 (Va. 2005).

17 “Hines v. Commonwealth, 721 S.E.2d 792, 798 (Va. App. 2012).

48" Ali v. Commonwealth, 701 S.E.2d 64, 68 (Va. 2010).

“9 Keen v. Commonwealth, No. 1787-09-3, 2010 WL 2650374, at *3 (Va. App. July 6, 2010).

245

Virginia’s strict procedural default rules, however, make it nearly impossible for any claim not
properly raised in the first instance to be reviewed on the merits, irrespective of the strength of
the claim or the egregiousness of the alleged error.’ Defaulted claims would likely not be
reviewable in federal court either, where courts are generally prohibited from considering claims
of error that were not reviewed in state court. In a death penalty case, an inmate could be
executed without having had several alleged errors reviewed by any court, simply because
his/her lawyer failed to properly object to an error at trial.

Virginia must ensure that death row inmates receive full and fair consideration of their claims of
error on the merits. Accordingly, on direct appeal, the Supreme Court of Virginia should
reexamine the application of the “ends of justice” exception in order to provide meaningful
review of unpreserved claims of error in death penalty appeals.’

G. Protocol #7

The states should establish post-conviction defense organizations, similar in nature
to the > capital resource centers defunded by Congress in 1996, to represent capital

in state post iction, federal habeas corpus, and clemency
proceedings.
Protocol #8
For state post-conviction proceedings, the state should appoint counsel whose
qualifications are consi: with ther dations in the ABA Guidelines on the
Appointment and Performance of Defense Counsel in Death Penalty Cases. The state
should ip d counsel ad and, as y, provide

sufficient funds for investigators and experts.

Representation of Capital State Habeas Petitioners

Virginia statutory law provides that, within thirty days of the date an inmate’s death sentence is
affirmed on direct appeal, the trial court must appoint counsel to represent the inmate in state
habeas proceedings.**’ Although that statute is unclear regarding the number of attorneys that
must be appointed, courts have regularly appointed two attomeys in recent years.’ Virginia,

150 The 2002 Joint Legislative Audit and review Commission similarly found “that appellate review for death row
inmates in Virginia has been expedited by the courts and that many claims raised by these inmates are not
considered on their merits through application of the doctrine of procedural default.” J. LEGIS. AUDIT & REV.
COMM’N, VA. ASSEMBLY : REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL PUNISHMENT 78 (2002).

St 28 U.S.C. § 2254(b)(1).

12 See, e.g., Ky. R. CRIM. P. 10.26 (“A palpable error which affects the substantial rights of a party may be
considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently
raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice
has resulted from the error.”); Perdue v. Commonwealth, 916 S.W.2d 148, 164 (Ky. 1995) (finding reversible error
due to prosecutor’s argument during the penalty phase of a capital case, notwithstanding defense counsel’s failure to
object).

53° Va. CODEANN. § 19.2-163.7 (2013).

154 VCRRC Interview, supra note 8.

246

however, does not guarantee the assistance of two qualified counsel and ancillary and expert
assistance through clemency proceedings in Virginia death penalty cases.

All but one Virginia death row inmate with a pending state habeas, federal habeas, or clemency
claim is re resented by one attorney from Virginia Capital Representation Resource Center
(VCRRC).!° VCRRC, founded in 1992, is a non-profit law firm dedicated to representing
Virginia’s death row inmates in post-conviction and clemency proceedings.’ In addition to the
VCRRC attorney, the trial court will typically appoint a private bar attomey as co-counsel.'°” As
with the VCRRC attorney, this lawyer will usually continue to represent the inmate through
federal habeas and state clemency proceedings. '®

The Assessment Team also notes that, in light of the U.S. Supreme Court’s 2012 decision in
Martinez v. Ryan, VCRRC attomeys may be unable to effectively represent death row inmates in
all aspects of both state and federal habeas proceedings.'°° In Martinez, the Court held that an
inmate may raise procedurally defaulted ineffective assistance of counsel claims in federal
habeas proceedings if the attorney who failed to raise the claim in state post-conviction
proceedings also was ineffective.

Funding of State Habeas Counsel

While VCRRC is not a state agency, it receives most of its funding from the Virginia State
Bar! The State Bar, in turn, receives funding to support VCRRC from the Commonwealth’s
annual budget.’ In exchange for this funding, VCRRC has not charged the Commonwealth for
work and expenses incurred during the representation of Virginia death row inmates in state
habeas proceedings.!®* WVCRRC also receives payment if appointed by the federal courts to
represent indigent petitioners in federal habeas proceedings.

Private counsel appointed to represent death row inmates during state habeas proceedings are
compensated at a rate determined by the court.’ The hourly rate available to counsel cannot
exceed $200.00 per hour for in-court and $150.00 for out-of-court service and judges may, in

155 Iq. The one remaining inmate is represented by a former VCRRC attorney who continued to represent the
inmate after she left VCRRC. Id. Although VCRRC currently represent clients in state and federal habeas
proceedings, a 2012 U.S. Supreme Court decision may require different attomeys to be appointed to represent
inmates in federal habeas proceedings. Id. In Martinez v. Ryan, the U.S. Supreme Court held that an inmate may
raise Jefaulted ineffective assi of counsel claims in federal habeas proceedings if the attorney
who failed to raise the claim in state post-conviction proceedings was ineffective. Martinez v. Ryan, 132 S.Ct.
1309, 1320 (2012).

i VCRRC Interview, supra note 8.

158 ie

159 -VCRRC Email, supra note 45.

160 Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012).

VCRRC Interview, supra note 8.

162 Id.

163 Id.

'6t Id; VCRRC Email, supra note 45.

"Va. CODEANN. § 19.2-163(2) (2011).

247

their discretion, set lower hourly rates on a case-by-case basis.'® Courts also approve the

number of hours and the amount of funds available for reimbursement in capital
representation.!°”

Qualifications of State Habeas Counsel!

Virginia has adopted statutory qualifications for court-appointed counsel in capital cases,
including counsel representing death row inmates during state habeas corpus proceedings.
The standards, however, fall short of those recommended by the ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases (ABA Guidelines).

Attomeys from the VCRRC, who work almost exclusively on state and federal capital habeas
cases in Virginia, have more capital experience and training than is required by Virginia law.
However, VCRRC has not enacted any formal qualification or training standards for its
attomeys.!”” Moreover, typically only one of the two attomeys appointed to represent a death
row inmate in state habeas proceedings is employed with VCRRC.’” Thus, irrespective of a
VCRRC attorney’s expertise, there is a significant risk that an attorney who does not qualify
under the ABA Guidelines as possessing the relevant skills and commitment to zealous advocacy
will be appointed to represent a capital habeas petitioner.

When such counsel undertake representation, it increases the risk that a potential claim will be
ignored or that a procedural error will cause an inmate to default on his/her claims. In the case of
Lonnie Weeks, for instance, Weeks’s appointed attorney erroneously filed the initial state habeas
petition in the circuit court, not knowing that the Supreme Court of Virginia had exclusive
jurisdiction over state habeas proceedings in death penalty cases.' While the attomey
eventually filed a petition with the Supreme Court, it was deemed untimely!” As a result,
Weeks’s ineffective assistance of trial counsel claims were procedurally defaulted, and thus
never considered on the merits in state or federal court.!”

Availability and Funding of Mitigation Specialists, Investigators, and Experts:”°

Since the Supreme Court of Virginia was granted exclusive jurisdiction over state habeas
proceedings in death penalty cases in 1995, no court has approved funding to support mitigation,
investigative, or expert services in a death row inmate’s case.!”° As with the power to grant

166° tds Telephone Interview by Paula Shapiro with John Rickman, Dir. of Fiscal Servs., and Mary Gilbert, Exec.
Sec’y Office, Sup. Ct. of Va. (Apr. 20, 2012) (on file with author).
‘67 Thterview with John Rickman and Mary Gilbert, supra note 166. See Chapter Six on Defense Services for a full
discussion of compensation of capital defense counsel in Virginia.
168 For further discussion of the qualifications of capital defense counsel, see Chapter Six on Defense Services.
9 Va. CODE ANN. § 19.2-163.8(A)-(E) (2013).
70 VCRRC Survey Response, supra note 41, at 4.
‘7! VCRRC Interview, supra note 8.
on Weeks v. Angelone, 176 F.3d 249, 257 (4th Cir. 1999).
Id.
174" Td. at 272-73.
‘5 For further discussion on funding and resources for capital defense counsel, see Chapter Six on Defense
Services.
176 VCRRC Survey Response, supra note 41, at 7.

248

discovery, it appears that there is no court or other entity in Virginia with the jurisdiction or
authority to approve such funding. The Supreme Court of Virginia routinely denies requests for
expert funding in its final order denying state habeas relief.'”” The circuit courts, which appoint
counsel in capital state habeas proceedings, do not have the statutory authority to perform any
other functions in these proceedings, and thus cannot appoint mitigation specialists,
investigators, or experts. !”*

Accordingly, VCRRC itself must cover the costs associated with the hiring of mitigation
specialists, investigators, and experts in capital state habeas cases.'”?7 VCRRC’s budget,
however, is not sufficient to cover the costs associated with hiring all needed ancillary services in
capital habeas cases. The organization employs one staff mitigation specialist who also serves as
the investigator for all of VCRRC’s pending cases, which include nearly all Virginia capital
cases currently in state habeas, federal habeas, and clemency proceedings.'* VCRRC does not
have any other investigators or experts on staff.!*! When expert services are necessary, VCRRC
often Tequests the expert, such as a mental health specialist, to perform his/her services pro
bono.

The lack of available investigative expert services makes it is extremely difficult for a death row
inmate to discover and develop many state habeas claims, which often rely on complex facts that
are not readily found in the trial record. For instance, in the case of Michael Wayne Williams,
the prosecutor improperly failed to disclose juror bias: the forewoman had been married to a
deputy sheriff, who was a prosecution witness in the case. 3 Moreover, the elected
Commonwealth’s Attorney had represented the forewoman in divorce proceedings. * Williams
was sentenced to death at trial, and Williams’s counsel did not discover the evidence of juror
bias until federal habeas proceedings.'® In its habeas order, the federal district court held that
Williams’s inability to obtain expert assistance in state habeas proceedings effectively prevented
him from developing his claims.’ The court noted that “[t]he state courts [] denied Williams
the opportunity to develop the necessary facts by denying all of Williams’ requests for discovery,
expert assistance, and investigative funds, and by refusing to hold any hearing to take evidence
outside of the trial record.”"®’ Although the federal district court denied Williams’s habeas
petition for procedural reasons,’* the U.S. Supreme Court later remanded the case for a hearing
on the issue, noting that counsel’s inability to obtain an investigator in state habeas proceedings

77 VCRRC Interview, supra note 8. See, e.g., Juniper v. Warden, 707 S.E.2d 290, 311 (Va. 2011) (“Upon
consideration thereof, petitioner’s . . . ‘motion for funds to hire a psychologist or psychiatrist,’ [and] ‘motions for
appointment of a DNA expert .. . ,” are denied”); Teleguz v. Warden, 688 S.E.2d 865, 879 (Va. 2010) (“Upon
consideration whereof, petitioner’s motions for the i: of a risk expert, [and] for the
appointment of a cultural expert... . are denied.””)

"®" See VA. CODE ANN. § 19.2-163.7 (2013).

19 VCRRC Survey Response, supra note 41, at 7.

0 Id. at 1.

181 Id.

VCRRC Interview, supra note 8.

Frank Green, Miscues Rule out Execution for Killer, RICHMOND TIMES-DIsPATCH, April 21, 2003, at A1.

Id.

185 Id.
18 See Williams v. Netherland, 6 F. Supp. 2d 545, 547 (E.D. Va. 1998).
Id

188 See id.

249

“depriv[ed] [Williams] of a further opportunity to investigate” his claims.'®° Following the

federal district court hearing, Williams was granted a new trial.'*° He was subsequently
sentenced to life in prison pursuant to a plea agreement with the prosecution. !°!

This lack of funding for mitigation specialists, investigators, and experts may be viewed as a cost
saving measure, but it likely increases the total cost of litigation. When defense attorneys do not
have adequate access to mitigation specialists and investigators, they are often forced to conduct
the investigations themselves, at a much higher hourly rate. This also creates a potentially time-
consuming conflict of interest, as an attorney who served as an investigator in his/her own case
would be unable to testify without withdrawing from representation, thereby requiring the court
to find a replacement attorney. Furthermore, as demonstrated by the Williams case, denial of
funding in state court may simply delay the discovery of an error until federal habeas
proceedings, at which point the state must correct an error it could have resolved much earlier
had adequate resources been provided.

Conclusion

The Commonwealth of Virginia provides some funding to VCRRC, a non-profit law firm that
represents death row inmates in state habeas, federal habeas, and clemency proceedings.
However, while Virginia has established some qualifications for counsel in capital state habeas
proceedings, these requirements are not consistent with the ABA Guidelines. Moreover, Virginia
does not allow for the appointment of mitigation specialists, investigators, or experts in capital
state habeas proceedings under any circumstances. VCRRC does not receive adequate funding
to hire support mitigation specialists, investigators, and experts. Accordingly, Virginia is in
partial compliance with Protocols #7 and #8.

Recommendation

The Assessment Team applauds Virginia for providing some funding to VCRRC to represent
death row inmates in state habeas, federal habeas, and clemency proceedings. Because state and
federal habeas claims in death penalty cases are often complex and require a special
understanding of death penalty law, funding an organization specifically dedicated to capital
post-conviction representation helps to ensure that death row inmates’ claims are fully
researched and developed. In order to improve the quality of post-conviction representation in
Virginia, however, the Assessment Team recommends that Virginia provide funding so that
VCRRC attomeys and other state habeas attorneys can hire the mitigation experts, investigators,
and experts needed to fully develop and present their clients’ claims.

Most importantly, the Assessment Team recommends that Virginia adopt a mechanism that
allows for the appointment of mitigation specialists, investigators, and experts in capital state
habeas cases. Furthermore, as with the need to permit discovery in capital habeas cases, this
would require Virginia law to grant a court jurisdiction over capital habeas cases before the
inmate’s petition is filed. Under Virginia’s current statute, expert and ancillary services cannot

189 Williams v. Taylor, 529 U.S. 420, 442 (2000).
190 Williams v. Netherland, 181 F. Supp. 2d 604, 619 (E.D. Va. 2002).
191 Green, supra note 183.

250

be provided because no court is empowered to grant them. Without the assistance of these
ancillary services, state habeas claims are likely to go overlooked and underdeveloped in cases
where the petitioner is to be executed. Counsel cannot be expected to adequately present a claim
related to mental illness or mental retardation, for instance, without the assistance of an expert
psychologist or psychiatrist.

In addition, as discussed in Chapter Six on Defense Services, the Team recommends that
Virginia adopt qualification standards consistent with the ABA Guidelines for counsel appointed
to represent death row inmates in state habeas proceedings.

H. Protocol #9

State courts should give full retroactive effect to U.S. Supreme Court decisions in all
proceedings, including second and successive post-conviction proceedings, and
should ider in such pr dings the decisions of federal appeals and district
courts.

Retroactivity in Initial State Habeas Proceedings

The Supreme Court of Virginia may consider the retroactivity of a U.S. Supreme Court decision
that is decided after a defendant receives a death sentence but before his/her state habeas petition
is filed.!®* In such cases, the Supreme Court of Virginia will apply the retroactivity test adopted
by the U.S. Supreme Court in Teague v. Lane.'°’ Under the Teague standard, a new U.S.
Supreme Court decision regarding constitutional criminal procedure will only apply retroactively
if (1) the decision places “certain kinds of primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe”; or (2) the decision involves “those
procedures that . . . are ‘implicit in the concept of ordered liberty."

In practice, however, it appears that the Supreme Court of Virginia has only once considered the
retroactivity of a U.S. Supreme Court decision since the death penalty was reintroduced in 1976
through 2012. In Mueller v. Murray, a death row inmate argued that the U.S. Supreme Court’s
decision in Simmons v. South Carolina, which was decided after he received the death penalty
but before his state habeas proceedings commenced, should retroactively apply to his case.'®° In
Simmons, the U.S. Supreme Court held that when the defendant’s “future dangerousness” is at
issue, “and the only available alternative sentence to death is life imprisonment without
possibility of parole, due process entitles the defendant to inform the capital sentencing jury . . .
that he is parole ineligible.”!°°

12 See Mueller v. Murray, 478 S.E.2d 542 (Va. 1996). Mueller was decided under an older state habeas procedure,
when the Supreme Court of Virginia did not have exclusive jurisdiction over state habeas petitions in death penalty
cases. However, Mueller is the most recent case in which the Supreme Court of Virginia considered retroactivity.

13 Td. at 546 (citing Teague v. Lane, 489 U.S. 288 (1989)). Teague, however, is not binding on state courts, which
may apply a more liberal retroactivity standard. See State v. Whitfield, 107 S.W.3d 253, 267 (Mo. banc 2003)
(rejecting the application of the Teague standard in Missouri courts and applying a more liberal retroactivity
standard).

ia Teague, 489 U.S. at 311 (internal quotations omitted).

"8 Mueller, 478 S.E.2d at 545.

‘8 Simmons v. South Carolina, 512 U.S. 154, 178 (1994).

251

The Supreme Court of Virginia, however, held that the Simmons decision did not apply
retroactively.” The Court held that the first Teague exception did not apply to Mueller’s case
“because Simmons does not place any conduct outside the scope of the criminal law, nor does it
shield a particular class of persons from the imposition of the death penalty.”'°* With respect to
the second exception, the Court held that “the rule in Simmons is [not] such a groundbreaking
rule ‘implicit in the concept of ordered liberty. »»199 Ty its decision, the Supreme Court of
Virginia considered a similar case in which the U.S. Court of Appeals for the Fourth Circuit
refused to apply the Simmons rule retroactively.”"

Only those Virginia defendants tried after the Simmons decision was announced are entitled to a
jury instruction stating the capital defendant is not parole eligible. In Yarbrough v.
Commonwealth, for instance, a case in which the defendant was tried after the Simmons decision,
the Supreme Court of Virginia reversed the death sentence of a defendant because the trial court
failed to instruct the jury that he would not be parole eligible.” Thus, because of a rule
prohibiting the retroactive application of a court decision, the cases of two Virginia death row
inmates with identical substantive claims were decided differently.

Retroactivity in Second and Successive State Habeas Proceedings

As discussed under Protocol #10, below, Virginia does not permit second or successive state
habeas proceedings in death penalty cases. Accordingly, the Supreme Court of Virginia has
never considered, under any circumstances, the retroactivity of U.S. Supreme Court decisions
arising after the state habeas proceedings are final. In 2003, for example, the U.S. Supreme
Court held in Atkins v. Virginia that the death penalty is unconstitutional as applied to mentally
retarded persons.”°? Despite this clear decision from the U.S. Supreme Court, however, mentally
retarded death row inmates in Virginia whose state habeas claims had already been. exhausted
could not obtain relief in Virginia courts and instead had to rely on the federal courts.”°

Conclusion

Although the Supreme Court of Virginia will consider giving retroactive effect to new U.S.
Supreme Court cases that are decided before a death row files his/her state habeas petition, it has
never retroactively applied any such cases in practice. Moreover, because Virginia law does not
permit second or successive state habeas petitions in death penalty cases, the Supreme Court of
Virginia has never considered the retroactivity of the large number of U.S. Supreme Court cases
that are decided between the time a death row inmate’s initial state habeas petition is filed and
the date of his/her execution. Thus, Virginia is in partial compliance with Protocol #9.

19"
19%

Mueller, 478 S.E.2d at 546.

Id. at 549.

199 Id.

200 Id. at 549 (citing O'Dell v. Netherland, 95 F.3d 1214, 1238 (4th Cir. 1996)).
2! Yarbrough v. Commonwealth, 519 S.E. 2d 602, 616-17 (Va. 1999).

202 Atkins v. Virginia, 536 U.S. 304 (2002).

23 Va. CODEANN. § 8.01-654.2 (2013).

252

I. Protocol #10

State courts should permit second and successive post-conviction proceedings in
capital cases where counsels’ omissions or intervening court decisions resulted in
possibly meritorious claims not previously being raised, factually or legally
developed, or accepted as legally valid.

There are no Virginia statutes, rules, or court decisions that allow for second or successive state
habeas petitions to be considered.2“ In Hawks v. Cox, the Supreme Court of Virginia held that
successive habeas corpus petitions were prohibited “[a]bsent a change of circumstances” such as
a “new constitutional mandate or change in the law.”2°° While this decision would appear to
allow successive state habeas petitions in certain instances, subsequent statutorily-imposed
filings deadlines for capital habeas cases effectively prohibit second or successive habeas
petitions when the death penalty is imposed.””

Virginia law now provides that “[a]ny [state habeas] judgment entered of record shall be
conclusive, unless the same be reversed, except that the petitioner shall not be precluded from
bringing the same matter in question in an action for false imprisonment.”?”” For instance, after
the U.S. Supreme Court held the death penalty to be unconstitutional as applied to mentally

204 The Supreme Court of Virginia previously recognized one exception that permitted a successive habeas petition
to be considered in a capital case. In cases in which a juvenile was sentenced to death, the Court held that an inmate
would be entitled to relief in a successive petition if the inmate could demonstrate that the trial court never had
jurisdiction over the case because “attempts had not been made to notify both of [his/her] parents of his[/her] arrest,
as [] required under state law.” Matthew Dolan, Seven-Year Murder Case Saga Draws to Close with Guilty Plea,
VA. PILOT & LEDGER-STAR, Nov. 29, 2001, at A1; Jackson v. Warden, 529 S.E.2d 587, 587 (Va. 2000). Ina 2001
case, however, the Supreme Court of Virginia abrogated this exception. Nelson v. Warden, 552 S.E.2d 73, 78 (Va.
2001). The statute in question was subsequently amended to require only one parent to be notified of a juvenile’s
arrest. VA. CODE. ANN. § 16.1-263(A) (2013). Finally, in 2005, the U.S. Supreme Court held that it
unconstitutional to impose capital punishment on persons who were under the age of eighteen when the crime was
committed. Roper v. Simmons, 543 U.S. 551 (2005).
25 Hawks v. Cox, 175 S.E.2d 271, 274 (Va. 1970).
206 See, e.g., VA. CODE ANN. § 8.01-654.1 (2013) (providing that the Supreme Court of Virginia may consider a
habeas petition only if it is filed “within 120 days following appointment . . . of counsel to represent him.”). If
counsel are not appointed, the death row inmate is also prohibited from filing a second or successive state habeas
petition:

No petition for a writ of habeas corpus filed by a prisoner held under a sentence of death shall be

considered unless it is filed within sixty days after the earliest of: (i) denial by the United States

Supreme Court of a petition for a writ of certiorari to the judgment of the Supreme Court of

Virginia on direct appeal, (ii) a decision by the United States Supreme Court affirming imposition

of the sentence of death when such decision is in a case resulting from a granted writ of certiorari

to the judgment of the Supreme Court of Virginia on direct appeal, or (iii) the expiration of the

period for filing a timely petition for certiorari without a petition being filed.
Va. CODE ANN. § 8.01-654.1 (2013). Because Virginia statutory law provides for automatic appointment of
counsel, however, it is unclear when this provision would apply. See VA. CODE ANN. § 19.2-163.7 (2012) (stating
that “the court shall . . . appoint counsel” in capital state habeas cases) (emphasis added).
7 Va. CODE ANN. § 8.01-663 (2013). Virginia statute now provides that the Supreme Court of Virginia may
consider a habeas petition only if it is filed “within 120 days following appointment . . . of counsel to represent
him.” VA. CODE ANN. § 8.01-654.1 (2013). Counsel may be appointed to represent a death row inmate only once,
within thirty days after the inmate’s death sentence is affirmed by the Supreme Court of Virginia on direct appeal.
Va. CODE ANN. § 19.2-163.7 (2013).

253

retarded offenders,” Virginia enacted a statute that provided the procedure for death-sentenced
defendants and inmates to present claims of mental retardation.2°° While the statute allowed an
inmate whose direct appeal or habeas petition was pending at the time the statute was enacted to
file for relief, the statute further provides that if the inmate “has completed both a direct appeal
and a [state] habeas corpus proceeding . . . , he shall not be entitled to file any further habeas
petitions in the Supreme Court [of Virginia] and his sole remedy shall lie in federal court,”2!°

Conclusion

Virginia law does not permit second or successive state habeas petitions in death penalty cases
under any circumstances. Accordingly, Virginia is not in compliance with Protocol #10.

Recommendation

The Assessment Team recognizes that some procedural restrictions on habeas petitioners can
prevent unnecessary delay caused by the filing of frivolous claims. Courts should not be
required to expend time and resources by reconsidering claims that have already been fully
litigated. As Virginia itself has recognized in non-capital habeas cases, however, some
exceptions are necessary to ensure that, for instance, an inmate is able to litigate a claim that was
not recognized under the law when his/her original habeas petition was filed.”!’ Death row
inmates, who have received the most severe punishment permitted under the law should, at the
very least, be afforded the same procedural protections as non-capital offenders.

The Virginia Assessment Team recommends that the Commonwealth enact a rule or law
permitting second and successive post-conviction proceedings in cases where there is, as the
Supreme Court of Virginia previously recognized in Hawks v. Cox, a change in circumstances
such as a new constitutional mandate or change in the law.””” This narrow exception will ensure
that death row inmates receive full consideration of their claims without burdening the Supreme
Court of Virginia with redundant petitions. Such a provision would also better ensure that claims
based on new constitutional procedural and substantive rights are not denied to some petitioners
while being made available to others.

J. Protocol #11

In post-conviction proceedings, state courts should apply the harmless error
standard of Chapman v. California, 386 U.S. 18 (1967), which requires the
prosecution to show that a constitutional error is harmless beyond a reasonable
doubt.

In Chapman v. California, the U.S. Supreme Court held that “before a federal constitutional error
can be held harmless, the [appellate] court must be able to declare a belief that it was harmless

20
20

Atkins v. Virginia, 536 U.S. 304 (2002).

Va. CODE ANN. § 8.01-654.2 (2013).

210 Id.

21 Hawks v. Cox, 175 S.E.2d 271, 274 (Va. 1970).
212 See supra note 204 and accompanying text.

254

beyond a reasonable doubt.”23 Under this standard, the prosecution must “prove that there was
no injury” to the inmate as a result of the error.”!

The Supreme Court of Virginia applies the Chapman standard to alleged constitutional trial
errors on direct appeal.”© However, the Court does not consider trial errors in state habeas
proceedings;”"° as such, it has not applied the Chapman standard in these proceedings. Claims
based on ineffective assistance of counsel and the prosecution’s failure to disclose exculpatory
evidence—both constitutional errors—form the majority of alleged errors considered by the
Supreme Court of Virginia in state habeas proceedings. The Court does not apply the Chapman
standard to either of these types of errors. In fact, both claims place the burden on the inmate to
prove that s/he was prejudiced by the error.

With respect to claims of ineffective assistance of counsel, the Court will only grant relief if the
inmate can prove that, as a result of counsel’s inadequate performance, s/he “suffered prejudice
sufficient to undermine confidence in the outcome” of the proceeding. 7 For instance, in
Yarbrough v. Warden, death row inmate Y arbrough alleged in his state habeas petition that his
trial counsel was ineffective for failing to conduct a mitigation investigation into his family
background.”!* Trial counsel had failed to discover and present to the jury that, among other
things, Yarbrough’s mother was a crack cocaine addict who had often neglected her children.7/
In state habeas proceedings, the Supreme Court of Virginia held that, irrespective of whether trial
counsel’s performance was ineffective, Yarbrough could not prove that “there is a reasonable
probability” that the jury would not have sentenced to death had his counsel conducted a proper
mitigation investigation.””° Accordingly, his death sentence was upheld.”

To obtain relief on a claim that the prosecutor failed to disclose exculpatory evidence, the inmate
must prove that the undisclosed evidence was “material.””” Similar to the ineffective assistance
of counsel requirement that counsel’s deficient performance must have prejudiced the inmate;
undisclosed evidence will not be deemed material unless the inmate can prove that its
nondisclosure “undermine[d] the confidence in the outcome of the trial.”””3

213 Chapman v. California, 386 U.S. 18, 24 (1972).
Id

ats Lilly v. Commonwealth, 523 S.E.2d 208, 209 (Va. 1999) (applying the Chapman standard to determine whether
the admission of cod d in violation of the Sixth Amendment was harmless beyond a reasonable
doubt).

ale Teleguz v. Warden, 688 S.E.2d 865, 872 (Va. 2010) (citing Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.
1974)).

ay Yarbrough v. Warden, 609 S.E.2d 30, 38 (Va. 2005) (citing Strickland v. Washington, 466 U.S. 668 (1984).
While this standard was endorsed by the U.S. Supreme Court in Strickland, the Supreme Court of Virginia is not
required to adopt this standard.

218 Id.

29" Td. at 40.
220 Id.

21 Id.

om Gray v. Warden, 707 S.E.2d 275, 281 (Va. 2011) (citing Brady v. Maryland, 373 U.S. 83, 83 (1983)).
Id.

255

Conclusion

Virginia does not apply the Chapman standard in state habeas proceedings. Accordingly, the
Commonwealth is not in compliance with Protocol #11.

K. Protocol #12
During the course of a moratorium, a “blue ribbon” commission should undertake a
review of all cases in which individuals have been either wrongfully convicted or
wrongfully sentenced to death and should recommend ways to prevent such
wrongful results in the future.

Because Recommendation #12 is predicated on the implementation of a moratorium, it is not
applicable to Virginia at this time.

256

CHAPTER NINE
CLEMENCY
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

Under a state’s constitution or clemency statute, the Governor or entity established to handle
clemency matters is empowered to pardon an individual’s criminal offense or commute an
individual’s death sentence. In death penalty cases, the clemency process traditionally was
intended to function as a final safeguard to evaluate (1) the fairness and judiciousness of the
penalty in the context of the circumstances of the crime and the individual, and (2) whether a
person should be put to death. The clemency process can only fulfill this critical function when
the exercise of the clemency power is governed by fundamental principles of justice, fairness,
and mercy.

The clemency process should provide a safeguard for claims that have not been considered on
the merits, including claims of innocence and claims of constitutional deficiency. Clemency also
can be a way to review important sentencing issues that were barred in state and federal courts.
Because clemency is the final avenue of review available to a death row inmate, the state’s use of
its clemency power is an important measure of the faimess of the state’s justice system as a
whole.

While elements of the clemency process, including criteria for filing and considering petitions
and inmates’ access to counsel, vary significantly among states, some minimal procedural
safeguards are constitutionally required. “Judicial intervention might, for example, be warranted
in the face of a scheme whereby a state official flipped a coin to determine whether to grant
clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency
process.”

From 1976, when the Court authorized states to reinstate capital punishment, through May 2013,
clemency has been granted on humanitarian grounds 273 times in twenty-one capital
jurisdictions in the United States.? Notably. 167 of these were granted by former Illinois
Governor George Ryan in 2003 out of concern that the justice system in Illinois could not ensure
that an innocent person would not be executed.’ Another fifteen of these clemency grants
occurred in Illinois when Governor Pat Quinn commuted the death sentences of the remaining
men on death row to life without parole upon that state’s repeal of its death penalty statute in
2011.

Due to restrictions on the judicial review of meritorious claims, the need for a meaningful
clemency power is more important than ever. As a result of these restrictions, clemency can be

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J., concurring).

See Clemency, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/clemency (last visited May 31,
2013). This figure includes states that authorized capital punishment at any time during this period.
3 Id. There have been five additional broad grants of clemency.

725 ILL. Comp. STAT. 5/119-1 (2011) (amending the Illinois Code of Criminal Procedure to abolish the death
penalty); Christopher Wills, Illinois Abolishes Death Penalty, WAsH. Post, Mar. 10, 2011, at A9.

257

the state’s final opportunity to address miscarriages of justice, even in cases involving actual
innocence. A clemency decision-maker may be the only person or body that has the opportunity
to evaluate all of the factors bearing on the appropriateness of the conviction and/or death
sentence without regard to constraints that may limit a court’s or jury’s decision-making. Y et as
the capital punishment process currently functions in many jurisdictions, meaningful review
frequently is not obtained, and clemency too often has not proven to be the critical final check
against injustice in the criminal justice system.

258

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW
A. Clemency Decision-Makers

1. Governor of Virginia

The Governor of Virginia has the sole power to grant “reprieves and pardons” or “to commute
capital punishment” under Article V, Section 12 of the Virginia Constitution.?> The Govemor
may, but is not required to, request that the Virginia Parole Board (Board) investigate and report
to the Governor on any case in which clemency has been requested.° In cases where the
Governor has not requested a report and where the Board believes commutation by the Governor
would be “proper or in the best interest of the Commonwealth,” the Board may also
independently investigate and report its recommendation to the Govemor.’ In neither case,
however, are the Board’s findings binding on the Governor.®

If a Governor grants a pardon or commutation, the Virginia Constitution requires that s/he
communicate her/his reasons for doing so to the General Assembly.’ If s/he denies clemency,
there is no requirement that his/her reasons for doing so be communicated. The Governor’s
reports to the General Assembly are publicly available through Virginia’s Legislative
Information System.!° Other clemency documents, such as clemency petitions, are considered
part of the Governor’s working papers and, therefore, need not be made available to the public. !!

5 Va. Const. art. V, § 12. See also VA. CODEANN. § 53.1-229 (2013) (codifying VA. ConsrT. art. V, § 12). The
govemor may grant three types of clemency: a simple pardon, a conditional pardon, or an absolute pardon. A
simple pardon “is a statement of official forgiveness.” Generally, a person will apply for a simple pardon only after
his/her —_ release from prison. Pardons, VA SEC’Y OF THE COMMONWEALTH,
http://www.commonwealth. virginia. gov/JudicialSystem/Clemency/pardons.cfm (last visited May 31, 2013). A
conditional pardon “is available only to people who are currently incarcerated. It is usually granted for early release
and involves certain conditions.” Id. An absolute pardon “is rarely granted because it is based on the belief that the
petitioner was unjustly convicted and is innocent. An absolute pardon is the only form of executive clemency that
would allow [a person] to petition the court to have that conviction removed from [his/her] criminal record.” Id.

Va. CODEANN. § 53.1-231 (2013).

Id.

Va. PAROLE BD., VIRGINIA PAROLE BOARD POLICY MANUAL 25 (October 1, 2006), available at
http://www. vadoc.state.va.us/vpb/manuals/pb-policymanual-1006.pdf (noting, “The power to grant pardons,
reprieves, and commutations rests exclusively with the governor.”).

9 Va. Const. art. V, § 12. See, e.g., OFFICE OF Gov. ROBERT F. MCDONNELL, LIST OF PARDONS,
COMMUTATIONS, REPRIEVES AND OTHER FORMS OF CLEMENCY, S. Doc. No. 2 (Jan. 17, 2012 through Jan. 16,
2013), available at http://leg2.state.va.us/dls/h&sdocs.nsf/By+Y ear/SD22013/$file/SD 2.pdf.

VIRGINIA’S LEGISLATIVE INFO. SYSTEM, http://leg1.state.va.us/ (last visited June 17, 2013).

Va. CODE ANN. § 2.2-3705.7(2) (“Working papers’ means those records prepared by or for an above-named
public official for his personal or deliberative use.”). Leona D. Jochnowitz, Public Access To State Clemency
Petitions, 44 No. 2 Crm. L. BULL. ART. 2, 16 (2008).

8

ul

259

2. Virginia Parole Board!”

Virginia has authorized the Virginia Parole Board to investigate and report on any request for
commutation, pardon, reprieve or remission of a fine or penalty at the request of the Governor. '°
Alternatively, “[i]n any other case in which it believes action on the part of the Governor is
proper or in the best interest of the Commonwealth,” the Board may independently investigate
and make a recommendation to the Governor.’*

The Virginia Parole Board consists of up to five members, at least one of whom must be a
representative of a victims’ organization or a victim of crime.!° Board members are appointed
by the Governor for staggered terms of four years, subject to confirmation by the General
Assembly.'® The Governor designates one member of the Board as Chairman, who must be a
full-time state employee. No more than two other members may be designated as full-time
employees of the state.'* Members of the Board “serve at the pleasure of the Governor.” ®

B. Applying for and Obtaining Clemency

1. Applications for Clemency

While there is no specific application process for those requesting commutation of a death
sentence in Virginia, the Governor’s Office provides guidelines for petitioning for conditional
and absolute pardons. To petition for a conditional pardon, an inmate or his/her family members
or attomey must write a letter to the Governor containing specific information on the petitioner’s
identity and procedural history of his/her case. In addition, the petition must contain a complete
statement of details for each conviction and an explanation of why the Governor should grant a
pardon.

To apply for an absolute pardon, the inmate must also have entered a plea of not guilty
throughout the entire judicial process and must have exhausted all other avenues for relief,

2 Although the Virginia Assembly abolished parole in 1995, parole is still available to inmates who committed

felonies before January 1, 1995. Community Corrections, VA. DeEp’T OF CorR,
http://www. vadoc.state.va.us/community/ (last visited May 31, 2013) (“Parole was abolished in Virginia for felonies
committed on or after January 1, 1995. The parole decision function and supervision is provided to offenders who
committed felonies before that date.”).
8 Va. Cope. ANN. § 53.1-231 (2013); Va. CoDE ANN. § 53.1-136(5) (2013) (The Board shall “Make
investigations and reports with respect to any commutation of sentence, pardon, reprieve or remission of fine or
penalty when requested by the Govemor).

Va. CODE. ANN. § 53.1-231 (2013).
15 Va. CODEANN. § 53.1-134 (2013).
16 Va. PAROLE BD., VIRGINIA PAROLE BOARD POLICY MANUAL 1 (October 1, 2006) available at
http://www.vadoc.state.va.us/vpb/manuals/pb-policymanual-1006.pdf; Va. CopE ANN. § 53.1-134 (2013).
fs VA. CODE ANN. § 53.1-135 (2013).

Id.
19 Va. CODE ANN. § 53.1-134 (2013).
°° Conditional Pardons, SEC’y OF THE COMMONWEALTH,
http://www.commonwealth. virginia. gov/JudicialSystem/Clemency/conditionalPardon.cfm (last visited May 31,
2013)

260

including an appeal to the courts for a Writ of Actual Innocence.”! The inmate must show that
the court rejected the claim of actual innocence, or explain why an appeal for a Writ of Actual
Innocence is not appropriate in his/her case.”

2. Legal Representation During Clemency

Virginia has no rule, regulation, or law providing counsel to represent death row inmates during
clemency proceedings. However, the United States Supreme Court has held that § 3599 of Title
18 of the United States Code permits, although does not require, “federally appointed counsel to
represent their clients in state clemency proceedings and entitles them to compensation for that
representation.”

3. Clemency Decisions

Virginia Govemors have announced their decisions to grant or deny clemency in capital cases at
various times. For example, Governor McDonnell’s office indicates that it has a policy of
notifying inmates of his decision at least five business days before the scheduled execution.”
However, other Governors, such as former Governor Wilder, have waited until the day of the
execution before informing the inmate of his decision to grant or deny clemency.”°

Since Virginia reinstated the death penalty in 1975, five Governors have granted clemency to
eight death row inmates.”° Former Governor Douglas Wilder commuted the sentences of
Herbert Russell Bassette, Joseph M. Giarratano, and Earl Washington, jr” Former Governor
George Allen commuted the sentences of Joseph Payne and William Aristede Saunders.”
Former Governors James Gilmore, Mark Warmer, and Timothy Kaine commuted the death
sentences of Calvin Swann, Robin Lovitt, and Percy Walton, respectively.”°

21 Absolute Pardons and Writ of Actual Innocence, | SEC’Y OF THE COMMONWEALTH,
http://www.commonwealth.virginia.gov/J udicialSystem/Clemency/absolutePardon.cfm (last visited May 21, 2012).
Id.

3 Harbison v. Bell, 556 U.S. 180, 194 (2009) (authorizing federally-appointed counsel, pursuant to 18 U.S.C. §
3599, to represent death row inmates in state clemency proceedings).
24 Laurence Hammack, Governor Denies Clemency for Convicted Killer, ROANOKE TIMES, Sept. 18, 2010, Metro
edition.
Todd E. Pettys, Killing Roger Coleman: Habeas, Finality, and the Innocence Gap, 48 WM. & Mary L. REv.
2313, 2358-59 (2007) (Denying Roger Coleman’s petition for clemency on the day of the execution). Michael L.
Radelet & Barbara A. Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. RICH. L. REV. 289, 306
(1993) (Governor Wilder granted Herbert Bassette’s petition for clemency a mere ten hours before he was scheduled
to be executed.).

Commutations in Capital Cases On Humanitarian Grounds, DEATH PENALTY INFO. CTR,
http://www.deathpenaltyinfo.org/clemency (last visited May 31, 2013).
27” Death Sentences Commuted in Virginia, RICH. TIMES-DIsPATCH, Nov. 15, 1998, at A17.

Id.
22 Commutations in Capital Cases On Humanitarian Grounds, DEATH PENALTY INFO. CTR,
http://www.deathpenaltyinfo.org/clemency (last visited May 15, 2012). Since 1975, Virginia has executed 109
inmates. State by State Database, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/state_by_state (last
visited May 31, 2013).

261

Il. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team’s
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
Assessment Team's rec dations for reform.

A. Protocol #1

The clemency decision-making process should not assume that the courts have
reached the merits on all issues bearing on the death sentence in a given case;
decisions should be based upon an independent consideration of facts and
circumstances.

The Commonwealth of Virginia does not require the Governor, who possesses sole authority to
grant or deny clemency, or the Virginia Parole Board, to independently consider any specific
facts or circumstances when making decisions regarding clemency.*” The Governor is required
to report his/her reasons for granting clemency to the Virginia General Assembly, but is not
required to give his/her reasons for denying clemency.*' Thus, the Governor has broad powers
to grant or deny clemency and “may do so at his discretion.” This discretion allows each
Governor to promulgate his/her own guidelines and policies for evaluating clemency petitions.

The Governor may also request that the Parole Board investigate a clemency petition and make a
recommendation, or the Board may do so independently.” It is unclear how frequently the
Virginia Parole Board has advised Governors on clemency petitions, and it appears that
interactions between the Parole Board and the Governor’s office have varied across
administrations. For example, petitions for clemency under former Govemor Wamer were
usually Processed by both the Secretary of the Commonwealth’s Office and the Virginia Parole
Board.” The two offices would then present their recommendations to the Governor’s
counselor, who would review the recommendations and the request for clemency before briefing
the Governor on the case.*° In the case of petitioner Robin Lovitt, for example, Governor
Warner’s counsel, the Virginia Parole Board, and outside counsel reviewed his petition for

30 Va. Const. art. V, § 12. See also VA. CODE ANN. § 53.1-229 (2013).

31 Va. Const. att. V, § 12.

Clemency, SEC’y OF THE COMMONWEALTH,

itp: fwww.commonwealth.virginia.gov/Judicialsystem/Clemency/clemency.cfm (last visited May 31, 2013).
Id.

3 Va. CODE ANN. § 53.1-136(5) (2013) (The Board shall “Make investigations and reports with respect to any

commutation of sentence, pardon, reprieve or remission of fine or penalty when requested by the Governor); Va.

Cope. ANN. § 53.1-231 (2013) (“In any other case in which it believes action on the part of the Govemor is proper

or in the best interest of the Commonwealth, the Board may investigate and report to the Govemor with its

recommendations.”).

x Frank Green, Warner Facing Tough Decision on Clemency, RICH. TIMES-DIsPATCH, Nov. 22, 2005, at Al.
Id.

262

clemency.*” In contrast, former “Governor Wilder . . . requested a recommendation from the
Board on all pardon requests except those requesting a commutation of the death sentence.”*

Virginia Governors have granted clemency in eight cases since 1976.*° Generally, it is difficult
to determine the reasons for which Governors grant or deny pleas for clemency, or the process
by which they make their decisions. Although the Govemor is required to transmit his/her
reasons for granting clemency to the General Assembly, frequentl tly these reports convey little
information beyond the mere fact that clemency has been granted.“” Moreover, the Governor is
not required to make known his/her reasons for denying clemency."’ Therefore, it is not clear in
many cases whether clemency decision-makers have considered the merits of a petition
irrespective of the courts’ previous rulings on the matter.

The Secretary of the Commonwealth’s website notes that “usually Virginia governors are
reluctant to substitute their judgment for that of the courts. However, if an individual feels able
to provide substantial evidence of [] exceptional circumstances, he or she may submit a petition
for pardon to the governor.” As an illustration, in the case of Ronald Lee Hoke, Sr., Governor
Allen concluded that “the various issues raised by Hoke’s counsel in his clemency petition ha[d]
been litigated thoroughly.” The Governor, therefore, denied Hoke’s plea for clemency and
Hoke was executed on December 16, 1996."

It appears many Governors have relied on the fact that courts’ previously reviewed the case as
their rationale for denying clemency. Former Governor Gilmore denied clemency to Dennis

37 Michael Sluss, Warner Grants Clemency Request, ROANOKE TIMES, November 30, 2005, at Al.
38 Walter A. McFarlane, The Clemency Process in Virginia, 27 U. RICH. L. REV. 241, 251 (1992-1993) (emphasis
added).
°° Clemency, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/clemency (last visited May 31, 2013).
Va. Const. art. V, § 12; Reports to the General Assembly, VA.’s LEGISLATIVE INFO. Sys.,
available at http://leg2.state.va.us/DLS/h&sdocs.nsf/Search+All/?SearchV iew& SearchOrder=4& query=pardons;
e.g. OFFICE OF GOVERNOR GEORGE ALLEN, LIST OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF
CLEMENCY, S. Doc. No. 2 (1997) (stating only that “On November 8, 1996, the Governor commuted the sentence of
death for the murder conviction to life imprisonment without the possibility of parole” and additional conditions of
the commutation); e.g OFFICE OF GOVERNOR JAMES S. GILMORE, LIST OF PARDONS, COMMUTATIONS, REPRIEVES
AND OTHER FORMS OF CLEMENCY, S.Doc. No. 2 (2000) (stating, “On May 12, 1999, the Governor commuted the
sentence of death [of Calvin Swann] for the murder conviction to life impri without the ibility of parole.
The commutation is based upon a thorough review of the Petition for Clemency, the legal decisions issued in the
case, numerous other records, and the circumstances of this matter.”); ¢.g. OFFICE OF GOVERNOR L. DOUGLAS
WILDER, List OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF CLEMENCY, S. Doc. No. 2 (1992)
(stating, “In view of the facts and circumstances surrounding [Joseph M. Giarratano’s] arrest and conviction,
numerous judicial appeals, and the evidence presented by the Attomey General and defense counsel, the Governor
commuted the sentence of death”); Governor Wilder’s report of Earl Washington’s commutation and Governor
Kaine’s report of Percy Levar Walton’s ion are notable to this rule. Both reports discuss at
length the specific reasons for granting clemency and the process by which the Govemor arrived at that conclusion.
OrFice OF Gov. L. DouGLAS WILDER, LIST OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF
CLEMENCY, S. Doc. No. 2 (1994); GOVERNOR TIMOTHY KAINE, LIST OF PARDONS, COMMUTATIONS, REPRIEVES
AND OTHER FORMS OF FEIMENCK, S. Doc. No. 2, 24-27 (2009).
Va. Const. att. V, § 1
Pardons, SEC’Y COMMONWEALTH,
http: //www.commonwealth. virginia. gov/JudicialSystem/Clemency/pardons. cfm (last visited May 31, 2013).

a Va. Executes Md. Man for 1985 Rape, Murder, DAILY Press (Newport News, Va.), Dec. 17, 1996, at A2.
Id.

2

263

Wayne Eaton and Dwayne Allen Wright after noting that the appellate courts had repeatedly
upheld Eaton’s sentence and that “after a review of [Wright’s] material, .. . the Governor found
no issues that had not been considered during the trial and appeals.” Wright’s petition for
clemency presented numerous mental health issues that he argued had not been presented to the
jury at trial.“° Governor Gilmore disagreed, stating that the “questions regarding Wright’s mental
deficiencies were thoroughly investigated, presented to the jury, and ultimately resolved at
trial."*” Eaton was executed on June 18, 1998,% and Wright’s execution was carried out on
October 14, 1998.”°

Most recently, Governor Robert McDonnell declined to commute the death sentence of Teresa
Lewis, saying, “Lewis’s guilty plea, verdict, and sentence have been reviewed by state and
federal courts. The Supreme Court of Virginia, the United States District Court for the Western
District of Virginia, and the United States Court of Appeals for the Fourth Circuit have
unanimously upheld the sentence in this case.”

Conversely, several Govemors appear to have made independent evaluations of the facts
presented by a death row inmate’s clemency petition. For example, former Governor Wilder
said of new DNA evidence in the case of Earl Washington, Jr., “I am of the opinion that the
newly discovered evidence interjects an important element into the case which neither the jury
that tried the case nor the courts which have reviewed it” considered.*! Governor Wilder
commuted Washington’s death sentence.°”

Former Governor Wamer also commuted the death sentence of Robin Lovitt after a state
employee destroyed evidence from Lovitt’s trial before his appeals were completed.®* Governor
Warner said, “I believe clemency should only be exercised in the most extraordinary
circumstances. Among these are circumstances in which the normal and honored processes of
our judicial system do not provide adequate relief — circumstances that, in fact, require executive
intervention to reaffirm public confidence in our justice system.”>

“5 Eaton, Murderer of 4, Executed After Gilmore Denies Clemency, VIRGINIAN PILOT AND LEDGER-STAR, June
19, 1998, at B9; Virginia Executes Man Who Killed in 1989 When He Was 17, N.Y. Times, Oct. 15, 1998, at A19.
The Fourth Circuit Court of Appeals held that a mental health expert testified at trial that “Wright possessed a
borderline 1.Q. and that he suffered from many mental and emotional problems,” and that “Wright's jury was fully
informed of Wright’s brother’s early death, his absent father, his trouble in school, his depression, and his borderline
intelligence through the testimony of Dr. Samenow [the expert] and his mother.” Wright v. Angelone, 151 F.3d 151,
162 (4th Cir. 1998).
a Young Offender Faces Death, And State Is Urged to Halt It, N.Y. Times, Oct. 15, 1998, at A14; An Application
For Executive Clemency For Dwayne Allen Wright, 1, 10-13, 17-19. Included in Wright’s petition for clemency
was an affadavit from a juror stating that the trial jury was never informed of Wright’s brain damage. Virginia
Executes Man Who Killed in 1989 When He Was 17, supra note 45.
“” Virginia Executes Man Who Killed in 1989 When He Was 17, supra note 45.

Eaton, Murderer of 4, Executed After Gilmore Denies Clemency, supra note 45.

Virginia Executes Man Who Killed in 1989 When He Was 17, supra note 45.

Press Release, Gov. Bob McDonnell, Statement of Govemor McDonnell on the Scheduled Execution of Teresa
ewis (Sept. 19, 2010) available at http://www.governor. virginia.gov/News/viewRelease.cfm?id=388.

Death Sentences commuted in Virginia, supra note 27.

Id.

Green, supra note 35.

Michael Sluss, Warner Grants Clemency Request, ROANOKE TIMES, Nov. 30, 2005, at Al.

gggen sg

264

Finally, in a candid statement about the clemency decision-making process, former Governor
Kaine explained his reasons for commuting the sentence of Percy Levar Walton:

In issuing its ruling, the Fourth Circuit properly limited its consideration to
psychiatric evaluations and other evidence pertaining to Walton’s mental state
during the period from 1997 to 2003. By the time I first reviewed this matter,
shortly before Walton’s scheduled execution in June 2006, three years had passed
since the evidence on his mental competence was presented to the court.

Due to the history of judicial concern about his mental status, I determined that it
was important to have current and independent information about Walton’s
mental condition in order to comply with the law forbidding execution of a
mentally incompetent person. Accordingly, I delayed Walton’s June 2006
execution date until December 8, 2006, for the purpose of conducting an
independent evaluation of his mental condition and competence.

During that six-month period, I was provided with current and independent
information pertaining to Walton’s mental state from a number of sources
including a thorough review of records maintained by the Department of
Corrections, updated evaluations by psychiatrists, and information provided by
persons who had interacted with Walton on a regular basis over a period of years.

In reaching the conclusion to commute Walton’s sentence to life in prison without
possibility of parole, I recognize and respect the inherent obligation of each
branch of government has to afford each to the others the dignity accorded by our
separation of powers. Nonetheless, Article V, Section 12 of the Constitution of
Virginia confers the extraordinary power of clemency on the Govemor which the
ends of justice call for the discharge of such duty, particularly where the exercise
of that extraordinary power is, in my view, mandated by the Constitution of the
United States of America.

While some of the statements G overnors have made in various cases have specifically referenced
the Governor’s independent evaluation of the facts and circumstances, in many other instances
minimal record regarding the Governor’s consideration is available. For this reason, the
Assessment Team is unable to determine whether the Commonwealth is in compliance with
Protocol #1.

Gov. TIMOTHY KAINE, LIST OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF CLEMENCY, S.
Doc. No. 2, 24-27 (2009).

265

B. Protocol #2

The clemency decision-making process should take into account all factors that
might lead the decision-maker to conclude that death is not an appropriate
punishment.

Protocol #2 requires clemency decision-makers to consider “all factors” that might lead the
decision-maker to conclude that death is not the appropriate punishment. These factors include,
but are not limited to

(1) constitutional claims that were not considered on the merits because of
procedural default, statutes of limitations, limits on retroactivity, or the abuse-
of-the-writ doctrine, or because the federal courts showed deference to
possibly erroneous, but not unreasonable, state court nilings;

(2) constitutional claims that were found to have merit but did not involve errors
that were deemed sufficiently prejudicial to warrant judicial relief;

(3) lingering doubts of guilt (as discussed in Protocol #4);

(4) facts that no fact-finder ever considered during judicial proceedings, where
such facts could have affected determinations of guilt or sentence or the
validity of constitutional claims;

(5) patterns of racial or geographic disparity in carrying out the death penalty in
the jurisdiction (as discussed in Protocol #3);

(6) the inmate’s mental retardation, mental illness, and mental competency (as
discussed in Protocol #4); and

(7) the inmate’s age at the time of the offense (as discussed in Protocol #4).°°

Given that the Virginia Governor has broad discretion to grant or deny clemency, the process
used to evaluate requests for clemency is largely unknown and may or may not include all of the
factors listed above. Governors have publicly relied on at least one of the factors listed above to
explain their reasons for granting or denying clemency, specifically lingering doubts of guilt and
an inmate’s mental retardation, mental illness, and mental competency, as discussed later.°”
Former Governor Tim Kaine, for instance, said he would only use the governor’s clemency
power when there was substantial doubt regarding a person’s guilt.°° As described in Protocol
#1, Governors have also considered claims that were never considered by the courts or that
merited examination outside of the courts.

Several Virginia Governors have also considered factors other than those listed above, such as
input from the public and others involved in the case. The opinion of the prosecutor in the case
appears to be particularly influential. In fact, former Governor James Gilmore said, “[t]he
opinion of the prosecutor who tried the case is important to my consideration of what is just in a

%6 Am. Bar Ass’N, DEATH WITHOUT JusTICE: A GUIDE FOR EXAMINING THE ADMINISTRATION OF THE DEATH
PENALTY IN THE UNITED STATES (2002).

57 See infra Protocol #4, notes 90-131 and accompanying text.

58 Hot on the Campaign Trail—Today’s Focus: The Politics of the Death Penalty, DAILY Press (Newport News,
Va.), Oct. 20, 2005, at C1.

266

particular case.”*® In the case of death row inmate Calvin Eugene Swann, Commonwealth’s

Attorney William H. Fuller III publicly said that, had a “true life sentence” been available at the
time of Swann’s trial, he would not have pursued the death penalty. Governor Gilmore
commuted Swann’s sentence.®' Likewise, former Governor Allen commuted William Aristede
Saunders’ sentence to life without parole on the recommendation of the Commonwealth’s
Attorney, the sentencing judge, and the chief of police.” In another prominent case, support for
Robin Lovitt’s clemency petition garnered wide, bipartisan support from notable members of the
Virginia and national legal community. Kenneth Starr represented Lovitt in his clemency
proceedings, and Mark Earley, former Democratic Governor Warner’s opponent in the 2001
gubernatorial election, and attorney John W. Whitehead, founder and president of the Rutherford
Institute, were among Lovitt’s public supporters.

In several instances, members of the victim’s family supported the inmate’s plea for clemency.
However, it appears in only one such case was clemency granted.” Therefore it is difficult to
determine to what degree Govemors consider the opinions of the family members of the victim.
The family of Timothy Dale Bunch’s victim opposed his execution, stating that they had
forgiven him for his crime.® “When [Bunch] killed my sister, they were both too young — no
brain, no heart,” the victim’s brother said, “Ten years later, he’s still in jail. That’s enough. He’s
got a brand new brain and a brand new heart. . .. We forget it. The electric chair is too bad.”
Governor Wilder, however, declined to commute his sentence, and Bunch was executed on
December 10, 1992.°” Similarly, the family of Lonnie Weeks, Jr.’s victim supported his plea for
clemency. However, Governor Gilmore denied Week’s clemency petition. 69 Weeks’
execution took place on March 16, 2000.” In the case of Dennis Wayne Eaton, the victim’s
sister was a vocal supporter of commuting Eaton’s sentence. 7 Tn addition, Eaton’s trial attorney
was not allowed to tell the jury that Eaton would not be eligible for parole if given a life
sentence.” In the time between Eaton’s trial and execution, the Supreme Court ruled that juries
in capital cases must be informed when life without the possibility of parole is an alternative to a
death sentence.’? That decision, however, was not retroactive.’ Governor Gilmore also denied

59 Frank Green, Gilmore Grants Swann Clemency, Sentence Commuted to Life Without Parole, RICH. TIMES-

DISPATCH, May 13, 1999, at Al.
© Id.

Id.
Death Sentences Commuted in Virginia, supra note 27.
Green, supra note 35.
Among the four inmates discussed here, Timothy Dale Bunch, Lonnie Weeks, Jr., Dennis Wayne Eaton, and
Joseph Patrick Payne, only Payne was granted clemency.

Robert Davis, Unlikely Execution-Eve Plea Victim's Family Says Killer Has “Brand New Heart,” USA Topay,
Dec. 10, 1992, at 04A.

Id.
Executed in Virginia, RICH. TIMES-DISPATCH, July 6, 2009, at A8.

Victim's Children Seek Clemency for Killer, VIRGINIA PILOT AND LEDGER-STAR, Sept. 1, 1999, at B6.
m0 Executed in Virginia, supra note 67

Id.

Tom Beyerlein, Anti-Death Penalty Tour Comes to Valley, DAYTON DaAILy News, Sept. 29, 2003, at B1.
Frank Green, Trooper's Killer Dies By Injection, Dennis Wayne Eaton Took 4 Lives During 1989 Rampage,
RICH. TIMES-DISPATCH, June 19, 1998, at B1.
3 Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (“We hold that where the defendant’s future
dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the
sentencing jury be informed that the defendant is parole ineligible.”).

267

Eaton’s petition for clemency.” Finally, the victim’s mother asked for clemency in the case of
Joseph Patrick Payne because she doubted whether Payne was her son’s killer,” Payne’s
sentence was commuted, but it is unclear what part the victim’s mother’s opinion played in the
Governor’s decision.”

Finally, in at least one case, a Virginia Governor considered, but ultimately rejected, issues
related to violations jof the Vienna Convention on Consular Relations when making decisions
regarding clemency.” Angel Francisco Breard, a Paraguayan citizen, was not advised of his
right to consular access after Virginia authorities arrested him for murder.” A fter failing to find
relief in American courts, Breard sought a ruling from the International Court of Justice (ICJ).°°
The ICJ ordered the United States to “take all measures at its disposal to ensure that Angel
Francisco Breard is not executed pending the final decision” of the court. 51 In response, then—
Secretary of State Madeleine Albright supported commuting Breard’s sentence, stating that to go
forward with the execution would “limit our ability to insure that Americans are protected when
living or travelling abroad.”®’ Governor Gilmore, though, rejected the authority of the IC] over
Virginia’s criminal justice system and denied Breard’s request for clemency. 53 Governor
Gilmore stated that the U.S. Department of Justice, “together with Virginia’s attorney general,
ma[d]e a compelling case that the International Court of Justice has no authority to interfere with
[Virginia’s] criminal justice system.”** Breard was executed on April 14, 1998.

While it appears that Virginia Governors have considered some of the above factors, among
others, when making decisions regarding clemency, the absence of statements giving the reasons
for granting or denying petitions for clemency prevents a full evaluation of the factors governors
consider. Therefore, the Virginia Assessment Team cannot determine whether Virginia is in
compliance with Protocol #2.

™ O'Dell v. Netherland, 521 U.S. 151, 153 (1997).

Eaton, Murderer of 4, Executed After Gilmore Denies Clemency, supra note 45

Peter Finn, Va. Woman Asks Clemency for Inmate Convicted of Killing Her Son, WASH. Post, Oct. 31, 1996, at
1

Death Sentences Commuted in Virginia, supra note 27
7% See generally Vienna Convention on Consular Relations, Apr. 24, 1963, 596 U.N.T.S. 261.
, Application of the Republic of Paraguay, (Para. v. U.S.), 1998 I.C J. 248 (Apr. 3).
Id.
81 Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, 1998 I. C.J. 248, 258 (Apr. 9).
®2 Asha Rangappa, The Power to Pardon, the Power to Gain, N.Y. TIMES, Feb. 3, 2001, at A13.
Id.

®4 Frank Green and Jamie C. Ruff, Breard Executed Despite Pleas from U.S., U.N. Supreme Court Denied Request

for Stay, RICH. TIMES-DIsPATCH, Apr. 15, 1998, at Al.
85 Executed in Virginia, supra note 67.

268

C. Protocol #3

Clemency decision-makers should consider as factors in their deliberations any
patterns of racial or geographic disparity in carrying out the death penalty in
the jurisdiction, including the exclusion of racial minorities from the jury panels
that convicted and sentenced the death row inmate.

Although several inmates have presented issues of racial discrimination in their clemency
petitions, it does not appear that any petition for clemency in Virginia has been granted based on
racial or geographic disparity in the application of the death penalty. For example, one A frican-
American inmate, Johnny Watkins, Jr, was sentenced to death in Danville County for the
murders of two white convenience store clerks.°° The two juries that sentenced him to death
were both composed of all-white jurors.’ In his clemency petition, Watkins argued that
“Danville never has sentenced to death any white person,” and that Watkins “was sentenced to
die by juries from which all black citizens had been systematically excluded.”®® However,
former Governor George Allen, in denying Watkins’ plea for clemency, did not provide detailed
reasons for his decision, so it is unclear whether the Governor considered patterns of racial
disparity in his evaluation of the petition." The Virginia Assessment Team is, therefore, unable
to determine if the Commonwealth is in compliance with Protocol #3.

D. Protocol #4

Ch decisi kers should ider as factors in their deliberations the
inmate’s mental retardation, mental illness, or mental competency, if applicable,
the inmate’s age at the time of the offense, and any evidence relating to a
lingering doubt about the inmate’s guilt.

Considerations of Mental Retardation, Mental Illness, or Mental Competency

While neither the Governor nor the Virginia Parole Board is required to consider an inmate’s
mental retardation, mental illness, or mental competency when making clemency decisions, on
several occasions Virginia Governors have taken such factors into account.

Death row inmate Calvin Eugene Swann was granted clemency in 1999 by former Governor
James Gilmore, the only instance in which Governor Gilmore commuted a death sentence.”
Swann’s long history of schizophrenia and evidence that he was not taking his medications when
he committed the crime persuaded Governor Gilmore to grant Swann clemency.*! Govemor

8° Bob Piazza, Watkins Executed for Two Slayings Governor Refused Plea for Clemency, RICH. TIMES-DISPATCH,

Mar. 4, 1994, at B1.
87 Frank Green, Clemency Petition Says Racism Tainted Process Allen Asked To Spare Danville Killer's Life,
RIcH. TIMES-DISPATCH, Feb. 24, 1994, at B5.

Id.

Piazza, supra note 86 (“Allen studied Watkins’ clemency petition for a week and concluded the case didn’t
warrant his intervention, said Allen spokesman Ken Stroupe.”).
°° Commutations in Capital Cases on Humanitarian Grounds, DEATH PENALTY INFO. CTR,
http://www.deathpenaltyinfo.org/clemency (last visited June 7, 2013).
°\ Elizabeth Rapaport, Straight Is the Gate: Capital Clemency in the United States from Gregg to Atkins, 33 N.M.
L. REV. 349, note 75 (Spring 2003); Green, supra note 59.

269

Gilmore said Swann’s behavior “was nothing short of bizarre and totally devoid of rationality.”°

Moreover, the Governor noted Swann’s jury had been misinformed of Swann’s competency to
stand trial.

Just one year before granting Swann clemency, Governor Gilmore had denied clemency for
another death row inmate, Dwayne Allen Wright, who had also presented issues of mental
competency in his clemency petition. In his plea for clemency, Wright’s attorneys detailed
numerous mental health issues, including brain damage at birth and that Wright had been
committed to a mental hospital at age thirteen. The request for clemency also claimed that
evidence of Wright’s mental health had not been presented to the jury. Governor Gilmore,
however, concluded that the “questions regarding Wright’s mental deficiencies were thoroughly
investigated, presented to the jury, and ultimately resolved at trial.”

Former Governor Timothy Kaine has also granted clemency based on the mental health of a
death row inmate. In 2008, the Governor commuted Percy Levar Walton’s death sentence
because serious mental illness rendered Walton incompetent to be executed.”’ Explaining his
decision, Governor Kaine said, “[o]ne cannot reasonably conclude that Walton is fully aware of
the punishment he is about to suffer and why he is to suffer it.”°° Then-Attorney General Robert
McDonnell, though, opposed Kaine’s decision, saying that the courts had determined Walton to
be mentally competent, and that “evidence of an inmate’s competency is more effectively
evaluated by a judicial officer.”

Considerations of Age at the Time of the Offense

Several Virginia Governors have taken an inmate’s age at the time of the offense into
consideration when deciding to grant or deny clemency.

Former Governor Gilmore considered Dwayne Allen Wright’s petition for clemency based in
part on the fact that Wright was seventeen at the time he committed the crime.! Ultimately,
Governor Gilmore rejected Wright’s petition. “Today [Wright] is 26. He is not a child, nor is he
a model prisoner.” Wright was the first t juvenile offender executed in Virginia since the
Commonwealth reinstated the death penalty.’

92
93
4

Green, supra note 59.
Id.

Young Offender Faces Death, And State Is Urged to Halt It, supra note 46; An Application For Executive
Clemency For Dwayne Allen Wright, 1, 10-13.

%5 An Application For Executive Clemency For Dwayne Allen Wright, 13, 17-19.

% Virginia Executes Man Who Killed in 1989 When He Was 17, supra note 45.

57 Commutations in Capital Cases on Humanitarian Grounds, DEATH PENALTY INFO. CTR,
http: //www.deathpenaltyinfo.org/clemency (last visited June 7, 2013).

Jerry Markon, Va. Governor Commutes Death Sentence, WASH. Post, June 10, 2008, at B1.

Id. Frank Green, Triple murderer spared from execution by Kaine, RICH. TIMES-DIsPATCH, June 10, 2008.

100 Virginia Executes Man Who Killed in 1989 When He Was 17, supra note 45.

11 Rapaport, supra note 91 at 360.

1 Virginia Executes Man Who Killed in 1989 When He Was 17, supra note 45; Wright was both sentenced and
executed before the Supreme Court decided Roper v. Simmons. 543 U.S. 551 (2005). Since Wright’s execution,
Virginia has executed two other men convicted of crimes committed as juveniles. Douglas Christopher Thomas was
executed on January 10, 2000, and Steven Roach was executed three days later on January 13, 2000. Both were

99

270

Former Governor Kaine also took Percy Levar Walton’s age into account when deciding to grant
his plea for clemency. Although Walton’s mental health, and not his age, at the time of his crime
was the determining factor in commuting his sentence, Governor Kaine did note that “the
[Supreme] Court has ruled that the C onstitution forbids executing an individual who . . . commits
a capital crime under the age of 18 years old. . . . In this instance, Walton committed these
murders less than two months past his eighteenth birthday.” 13

Lingering Doubt of Guilt

Lingering doubt about a death row inmate’s guilt appears to be the single most determinative
factor in predicting whether an inmate’s plea for clemency will be granted or denied. The Joint
Legislative Audit and Review Commission found that between 1977 and 2001, thirty. eight
percent of Virginia clemency petitions for capital crimes presented claims of innocence.’ Of
those petitions, seventeen percent were granted, in comparison to five percent of petitions
granted that presented claims other than innocence.’

In at least four cases since Virginia reinstated the death penalty, Governors have granted
clemency based on evidence that the inmate may not have committed capital murder. The first,
Joseph M. Giarratano, confessed to two murders which he had no memory of committing.’°° His
attorneys argued that the evidence at the scene and Giarratano’s contradictory confessions
pointed to someone else as the killer."°’ Former Governor Wilder granted Giarratano a
conditional pardon in 1991, but, “[w]hile sparing Giarratano’s life, Wilder said the prison inmate
must continue to serve his term until he is eligible for parole . . . or seek a retrial” from then-
Attorney General Mary Sue Terry.’ Temy elected not to retry him.!°” While Governor Wilder
did not explain his reasons for granting Giarratano clemency in detail, the Governor’s report to
the General Assembly listed “the facts and circumstances surrounding [Giarratano’s] arrest and
conviction, his numerous judicial appeals, and the evidence presented by the Attorney General
and defense counsel” as compelling reasons for commuting the sentence. ad

Giarratano’s case also received widespread support from the public. Governor Wilder’s office
received over 500 letters a day supporting clemency and at one point, the Governor’s office had

seventeen at the time they committed their crimes. Execution of, Juveniles i in the U.S. and other Countries, DEATH
PENALTY INFO. CTR., http://www.deatt org -j il d-other-countries, (last visited Sept.
10, 2012).

03" “Gov. TIMOTHY KAINE, LIST OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF CLEMENCY, S.
Doc. No. 2, 26 (2009).

1 J. Lecis. Aupit & REV. COMM’N, VA. ASSEMB.: REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL PUNISHMENT, at
119, 122 (2002).

105 Yd. at 123.

i Death Sentences Commuted in Virginia, supra note 27

18 Id.; Tyler Whitley, Pardon Thought to Get Wilder Off Political Hot Seat, RIcH. TIMES-DisPaTcH, Feb. 20,
1991, at 7. Joseph Giarratano’s case is also notable as the landmark Supreme Court case providing that inmates are
not entitled to counsel when seeking post-conviction relief. Murray v. Giarratano, 492 U.S. 1 (1989).

109 Death Sentences Commuted in Virginia, supra note 27.

4° Gov. L. DOUGLAS WILDER, LIST OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF CLEMENCY,
S. Doc. No. 2 (1992).

271

received 5,475 letters supporting Giarratano and only sixty-one letters in favor of carrying out
his death sentence."?

Governor Wilder also commuted the sentence of death row inmate Herbert Russell Bassette due
to doubts about Bassette’s guilt.!? Bassette’s attorneys presented the Governor with evidence
that several witnesses had lied when they testified that Bassette was the gunman, and that no
physical evidence connected Bassette to the murder.'’? In light of this evidence, Governor
Wilder stated that he “could not in good conscience erase the presence of a reasonable doubt and
fail to employ the powers vested in him as Governor to intervene.”!"4

In 1994, Governor Wilder commuted the death sentence of Earl Washington, Jr.'"° New DNA
testing completed after Washington’s conviction raised doubts of his guilt.!"5 The Governor
reported to the Virginia Legislature that he

was of the opinion that the newly discovered evidence interjected an important
element into the case which neither the jury that tried the case nor the courts
which have reviewed it since the trial have had the opportunity to consider. Had
that opportunity arose, the Governor was of the opinion that their opinions as to

the appropriate conclusion may have been different.'!”

However, the Governor said he was not completely convinced of Washington’s innocence. 18
Governor Wilder offered Washington two choices. The first was a commutation of his sentence
to life in prison.'"® However, this option would have precluded Washington from continuing to
pursue his claim of innocence under a new evidence procedure specifically for death row
inmates.'”° The second option was to stay on death row and continue his appeals based on his
claim of actual innocence.'”! Washington chose the commutation.

Later, in 2000, former Governor Gilmore granted Washington a pardon for his murder
conviction.'?? While the pardon guaranteed Washington’s release from prison, it did not erase

11 Warren Fiske, Wilder Ponders Lonely Decision of Life or Death; Politics Plays No Part in This, Governor Says,
VIRGINIAN PILOT AND LEDGER-STAR, Feb. 17, 1991, at A10.
42" Gov. L. DOUGLAS WILDER, LIST OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF CLEMENCY,
S. Doc. No. 2 (1993); Larry O’Dell, Wilder Grants Inmate Clemency: Death Sentence Reduced to Life, DAILY
Press (Newport News, Va.), Jan. 24, 1992, at C1.
113 Arthur Hodges, Bassette Escapes His Date With Death, RicH. TIMES-DisPATCH, Jan. 24, 1992, at A1.
‘4 Gov. L. DOUGLAS WILDER, LIST OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF CLEMENCY,
S. Doc. No. 2 (1993); O’Dell, supra note 112.
5 Death Sentence Is Commuted, N.Y. TIMES, Jan. 16, 1994.
46 Alan Cooper, Odds For Killer Don't Look Good; Only Unequivocal Pleas of Innocence Have Succeeded, RICH.
Times-DIsPATCH, July 5, 1992, at Al.

7 GoverNor L. DOUGLAS WILDER, List OF PARDONS, COMMUTATIONS, REPRIEVES AND OTHER FORMS OF
CLEMENCY, S. Doc. No. 2 (1994).
8 Peter Baker, D eath-Row Inmate Gets Clemency; Agreement Ends Day of Suspense, WASH. PosT, Jan. 15, 1994,
at A01.
19

120 14.

1 1q.
12 14

"3 Bric M. Freedman, Ear! Washington's Ordeal, 29 HorsTRA L. REV. 1089, 1112 (2001).

272

the conviction from his record.“ Ultimately, Governor Kaine granted Washington an absolute
pardon in 2007." An audit of Virginia’s crime lab found errors in the analysis of DNA
evidence used against Washington and that the DNA evidence actually identified another person
as the perpetrator.’° Governor Kaine said, “[iJt is now evident that Mr. Washington was and is
innocent of the crimes against Mrs. Williams. I have decided it is just and appropriate to grant
this revised absolute pardon that reflects Mr. Washington’s innocence.”

Finally, former Governor George Allen granted clemency to Joseph Patrick Payne, Sr. in
1996.8 Although Governor Allen said he did not believe Payne was innocent, he commuted the
death sentence to life without parole because of doubts raised about the accuracy of the evidence
used to convict Payne. 19 After the trial, it was discovered that the witness central to the case
may have perjured himself in testifying against Payne, and that inmates who had wished to
testify on Payne’s behalf had not been called at trial.'°° Allen conditioned the commutation on
Payne’s agreement not to seek a new trial.!°!

Although there is no requirement that Virginia’s clemency decision-makers consider such factors
as mental health, age at the time of the offense, or lingering doubts of guilt, several Governors
have taken these factors into account. It appears Virginia is largely in compliance with Protocol
#4. Nevertheless, it is troubling that in all but one case where clemency has been granted based
on doubts of guilt, Governors have imposed conditions that hinder the inmate from further
pursuing his claim of actual innocence.

E. Protocol #5

Ch decisi kers should ider as factors in their deliberations an
inmate’s possible rehabilitation or performance of significant positive acts while
on death row.

Because the Govemor is not required to take any specific factors into account when making
his/her decision to grant or deny clemency, and because of the opaque nature of the clemency
decision-making process, it is unclear whether Virginia Governors consider an inmate’s
rehabilitation while on death row. Nevertheless, in at least three instances, inmates have sought
clemency based in part on rehabilitation or positive acts while incarcerated. Two of these
inmates, Teresa Lewis and Wilbert Lee Evans, were denied clemency. The other, William
Aristede Saunders, was granted a commutation. !*?

oa Michael Felberbaum, US Governor Proclaims Innocence of Former Death Row Inmate, AP, July 7, 2007.
° Id

26 Christina Nuckols, Coalition Asks Warner to Order DNA Retests for Death Row Cases, VIRGINIAN PILOT AND
LEDGER-STAR, June 23, 2005, at 1.
27 Felberbaum, supra note 124,

128 Mike Allen, Virginia Prisoner Receives Rare Mercy on Death Row, N.Y. Times, Nov. 10, 1996, at 20.
Id

129
130
131
132

Death Sentences Commuted in Virginia, supra note 27.
Id.
Hammack, supra note 24. Joe Jackson, Two Who Were Executed: Wilbert Lee Evans, VIRGINIAN PILOT AND

LEDGER-STAR, June 27, 1994, at A5..
‘83 Death Sentences Commuted in Virginia, supra note 27.

273

Teresa Lewis had been sentenced to death in 2003.°* Fluvanna Correctional Center chaplains
and other inmates noted that, while incarcerated, Lewis had become a mentor to many women in
prison and had started an unofficial ministry for inmates.'*° Former Fluvanna Chaplain Lynn
Litchfield wrote to Governor McDonnell asking him to commute Lewis’ sentence because of her
positive acts towards other incarcerated women, stating “many women would report to me how
sweet [Lewis] was, how helpful she was, how she listened, and how she pointed them in the right
directions with their own faith journeys.”!° Governor McDonnell denied Lewis’ petition for
clemency, and she was executed on September 23, 2010.!°’ Governor McD onnell noted several
reasons for refusing to grant clemency, although no mention was made of whether the Governor
considered her positive acts while incarcerated.'** Therefore, it is difficult to determine what
part Lewis’ positive acts played in the Governor’s determination.

While Wilbert Lee Evans was incarcerated on death row at Mecklenburg Correctional Center,
other inmates staged the largest escape from a prison death row in U.S. history.’ During the
breakout, Evans protected twelve prison guards and two nurses from the escapees, who were
armed with knives.” Despite Evans’ actions, former Governor Wilder declined to grant him
clemency, and his execution was carried out on October 17, 1990.'*"

Former Governor Allen, however, granted clemency to William Aristede Saunders. 12 Ina letter
to Governor Allen, Saunders’ prosecuting attorney, William Fuller, noted Saunders’ clean prison
record since his sentencing, 448 and Saunders” sentencing judge wrote to Allen that it would be “in
the best interest of justice” to commute Saunders’ sentence in light of his nonviolent behavior in
prison, * However, Fuller also recommended Allen commute Saunders’ sentence because of the
unique circumstances that led him to qualify for the death sentence in the first place.“ A fter
conviction, Saunders’ sentencing hearing was delayed and, while waiting for his hearing, he had
two altercations with prison guards.'“° The sentencing judge used the two incidents to
demonstrate future dangerousness, one of the factors that qualifies a defendant for the death
penalty."*” Fuller wrote to Allen that, had Saunders been sentenced as originally scheduled, the
altercations would not have occurred and there would have been insufficient evidence of future

Ba Hammack, supra note 24.
135 Maria Glod, Woman Who Plotted Deaths of Husband, Stepson Executed, VIRGINIAN PILOT AND LEDGER-STAR,
Sept. 24, 2010, at 1.
a Clemency Urged for Woman with Low IQ on Death Row, Daity REcorD (Momistown, N,J.), Sept. 21, 2010.
‘87 Steve Doane, Teresa Lewis Executed for Role in 2002 Double Shooting, DANVILLE REGISTER & BEE, Sept. 24,
2010.
188 The Governor’s statement details Lewis’ crime, procedural history, and mental health history. Statement of
Governor McDonnell on the Scheduled Execution of Teresa Lewis, available at
http://www. govemor. virginia. gov/News/viewRelease.cfm?id=388.
io Jackson, supra note 132.

Id.

M41

Id.
Death Sentences Commuted in Virginia, supra note 27.
Id.

a Justin M. Norton, Virginia Gov. Commutes Death Sentence; Colorado Gov. Denies Clemency, AP ONLINE,
Sept. 15, 1997.

‘ Death Sentences Commuted in Virginia, supra note 27.
Id

“7 oq,

274

dangerousness to warrant a death sentence.'“® Because information about the factors governors
use to evaluate clemency petitions is largely undisclosed, it is difficult to determine whether
Saunders was granted clemency because of his rehabilitation on death row or for other reasons.

The Assessment Team is unable to determine whether Virginia is in compliance with Protocol #5
because of the lack of information available on the clemency decision-making process. While
rehabilitation is clearly presented as an issue in death row inmates’ clemency petitions, whether
it has bearing on the Governor’s decision to grant or deny clemency in death penalty cases is
uncertain.

F. Protocol #6

In clemency proceedings, death row inmates should be represented by counsel
and such counsel should have qualifications consistent with the American Bar
Association Guidelines on the Appoi and Performance of Defense Counsel
in Death Penalty Cases (ABA Guidelines).

Protocol #7

Prior to clemency hearings, death row inmates’ counsel should be entitled to
compensation and access to investigative and expert resources. Counsel also
should be provided sufficient time both to develop the basis for any factors upon
which clemency might be granted that previously were not developed and to
rebut any evidence that the State may present in opposing clemency.

There is no right to counsel in Virginia clemency proceedings. While Virginia inmates
represented by federally-appointed counsel during federal habeas proceedings may he
represented by federally-appointed counsel in subsequent state clemency proceedings, such
representation is not required or guaranteed.'*° In practice, attomeys from the Virginia Capital
Representation Resource Center (VCRRC) frequently continue to represent many death row
inmates through clemency proceedings.’ VCRRC attorneys, who specialize in post-trial
investigation of and representation in capital cases, may possess many of the necessary skills
required of effective clemency representation;'®' however, Virginia has not adopted any
standards regarding qualifications for attorneys during clemency proceedings.

Compensation of Clemency Counsel

VCRRC attomeys who represent death row inmates during clemency proceedings are salaried
employees.” Death row inmates represented through their clemency proceedings by attorneys

M8 14

49 See generally Harbison v. Bell, 129 S.Ct. 1481 (2009).

Vai Capital Representation Resource Ctr. (VCRRC) Survey Response, provided by Robert E. Lee, Exec. Dir.,
VCRRC, to Paula Shapiro, 1, 7 (Apr. 5, 2012) (on file with author) [hereinafter VCRRC Survey Response];
Interview by Mark Pickett and Paula Shapiro with Robert E. Lee, Exec. Dir, VCRRC (Apr. 11, 2012) (on file with
author) [hereinafter VCRRC Interview].

‘5! VCRRC Survey Response, supra note 150, at 7; VCRRC Interview, supra note 150.

‘8 VCRRC Interview, supra note 150. The current compensation rate for attorneys appointed for federal habeas
proceedings is $178 per hour. 18 U.S.C. § 3599 (providing $178 an hour).

219

from VCRRC have access to that organization’s single investigator, who also serves as its
mitigation specialist in all capital cases handles by VCRRC.'*°

As described above, federal law also permits, but does not require, counsel appointed to
represent indigent death row inmates under a state-imposed death sentence in federal habeas
corpus proceedings “to represent their clients in state clemency proceedings .. . .”!°* If such
counsel is able to continue representing their client through clemency proceedings, counsel is
entitled to access to experts and investigators to prepare for those proceedings. '°°

Timing of Clemency Investigation and Presentation

In several instances, it appears that counsel for death row inmates in Virginia struggled to find
sufficient time to prepare clemency petitions.'°° For instance, the Virginia Coalition on Jails and
Prisons (VCJP)—which voluntarily undertook representation of some death row inmates at
clemency until it closed in 1994'°’—had great difficulty recruiting counsel to represent Edward
Benton Fitzgerald.’* Fitzgerald found himself without representation six months before his
scheduled execution when his attorney resigned from the public defenders’ office to go into
private practice.°? VCJP located two attorneys willing to take on the case only sixteen days
before Fitzgerald’s execution. One of Fitzgerald’s attorneys, Barry Weinstein, said, “[t]here
wasn’t any law firm in the entire Virginia community that was willing to represent Mr.
Fitzgerald.”!>! Fitzgerald’s new attorneys asked the Virginia Attorney General’s Office to
postpone the execution to give them more time to prepare his clemency petition.’ It appears
that request was not granted'® and Fitzgerald was executed on July 23, 1992.’

In 1998, attomeys for death row inmate Dwayne Allen Wright also noted the limited time they
had to devote to Wright’s case. In the preface to Wright’s clemency petition, the attorneys
explained that

‘53 VCRRC Interview, supra note 150. See Chapter Eight on State Habeas Corpus Proceedings for a description of
the lack of investigative, mitigation, and expert services available during capital habeas proceedings in Virginia.

‘St Harbison v. Bell, 556 U.S. 180, 193 (2009).

85 See id. at 183-84.

156 In 1992, the Virginia state attorney general’s office stated that “no death row inmate ha[d] gone to the electric
chair without the services of an attorney” since Virginia reinstated the death penalty. Peter Bacque, Next Walk
Down Death Row Started 12 Years Ago, RICH. TiMES-DIsPATCH, July 5, 1992, at A6. However, it is unclear
whether this ition through clemency proceedings, or whether counsel was provided
by the state or by an outside organization.

157 Frank Green, Death Penalty Foes Endure Rough Season, Financial, Political Climates Unwelcome, RICH.
TiMES-DISPATCH, Mar. 27, 1994, at B1.

158 Bacque, supra note 156.

‘88 Mike Allen, “Flat-Out Mercy” May Be Last Plea, Attorneys to Take Death-Penalty Case, RICH. TIMES-
DISPATCH, July 8, 1992, at B1.

160 Id.

161 Iq.
12 Iq.

163 See id.; see also Rapist-Murderer Executed in Virginia, S.F. CHRON., July 24, 1992, at E7 (“A man was
executed in Virginia’s electric chair last night.”).
‘4 Rapist-Murderer Executed in Virginia, supra note 163.

276

Counsel for Dwayne have been extremely limited in their ability to provide to the
Governor a comprehensive and meaningful statement to assist the Governor in his
clemency review. Dwayne’s lead attorney, Douglas Fredericks of Norfolk, has
been representing a client appointed to him by the federal court in a federal capital
murder trial since the beginning of September and has been unable to assist in the
development of clemency at all. ... Co-counsel Rob Lee of the Capital Resource
Center in Richmond has been directly involved in the representation of four
inmates scheduled for execution since the end of July and unable until recently to
devote adequate time to Dwayne’s clemency. Professor Charles J. Ogletree of
Harvard Law School in Cambridge, Massachusetts, who formerly practiced with
the D.C. Public Defender’s office where attorneys once represented Dwayne as a
juvenile, became involved in the case only last week.”

The time constraints placed on counsel representing an inmate at clemency may be due, in part,
to the statutory framework governing when execution dates may be scheduled in the
Commonwealth. Once an inmate’s state habeas petition has been denied, for example, Virginia
law requires an execution date to be scheduled if requested by the Attomey General.’ While
this requirement significantly reduces the amount of time an inmate is permitted to research and
prepare his/her federal habeas petition, it may also contribute to uncertainty regarding the timing
of the clemency decision. In addition, it may divert resources and attention away from
presentation of issues for clemency because the federal appeal must be quickly assembled and
filed.

Finally, there are indications that counsel representing inmates during the clemency process are
not compensated for their work. In the case of Herbert Bassette, his attomey estimated that his
firm had spent over $200,000 worth of billable hours on the case.‘ The firm covered most of
that cost on a pro bono basis.!°°

While Virginia inmates may be represented by the VCRRC, such representation is not
guaranteed. The Commonwealth of Virginia is, therefore, in partial compliance with Protocol
#6. Furthermore, it appears that attorneys may have neither sufficient time nor sufficient
resources to adequately develop clemency petitions on behalf of death row inmates—a result
which may be caused, in part, by Virginia’s practice of issuing an execution warrant before the
exhaustion of legal remedies in the case. Thus, Virginia is not in compliance with Protocol #7.

165 An Application for Executive Clemency for Dwayne Allen Wright, 2 (on file with author).

165 Va. CODE ANN. § 53.1-232.1 (2013).

‘7 On the other hand, if the clemency petition is assembled prior to the conclusion of all federal proceedings, it

may be ani y p ition of issues to be add. d by the Governor.

168" Hodges, supra note 113.
Id.

169

277

G. Protocol #8

Clemency proceedings should be formally conducted in public and presided
over by the Governor or other officials involved in making the clemency
determination.

The Govemor of Virginia is the ultimate decision-maker on any petition for clemency from a
death row inmate.'” The Virginia Constitution requires the Governor to communicate his/her
reasons for granting clemency to the General Assembly,!”! which are available through
Virginia’s Legislative Information System.‘ Other clemency documents, such as clemency
petitions, are considered part of the Governor’s working papers, which need not be made
available to the public.” Others involved in the case, such as defense attorneys, however, may
disseminate documents in their possession at their discretion.

Virginia law does not require the Governor to conduct clemency proceedings in public and the
Governor is not required to meet with the clemency petitioner.!” Notably, the Commonwealth’s
website discussing conditional and absolute pardons warns inmates to be sure to provide all
relevant information in their petitions for clemency because “the petition process does not
include any hearing, meeting or conference with the petitioner or persons on the petitioner’s
behalf.”

In some instances, Virginia Governors have met with a petitioner’s lawyers, while in other cases,
Governors have only met with those parties opposed to clemency. For example, Angel Francisco
Breard’s clemency petition suggests that his attorneys met with former Governor Gilmore’s legal
counsel.!”” Edward Benton Fitzgerald’s attorneys met with former Governor Wilder’s legal
counsel for ninety minutes before the Governor made a decision regarding clemency,'” and

Walter Milton Correll, Jr.’s lawyers met with members of former Governor Allen’s a to

179 Va. Const. att. V, § 12; VA. CODE ANN. § 53.1-29 (2013) (codifying VA. Const. art. V, § 12).

1 Va. Const. art. V, § 12.

VIRGINIA’S LEGISLATIVE INFO. SYSTEM, http://leg1.state.va.us/ (last visited June 17, 2013)

Va. CODE ANN. § 2.2-3705.7(2) (“Working papers’ means those records prepared by or for an above-named
public official for his personal or deliberative use.”). Jochnowitz, supra note 11, at 16.

™ Va. CoDE ANN. § 2.2-3705.7(2) (“Working papers’ means those records prepared by or for an above-named
public official for his personal or deliberative use.”). Jochnowitz, supra note 11, at 16.

%5 The Virginia Parole Board has a policy that “inmates initially eligible for parole consideration shall be given a
personal interview with a parole board member or other representative designated by the board to conduct such
interview,” VA. PAROLE BD. POLICY MANUAL, 2(B)(C) (October 1, 2006). It is uncertain, however, whether this
policy applies to a death row inmate seeking clemency, who is not eligible for parole. VA. CODE ANN. § 53.1-151(B)
(2012) (“Persons sentenced to die shall not be eligible for parole.”). It also does not appear that the Board has
interviewed an inmate seeking clemency in practice, either at the request of a Govemor or under its own authority.
Va. CODE. ANN. § 53.1-231 (2013); VA. CODE ANN. § 53.1-136(5 Ne Va. CODE. ANN. § 53.1-231 (2013).

"%" Conditional Pardons, SEC’Y COMMONWEALTH,

http://www.commonwealth. virginia. GoviJudicialSystem/Clemency/conditionalPardon cfm (last visited June 12,

2013)

‘7 The petition is prefaced by the statement that “Enclosed are five copies of a Petition for Reprieve on behalf of
Angel Breard for the Governor’s consideration. We are looking forward to our meeting this evening.” ALEXANDER
H. SLAUGHTER, WILLIAM G. BROADDUS, DOROTHY C. YOUNG, AND MICHELE J. BRACE, PETITION FOR EXECUTIVE
CLEMENCY OF ANGEL FRANCISCO BREARD (April 9, 1998).

178 Wilder Refuses to Halt Execution of Machete Killer, VIRGINIAN PILOT AND LEDGER-STAR, July 21, 1992, at D5.

278

discuss commutation.'” In at least one case where clemency was requested, a Governor met
with the prosecutor and other individuals opposed to granting clemency, but not with the inmate
himself.’ After Roger Keith Coleman requested clemency, former Governor Wilder’s top aide
met with Thomas R. Scott Jr., the prosecutor who helped convict Coleman, and the widower of
Coleman’s victim.'®! There is no indication the Governor’s Office met with Coleman or his
attorneys.

Because clemency proceedings are not held in public and because Virginia law does not
guarantee an in-person meeting with the clemency decision-maker, Virginia is not in compliance
with Protocol #8.

H. Protocol #9
If two or more individuals are responsible for cl
I dations to cl decisi kers, their decisions or 1
should be made only after in-person meetings with clemency petitioners.

dorich

or for making

Because the Governor of Virginia has sole discretion to grant clemency in Virginia death penalty
cases, and because the Assessment Team knows of no case in which the Govemor authorized the
Parole Board to make a recommendation to the Governor regarding an application for clemency
ina capital case, Protocol #9 is not applicable to the Commonwealth of Virginia.

I. Protocol #10

Clemency decision-makers should be fully educated, and should encourage
education of the public, concerning the broad-based nature of clemency powers
and the limitations on the judicial system’s ability to grant relief under
circumstances that might warrant grants of clemency.

Virginia Governors have taken a variety of factors into account, in particular doubts of guilt,
when deciding to grant or deny clemency in death penalty cases." While it appears that
Governors and their counsel have taken steps to educate themselves, there is no indication that a
formal process exists to educate Governors or their staff on the clemency process.’ This means
that education about the clemency process may change from one gubernatorial administration to
another.

179
18
181
182

Todd Jackson, Roanoke Murderer’'s Execution Set Tonight, ROANOKE TIMES, Jan. 4, 1996, at C1.
Cooper, supra note 116.
Id.

See supra Protocol #4.

183 For example, Walter McFarlane, Chief Policy Advisor and Chief Counsel to Govemor Wilder, described his
first experience evaluating a clemency petition, saying, “When I was appointed by the governor, one of my first
assignments was evaluating a plea for clemency. I quickly recognized that I lacked the requisite knowledge of this
area of the law.” McFarlane, supra note 38. McFarlane stated that he then educated himself by speaking to staff
members of past Governors’ administrations, supplemented by law review articles and treatises. Id. “Slowly,” he
said that he “began to appreciate the law and past case precedent” that allowed him “to draft procedures for future
clemency petitions [he] believed to be appropriate for recommendation to Govemor Wilder. ... Govemor Wilder
reviewed [the] draft, made additions, modifications, and deletions and the procedures for handling clemency
petitions during his tenure were implemented.” Id.

279

Finally, as discussed previously, the public is provided little information on the clemency
process in Virginia. As a result of the lack of transparency surrounding clemency decisions, the
public is uninformed both of the power the Governor possesses to grant or deny clemency and of
the limitations on the courts to grant relief under some circumstances where clemency may be
appropriate. !*

For the foregoing reasons, the Commonwealth of Virginia is in partial compliance with Protocol
#10.

J. Protocol #11

To the maximum extent p clemency determinations should be insulated
from political considerations or impacts.

Virginia Parole Board

The Virginia Constitution gives the Governor ultimate authority to make decisions regarding
clemency.'® Although the Virginia Parole Board is also authorized to evaluate clemenc
petitions and make recommendations to the Governor, such recommendations are not binding. *°
However, because the Governor is not bound to follow a recommendation from the Parole Board
to deny clemency, this may give the Governor greater freedom to independently review
clemency petitions.

Board members, however, serve “at the pleasure of the Governor” and, therefore, may not be
fully insulated from political considerations or impacts.'®’ Members of the Board are appointed
by the Governor, subject to approval by the legislature, and are not subject to any qualifying
criteria aside from the requirement that at least one member be a victim of crime or a
representative of a crime victim’s advocacy group."

184 While the Virginia Parole Board may also be involved in evaluating some clemency petitions, Virginia does not
require Board members to have specific qualifications or knowledge of the clemency process. It requires only that
at least one member of the Board be a representative of a crime victims’ organization or a victim of crime. VA. CODE
ANN. § 53.1-134 (2013). To the best of the Assessment Team’s knowledge, Board members do not receive training
on clemency for death row inmates after they have been confirmed, and neither the Virginia Parole Board Policy
Manual nor the Virginia Parole Board Administrative Process Manual offers guidance as to the factors to be used to
evaluate pleas for clemency in death penalty cases. The Policy Manual, however, provides factors to guide the
Board in determining whether an individual should be released on parole. VA. PAROLE BD., VA. PAROLE BOARD
Poticy MANUAL, 2-5 (October 1, 2006), available at http://www. vadoc.state.va.us/vpb/manuals/pb-policymanual-
1006.pdf. These factors include “mental condition,” “the probability that the individual will lead a law-abiding
life,” and whether the inmate availed him/herself of educational and vocational training opportunities while
incarcerated. Id. at 2, 3.
185 Va. Constr. art. V, § 12. See also VA. CODE ANN. § 53.1-229 (2013).
18° Va. CopE ANN. § 53.1-231 (2013); VA. PAROLE BD., VIRGINIA PAROLE BOARD POLICY MANUAL 25-26
(October 1, 2006), available at http://www.vadoc.state. va.us/vpb/manuals/pb- policymanual-1006.pdf.

187 Va. CODEANN. § 53.1-134 (2013).
188 Va. CODE ANN. § 53.1-134 (2013); VA. PAROLE BD., VIRGINIA PAROLE BOARD PoLicy MANUAL 1 (October 1,
2006) available at http://www. vadoc.state.va.us/vpb/manuals/pb-policymanual-1006.pdf. VA. CODE ANN. § 53.1-
134 (2013).

280

Governor of Virginia

The Governor must report his/her reasons for granting clemency to the Virginia General
Assembly.'® The Govemor is only required to explain his/her reasons for granting clemency,
but not for denying it.!%° As the Governor is the sole decision-maker in clemency cases, it may
limit—to some extent—improper political influence on clemency decision-making. Every
Virginia Govemor since 1990, regardless of party, has granted clemency at least once; although
at the time of publication of this Report, Governor Robert McDonnell has not granted clemency
in any capital case.!°!

Virginia Governors are also limited to one consecutive term in office.!? Term limits may, to
some extent, insulate the Governor from considerations of the political impact of his/her decision
in acase, although most Virginia Govemors elected after the Commonwealth reinstated the death
penalty have later campaigned and been elected to another political post.'®? It does not appear,
however, that these Governors’ decisions to grant or deny clemency have been raised as
important issues in their subsequent campaigns for a new elected position.

For the foregoing reasons, it appears that the Commonwealth is in compliance with Protocol #11.
* KOK

Recommendations

There have been eight grants of clemency in Virginia which, in every case, appear to have been
made after thoughtful deliberation by the decision-maker. The Assessment Team recognizes that

189 Va. CONST. art. V, § 12.

190 See supra note 40; VA. CONST. art. V, § 12.

191 Virginia reinstated the death penalty in 1975 and the Commonwealth’s first execution in the modern death
penalty era was in 1982. See NAT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), DEATH ROW
U.S.A. 6 (Winter 2011), available at http://naacpldf.org/files/publications/D RUSA_Winter_2011.pdf [hereinafter
NAACP, DEATH Row USA]. Governors Gerald Baliles and Charles Robb permitted executions to proceed during
their respective terms and did not commute any death sentence; all other Virginia Governors have commuted at least
one death sentence. See supra notes 26-29 and accompanying text.

182 Va. Const. art. V, § 1.

183 Charles Robb, Virginia Governor from 1982 to 1986, was later the United States Senator from Virginia from
1989 to 2001. Robb, Charles Spittal, (1939 — ), BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS,
http://bioguide.congress. gov/scripts/biodisplay.pl?index=R000295 (last visited Sept. 17, 2012). Douglas Wilder,
Governor from 1990 to 1994, was later the Mayor of Richmond from 2004 to 2008. Will Jones, Wilder Has Hits,
Misses As Richmond Mayor, RICH. TIMES-DISPATCH, Dec. 28, 2008. George Allen, Governor from 1994 to 1998,
was later elected to Virginia’s seat in the United States Senate in 2001. Allen, George, (1952 — ), BIOGRAPHICAL
DIRECTORY OF THE UNITED STATES CONGRESS, http://bioguide.congress.gov/scripts/biodisplay.pl?index=A 000121
(last visited Sept. 17, 2012). James Gilmore, Governor from 1998 to 2002, ran for Senate in 2008 but lost to another
former Virginia Govemor, Mark Wamer (2002 to 2006). Biography, MARK R. WARNER,
http://www.wamer.senate.gov/public/index.cfm/biography (last visited Sept. 17, 2012). Finally, Tim Kaine,
Governor from 2006 to 2010, was elected to Virginia’s 2012 United States Senate seat. See Wesley Hester, A Post
Election Q&A with Tim Kaine, RICH. TIMES-DISPATCH, Nov. 25, 2012. Only former Govemors John Dalton (1977
to 1981) and Gerald Baliles (1986 to 1990) have not pursued political office beyond their terms as Govemor. See
John Dalton, 55, Dies; Ex-Virginia Governor, N.Y. TIMES, July 31, 1986; Suzanne Seurattan, Gov. Gerald Baliles
Named 2012 Hunter B. Andrews Fellow, NEwS & EVENTS, WILLIAM & Mary, (Apr. 3, 2012),
http://www.wm.edu/news/stories/2012/gov.-gerald-baliles-named-2012-hunter-b.-andrews-distinguished-
fellow123.php, (last visited June 17, 2013).

281

clemency is a process that should be flexible and that calling for unlimited transparency in the
clemency decision-making process could make such proceedings more, rather than less,
susceptible to undue political influence. The Assessment Team also notes that it is difficult to
find a model or best practice for clemency as the clemency decision-making is, in many
jurisdictions, shrouded in secrecy or over-politicized.

However, it appears that in some instances Virginia Governors were not fully informed or did
not fully understand the wide-encompassing considerations for clemency, particularly when the
courts did not reach the merits of a particular issue that was later presented in an application for
clemency. In addition, death row inmates petitioning for clemency are not guaranteed counsel.
Attorneys who do undertake clemency representation may have neither sufficient time nor
resources to adequately develop clemency petitions on behalf of death row inmates. This
deprivation may be due, in part, to Virginia’s practice of issuing an execution warrant before the
exhaustion of legal remedies in the case. Thus, Virginia can undertake some reforms to improve
the fairness of clemency proceedings and better ensure that all those involved in the process are
fully informed of their roles and responsibilities.

Counsel

The clemency process “plays a particularly important role in death penalty cases, as it ‘provides
the [government] with a final, deliberative opportunity to reassess this irrevocable
punishment.’”!* In addition, the U.S. Supreme Court has applied due process protection to
clemency proceedings. 15 Given these two imperatives, clemency counsel must assemble “the
most persuasive possible record” for the Governor’s review, while also carefully examining “the
possibility of . . . legal claims asserting the right to a fuller and fairer process.”!°° Thus, the
Assessment Team recommends that Virginia

e Guarantee the timely appointment of counsel for representation at clemency in
death penalty cases;

e Adequately compensate such counsel and ensure adequate resources for
investigative, mitigation, and expert services needed to effectively present a
clemency petition; and

e Promulgate standards regarding qualifications of clemency counsel.'®”

Timing of Execution Warrant

Importantly, clemency is the last opportunity available to evaluate claims that may not have been
presented to or decided by the courts, in addition to an evaluation of the judiciousness of the
death sentence imposed. Thus, Virginia’s practice of setting an execution date prior to the
expiration of time available for filing for state and federal relief—and before all legal

‘ABA, ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31
Horstra L. REV. 913, 936 (2003), [hereinafter ABA Guidelines].

195 See, e.g., Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).

86 ABA Guidelines, 31 HorsTRa L. REv., at 937.

197 ABA Guidelines, Guideline 10.15.2, 31 HorsTra L. REV., at 1088.

282

proceedings have concluded—increases the likelihood that petitions for clemency will not be
adequately researched and presented. Thus, the Commonwealth should adopt a provision that an
execution warrant should not be issued until all available legal proceedings have concluded, or
the time available for filing claims has elapsed. Furthermore, no execution warrant should issue
until the Governor has had an opportunity to evaluate and mule on the petition for clemency.

Statement of Reasons for Grant or Denial of Clemency

Finally, the Virginia Assessment Team believes that it would improve transparency, without
jeopardizing independent review, if the Governor set forth in detail his/her reasons for granting
or denying a request for clemency in death penalty cases. In every case, the statement of reasons
should set out the materials reviewed and individuals interviewed prior to the Governor’s
decision, as well as a detailed explanation of the Governor’s rationale for his/her decision.
Issuance of a public statement of reasons in a capital clemency case would also serve to better
educate the public on the broad-based nature of clemency powers, including the limitations on
the judicial system’s ability to grant relief under circumstances that might warrant clemency.
Public access to the materials reviewed, as well as a full explanation of the basis for a denial or
grant of clemency, would also assist future gubernatorial administrations in making educated
clemency determinations.

283

284

CHAPTER TEN
CAPITAL JURY INSTRUCTIONS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

In virtually all jurisdictions that authorize capital punishment, jurors in capital cases have the
“awesome responsibility” of deciding whether another person will live or die.! Jurors,
prosecutors, defendants, and the general public rely upon state trial judges to present fully and
accurately, through jury instructions, the applicable law to be followed in jurors’ decision-
making. Sometimes, however, jury instructions are poorly written and conveyed. As a result,
instructions may tend to confuse jurors, rather than communicate.”

It is important that trial judges impress upon jurors the full extent of their responsibility to decide
whether the defendant will live or die or to make their advisory recommendation on sentencing.
Some trial court instructions may lead jurors to misunderstand their responsibility or to believe
that reviewing courts independently will determine the appropriate sentence. In some cases,
jurors may conclude that their decisions are not vitally important in determining whether a
defendant will live or die.

Furthermore, courts must ensure that jurors do not act based on serious misimpressions, such as a
belief that a sentence of “life without parole” does not ensure that the offender will remain in
prison for the rest of his/her life. Jurors holding this or other mistaken beliefs may vote to
impose a death sentence because they erroneously assume any lesser sentence eventually will
result in the release of the offender within some number of years.

Jurors also must understand the meaning of mitigation as well as their ability to bring mitigating
factors to bear when considering capital punishment. Unfortunately, jurors can confuse
mitigation with aggravation, or they may believe that they cannot consider evidence as
mitigating unless it is proved beyond a reasonable doubt to the satisfaction of every member of
the jury.

1 Caldwell v. Mississippi, 472 U.S. 320, 341 (1985) (internal quotation marks omitted).

See William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law's Failure to Purge Arbitrariness
from Capital Sentencing, 39 Crim. L. BULL. 51 (2003); see also James Luginbuhl, Comprehension of Judges’
Instructions i in the Penalty Phase of a Capital Trial, 16 Law & Hum. BEHAV. 203, 204 (1992) (listing past research

ing] jurors’ of judges’ instructions”).
See Bowers & Foglia, supra note 2, at 68,

3

285

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW
A. General Provisions on the Selection and Timing of Instructions

Virginia Supreme Court Rules provide that, in a criminal jury trial, the court must “instruct the
jury before [closing] arguments of counsel to the jury.”* In felony trials, the instructions must
also be “reduced to writing.”® The rules further provide that “the parties may submit proposed
instructions at the conclusion of all the evidence.”® The Supreme Court of Virginia has held that
“tilf a proffered instruction finds any support in credible evidence, its refusal is reversible
error.”

The court must also give the parties an opportunity to object to the instructions before the jury is
charged.® To properly preserve an alleged error in jury instruction for appeal, the defendant must
object to the instruction at the time it is proffered.°

B. Applicable Guilt Phase Instructions in a Capital Trial

1. Instruction on Capital Murder

Virginia statutory law defines several types of “willful, deliberate, and premeditated killing[s]”
as capital murder offenses, all of which are eligible for the death penalty.’° The Virginia model
instructions, promulgated by the Model Instruction Committee, provides for jurors to be
instructed on the elements of the offense charged.'’ The instructions further state that

If you find from the evidence that the Commonwealth has proved beyond a
reasonable doubt each of the above elements of the crime as charged, then you
shall find the defendant guilty and shall not fix the punishment until your verdict
has been returned and further evidence is heard by you.

If you find that the Commonwealth has failed to prove beyond a reasonable doubt
any one or more of the elements of the crime, then you shall find the defendant
not guilty of capital murder.

‘ Va. Sup. CT. R. 3A:16(a).
° Id.
8 Va. Sup. Cr. R. 3A:16(b). In addition, “[i]f directed by the court the parties shall submit proposed instructions
to the court at such reasonable time before or during the trial as the court may specify.” Id.

McClung v. Commonwealth, 212 S.E.2d 290, 293 (Va. 1975).

Va. Sup. CT. R. 3A:16(c).
9 Breard v. Commonwealth, 445 S.E.2d 670, 679 (Va. 1994) (citing Va. Sup. Cr. R. 5:25).
10 See VA. CODE ANN. § 18.2-31 (2013). Fora full list of these offenses, see Chapter One.
a Virginia Model Jury Instructions—Criminal, No. G33.100 (2012) (on file with author). The model instructions,
while not mandatory, have been favorably cited by the Supreme Court of Virginia and the Court of Appeals of
Virginia in several cases. See, e.g., Osman v. Osman, 737 S.E.2d 876, 882 (Va. 2013); Pryor v. Commonwealth,
661 S.E.2d 820, 821 (Va. 2008).

Id.

286

2. Instruction on Lesser-Included Offenses

The U.S. Supreme Court has held that in a capital case, the trial court must instruct the jury on
any lesser-included homicide offense that is supported by the evidence.'? First and second
degree murder are lesser included offenses of capital murder under Virginia law.

C. Applicable Penalty Phase Instructions in a Capital Trial
1. Mental Retardation’®

In accordance with the U.S. Supreme Court decision prohibiting the execution of persons with
mental retardation,’ the model penalty phase instructions address cases in which the defendant
raises the issue of mental retardation.'

2. Instruction on Sentencing Determination

In those capital cases in which the prosecution is seeking the death penalty based on both of
Virginia’s statutory aggravating factors, the Virginia model instructions provide as follows:

You have convicted the defendant of a crime which may be punished by death.
{If you find that the defendant has failed to prove by a preponderance of the
evidence that he is mentally retarded,] (Y )ou must decide whether the defendant
shall be sentenced to death or to imprisonment for life or to imprisonment for life
and a fine of a specific amount, but not more than $100,000. Before the penalty
can be fixed at death, the Commonwealth must prove beyond a reasonable doubt
at least one of the following aggravating circumstances:

(1) That, after consideration of his history and background, there is a probability
that he would commit criminal acts of violence that would constitute a
continuing serious threat to society; or

(2) That his conduct in committing the offense was outrageously or wantonly vile,
horrible or inhuman, in that it involved torture, depravity of mind or
aggravated battery to the victim beyond the minimum necessary to accomplish
the act of murder.

If you find from the evidence that the Commonwealth has proved beyond a
reasonable doubt both of these circumstances, then you may fix the punishment of
the defendant at death. But if you nevertheless believe from all the evidence,
including evidence in mitigation, that the death penalty is not justified, then you
shall fix the punishment of the defendant at:

'8 Schad v. Arizona, 501 U.S. 624, 648 (1991).

See VA. CODE ANN. § 18.2-32 (2013).

‘8 For a discussion of mental retardation issues as they relate to capital punishment, see Chapter Thirteen on
Mental Retardation and Mental Illness.

'6 Atkins v. Virginia, 536 U.S. 304 (2002).

uy Virginia Model Jury Instructions—Criminal, Nos. P33.120, P33.121 (2012) (on file with author).

287

(1) Imprisonment for life; or
(2) Imprisonment for life and a fine of a specific amount, but not more than
$100,000.

If you find from the evidence that the Commonwealth has proved beyond a
reasonable doubt either of these circumstances, then you may fix the punishment
of the defendant at death. But if you nevertheless believe from all the evidence,
including evidence in mitigation, that the death penalty is not justified, then you
shall fix the punishment of the defendant at:

(1) Imprisonment for life; or
(2) Imprisonment for life and a fine of a specific amount, but not more than
$100,000.

If the Commonwealth has failed to prove beyond a reasonable doubt at least one
of these circumstances, then you shall fix the punishment of the defendant at:

(1) Imprisonment for life; or
(2) Imprisonment for life and a fine of a specific amount, but not more than
$100,000.

Any decision you make regarding punishment must be unanimous. ’®

The model instructions for cases in which only one aggravating factor is submitted to the jury are
similar.

3. Mitigating Evidence

The model instructions also provide the following additional statement on mitigating evidence:
If you find that the Commonwealth has proved beyond a reasonable doubt the
existence of an aggravating circumstance, in determining the appropriate
punishment you shall consider any mitigation evidence presented of
circumstances which do not justify or excuse the offense but which in faimess or
mercy may extenuate or reduce the degree of moral culpability and punishment.””

4. Meaning of “Imprisonment for Life”

Virginia statutory law requires that “[u]pon request of the defendant, a jury shall be instructed
that” in capital murder cases, “a defendant shall not be eligible for parole if sentenced to
imprisonment for life.”*! As such, the model instructions on life in prison in capital cases states

8 Virginia Model Jury Instructions—Criminal, No. P33.122 (2012) (on file with author).

19 See Virginia Model Jury Instructions—Criminal, No. P33.125 (2012) (on file with author).
sie Virginia Model Jury Instructions—Criminal, No. P33.127 (2012) (on file with author).

21 Va. CODEANN. § 19.2-264.4(A) (2013).

288

at “[t]he words ‘imprisonment for life’ mean imprisonment for life without possibility of
parole.”

a Virginia Model Jury Instructions—Criminal, No. P33.126 (2012) (on file with author).

289

Il. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the state assessment team in its
evaluation of its state’s death penalty system. The Protocols are followed by the Assessment
Team’s analysis of the Commonwealth ’s compliance with the Protocols and, where appropriate,
the As: Team’s rec dation(s) for reform.

A. Protocol #1

Each capital punishment jurisdiction should work with attorneys, judges, linguists,
social scientists, psychologists, and jurors th Ives to eval the extent to which
jurors understand capital jury instructions, revise the instructions as necessary to
ensure that jurors understand applicable law, and monitor the extent to which
jurors understand the revised instructions to permit further revision as necessary.

As with many states, the sentencing process in Virginia is a complex, multi-step process. Jurors
must make findings on aggravating factors, compare mitigating and aggravating evidence, and
then decide whether to impose a sentence of life imprisonment or the death penalty.7 Perhaps
due to this complexity, capital jurors can misunderstand and misapply the law during sentencing
deliberations.”* However, capital jury instructions that clearly explain the applicable law in plain
English that laypersons can understand may help to reduce juror misunderstanding.

Virginia’s Capital Jury Instructions

While Virginia law does not mandate that any particular instructions be given to the jury ina
capital case,”° Virginia’s Model Instruction Committee, whose members are appointed by the
Chief Justice of Virginia,° has developed amodel jury instructions for use in criminal
proceedings, including death penalty cases.’’ Although the model instructions are not
mandatory,”’ they have been favorably cited by the Supreme Court of Virginia and the Court of
Appeals of Virginia in several cases.”

See VA. CODE ANN. § 19.2-264.2-.4 (2013).
4 See, e.g., William J. Bowers et al., Jurors’ Failure to Understand or Comport with Constitutional Standards in
Capital Sentencing: Strength of the Evidence, 46 Crim. L. BuLL. 1147, 1151. 52 (2010) {summarizing certain

findings of the Capital Jury Project, including that that jurors “[fJail[] to ” and
“{mlistakenly believ[e] the death penalty is required by law”); Luginbuhl, supra note 2, at 204 (listing “[p]ast
research . ing] jurors’ ion of judges’ instructions”).

°° The only exception is that “[u]pon request of the defendant, a jury shall be instructed that for all [capital

murder] offenses committed after January 1, 1995, a defendant shall not be eligible for parole if sentenced to
imprisonment for life.” VA. CODE § 19.2-264.4(A) (2012).

26” Virginia Model Jury Instructions Criminal, LEXISNEXIS,
http://www. lexisnexi log/b sroductdetail jsp?pageN ame=relatedProducts& prodid=6572

# (last visited Apr. 10, 2013).

a Virginia Model Jury Instructions—Criminal, Nos. G33.100, P33.120-P33.127 (2012) (on file with author).

8 Va. CoDE ANN. § 19.2-263.2 (2013) (“A proposed jury instruction submitted by a party, which constitutes an
accurate statement of the law applicable to the case, shall not be withheld from the jury solely for its
nonconformance with model jury instructions.”)

29 See, e.g., Osman v. Osman, 737 S.E.2d 876, 882 (Va. 2013); Pryor v. Commonwealth, 661 S.E.2d 820, 821
(Va. 2008); Gaines v. Commonwealth, 574 S.E.2d 775, 777 (Va. App. 2003); Saunders v. Commonwealth, 523
S.E.2d 509, 510 (Va. App. 2000). But see Turman v. Commonwealth, 667 S.E.2d 767, 771 (Va. 2008) (noting that

290

The Chief Justice of Virginia appoints the members of the Model Instruction Committee to four
year terms.*” Traditionally, the committee has consisted of five judges and five practicing
attorneys.” One judicial member is an appellate judge, and the remaining four are circuit
judges. 2 The attorney members include both criminal and civil litigators with “extensive jury
trial experience.”** In addition, “[t]wo law professors also advise the committee and are present
at the meetings, along with a [publisher] representative, a staff attomey with the Supreme Court
of Virginia and a non-voting attomey from the Office of the Attorney General.”

The committee meets annually to review the criminal instructions.*> Committee members are
“assigned a number of chapters [of the instructions to review] prior to the meeting.”
Individual members are “then responsible for reviewing each instruction and updating it in light
of changes to statutes, case law and making any other suggestions.”*’ The committee also
considers “suggestions forwarded to it by members of the bar and of the judiciary.”**

In drafting and updating its instructions, the committee states that it “is mindful of the need to
make instructions comprehensible to non-lawyers.”*® In particular, the committee reviews
Virginia appellate and trial court cases in which jury instruction confusion was an issue at trial
and considers “whether a change to the instruction is warranted.’“° However, the committee
does not consult with non-attorneys such as linguists, social scientists, psychologists, or former
jurors when drafting and revising its instructions, nor does it conduct any field testing of the
instructions to determine if they are comprehensible before being formally implemented."

uror Confusion in Virginia Cases

It appears that jurors in Virginia death penalty cases experience confusion regarding their roles
and responsibilities in determining the sentence in the penalty phase of a capital case. The
Capital Jury Project has revealed that a substantial number of jurors in Virginia capital cases
have several misconceptions about capital sentencing procedures.*? The Capital Jury Project

the model instructions “suffer[] from a significant defect” with respect to the instruction on flight froma crime scene
as evidence of guilt).

3° Email Interview by Mark Pickett with Judge Stephen R. McCullough, Chair, Va. Model Instruction Comm.
(Apr. 15, 2013) (on file with author).

°!” See id.

3 Id. As of 2013, the judicial members are Stephen R. McCullough (Chair), Stephen Mahan, Melvin Hughes,
Charles Dorsey and Mary Grace O’Brien. Id.

38 Id. As of 2013, the attomey members are Monica Monday, Molly Priddy, Robert Mitchell, Jonathan Fletcher,
and Eric Theissen. Id.

35

% Email Interview with Judge Stephen R. McCullough, supra note 30.

Id. Each member is assigned a different set of chapters before each meeting to ensure that the same member is
not reviewing the same instructions each time. Id.
7

Email Interview with Judge Stephen R. McCullough, supra note 30.
Bowers & Foglia, supra note 2, at 55; What is the Capital Jury Project?, supra note 43.

291

conducts three- to four-hour interviews with jurors who have served in capital trials.“7 Since
1991, it has interviewed 1,198 jurors who have served in 353 capital trials in fourteen states,
including Virginia.“

The Project found, for instance, that 77% of surveyed Virginia jurors erroneously believed that
the jury had to be unanimous in order to consider evidence as mitigating.” Moreover, 53% did
not realize they could consider any evidence as mitigating evidence, and 51% gid not know that
they were not required to find mitigating evidence beyond a reasonable doubt.*®

Many Virginia jurors also misunderstood whether the death penalty was required in a particular
case. In accordance with the U.S. Supreme Court’s decision in Woodson v. North Carolina,”
Virginia law provides that the commission of a particular crime or the existence of a particular
aggravating factor is not sufficient to mandate imposition of the death penalty.“* However, 53%
of surveyed Virginia jurors believed that the death penalty was required by law if they found that
the murder was heinous, vile, or depraved, and 41% believed death was required if they found
that the defendant would be dangerous in the future.*® In reality, these findings are merely
aggravating factors for jurors to consider when determining whether to sentence the defendant to
death.°° More information about juror confusion in Virginia capital cases can be found in
Protocols #3 through #6 of this Chapter.

Conclusion

The Virginia Model Instruction Committee includes judges and lawyers from diverse areas of
practice, and the committee consults with law professors in developing its instructions. The
committee also updates its instructions annually based on new legal developments. However,
the committee does not consult with non-lawyers such as linguists, social scientists,
psychologists, and former jurors. Accordingly, Virginia is in partial compliance with Protocol
#.

‘8 What is the Capital Jury Project?, UNIV. AT ALBANY, http://www.albany.edu/scj/13189.php (last visited Jan.

12, 2012).

Bowers & Foglia, supra note 2, at 55; What is the Capital Jury Project?, supra note 43.

te Bowers & Foglia, supra note 2, at 68.

Id.

“7 See Woodson v. North Carolina, 428 U.S. 280, 301 (1976).

‘8 See Va. CoDE ANN. § 19.2-264.2 (2013) (noting that a death sentence cannot be imposed unless the jury

recommends a death sentence following the finding of an aggravating factor).

‘© Bowers & Foglia, supra note 2, at 73.

50 Va. CODE ANN. § 19.2-264.2 (2013). The statute provides as follows:
In assessing the penalty of any person convicted of an offense for which the death penalty may be
imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after
consideration of the past criminal record of convictions of the defendant, find that there is a
probability that the defendant would commit criminal acts of violence that would constitute a
continuing serious threat to society or that his conduct in committing the offense for which he
stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind or an aggravated battery to the victim; and (2) recommend that the penalty of
death be imposed.

292

Recommendation

The Virginia Assessment Team recognizes the complexities inherent in designing capital jury
instructions that are both comprehensible to laypersons and accurate statements of the law. As
shown by the findings of the Capital Jury Project, however, a significant number of Virginia’s
capital jurors have failed to understand several aspects of Virginia’s capital sentencing
procedure. On some issues, a majority of surveyed j jurors expressed understandings of the law
that contradicted U.S. Supreme C ourt decisions.°

Thus, the Assessment Team recommends that the Virginia Model Instruction Committee revise
its capital jury instructions with respect to issues clearly identified as problematic by the Capital
Jury Project. While revised instructions may not eliminate all misunderstanding and confusion
experienced by capital jurors, revisions to the linguistic formulation of instructions—in addition
to expanding the content of the instructions in some areas—may improve juror comprehension in
many death penalty cases.”

In addition, the Assessment Team recommends that the Model Instruction Committee survey
Virginia circuit court judges regarding the type and frequency of questions that trial courts have
received from deliberating jurors in death penalty cases. These responses may then be used by
the Committee to devise improved linguistic formulations of existing instructions, additional
instructions and definitions of legal terms, and amendments to the logical presentation of the
instructions provided to capital jurors.

Finally, because the committee currently includes a non-voting representative from the Virginia
Attorney General’s office, it also should include a representative from the Virginia Indigent
Defense Commission and/or a certified capital defense attorney to ensure that there is
representation from the capital defense community.

B. Protocol #2
Jurors should receive written copies of “court instructions” (referring to the judge’s
entire oral charge) to consult while the court is instructing them and while

conducting deliberations.

Jurors are often better able to understand the court’s instructions and correctly apply the law
when provided with written copies of the court’s instructions.°? Written instructions are

1

i" See Bowers & Foglia, supra note 2, at 68.

A study on juror comprehension in capital cases in California found that “psycholinguistically improved
instructions that were put in to place in 2006” improved comprehension “ hat” and that “ can
be moderately improved even more by using instructions that provide jurors with thematic and case-specific
examples, presented in a relevant and concrete matter.” DAN SIMON, IN DousT: THE PSYCHOLOGY OF THE
CRIMINALJUSTICE PROCESS 190 (2012).

53 The Honorable B. Michael Dann, “Learning Lessons” and “Speaking Rights”: Creating Educated and
Democratic Juries, 68 IND. L. J. 1229, 1259 (1993); Judge Roger M. Young, Using Social Science to Assess the
Need for Jury Reform in South Carolina, 52 S.C. L. Rev. 135, 177-78 (2000) (noting that 69% of the judges polled
thought that juror comprehension would be aided by giving written instructions after the judge charged the jury and
most believed that it would aid juror comprehension to have the instructions with them during deliberations).

293

particularly helpful in death Penalty cases, as capital jurors are often confused by complex
capital sentencing procedures.**

Virginia Supreme Court Rules state that “[iJn a felony case, the [court’s jury] instructions shall
be reduced to writing.”°*> The rules do not expressly provide that the written instructions must be
given to jurors. In practice, however, it appears that in capital murder and other serious felony
trials, the court typically provides the jury with written copies of instructions after it has
instructed them orally.

Conclusion

Virginia trial courts typically provide jurors with copies of written instructions to consult with
during deliberations. Thus, Virginia is in partial compliance with Protocol #2.

Recommendation

As the entire jury may be provided with only one copy of the court’s instructions, the
Assessment Team recommends that each juror be provided with a copy of the instructions prior
to deliberations.

C. Protocol #3

Trial courts should d fully to jurors’ q' for clarification of
instructions by explaining the al concepts at issue and meanings of words that
may have different meanings in everyday usage and, where appropriate, by directly
answering jurors’ questions about applicable law.

As discussed, national studies have shown that capital jurors often have difficulty understanding
jury instructions.® This confusion can be attributed to a number of factors, such as the use of
complex legal concepts and unfamiliar words without sufficient definitions.°” When trial courts
respond to jurors’ questions about capital jury instructions with substantive answers that clarify
the applicable law, juror comprehension of those instructions often improves.

See supra notes 45-50 and accompanying text.

Va. Sup. CT. R. 3A:16(a).

See VA. Sup. CT. R. 3A:16.

Email from Joseph Flood, Senior Partner, Sheldon & Flood, to Mark Pickett, Apr. 26 & 29, 2013 (on file with
author). Mr. Flood is also a member of the Virginia Death Penalty Assessment Team.

58 Susie Cho, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J. CRIM. L.
& CRIMINOLOGY 532, 549-551 (1994) (discussing juror comprehension, or lack thereof, of jury instructions); Shari
Seidman Diamond & Judith N. Levi, Improving Decisions on Death by Revising and Testing Jury Instructions, 79
JuDICATURE 224, 225 (1996).

°° James Luginbuhl & Julie Howe, Discretion in Capital Sentencing Instructions: Guided or Misguided?, 70 IND.
L. J. 1161, 1169-1170 (1995); Peter Meijes Tiersma, Dictionaries and Death: Do Capital Jurors Understand
Mitigation?, 1995 Uran L. REV. 1, 7 (discussing jurors’ understanding of the concept of mitigating evidence,
including the scope, applicable burden of proof, and the requisite number of jurors necessary to find the existence of
a mitigating circumstance).

294

In one study, for instance, 154 persons in Virginia were selected to participate in mock death
penalty deliberations.” The mock jurors were presented with a factual outline of a capital
murder case and instructed on the law.” The study found that a follow-up clarifying instruction
corrected the misunderstanding of 40% of the mock jurors who erroneously believed that they
were required to impose the death penalty if an aggravating factor was found.” By contrast,
“simply directing the jurors to reread the pattern instruction did nothing to improve their
comprehension.” a

Juror Questions in Virginia Capital Cases

Asa matter of general principle, “[j]uries are presumed to follow their instructions” in Virginia. .

The Supreme Court of Virginia has not determined whether and in what manner a trial court
must respond to a jury’s request for a clarification of instructions. However, a review of capital
cases in Virginia indicates that trial courts typically respond to juror questions by instructing
jurors to review the instructions already given, or by directing them to review a specific
instruction.

In Prieto v. Commonwealth, for instance, the jury submitted the following question to the trial
court during penalty phase deliberations: “Your Honor, regarding the first aggravating
circumstance: ‘constitute a continuing serious threat to society;’ are we to consider that he is
already never likely to leave prison or should we consider the possibility of him walking the
street as a free man?””®” Defense counsel requested that the court refer the jurors to a specific
instruction that read “[t]he words ‘imprisonment for life’ means imprisonment for life without
possibility of parole.”® Instead, the court responded with a note that read, “I refer you back to

50 Stephen P. Garvey, Sheri Lynn Johnson & Paul Marcus, Correcting Deadly Confusion: Responding to Jury

Inquiries in Capital Cases, 85 CORNELL L. REV. 627, 633-35 (2000).
Id.

82d. at 639. The clarifying instruction stated, “Even if you find that the State has proved one or both of the

aggravating factors beyond a reasonable doubt, you may give effect to the evidence in mitigation by sentencing the

defendant to life in prison.” Id. at 635.

83 Id. at 638.

6 Green v. Young, 571 S.E.2d 135, 139 (Va. 2002) (quoting Zafiro v. United States, 506 U.S. 534, 540 (1993)) (a

non-capital case).

% The Court of Appeals of Virginia has, however, held that “[i]t is proper for a trial court to fully and completely

respond to a jury’s inquiry conceming its duties.” Marlowe v. Commonwealth, 347 S.E.2d 167, 171 (Va. App.

1986).

5 See, e.g., Weeks v. Angelone 528 U.S. 225, 229 (2000) (instructing jurors, in a Virginia case, to review the

“second paragraph of Instruction #2”); Prieto v. Commonwealth, 682 S.E.2d 910, 917 (Va. 2009) (responding to a

juror question with a note that read “I refer you back to the evidence that has been admitted and the instructions of

law”); Wolfe y. Commonwealth, 576 S.E.2d 471, 486 (Va. 2003) (“[t]he circuit court instructed the jury that it must

proceed on the instructions that the jury had already received from the court”); Bell v. Commonwealth, 563 S.E.2d

695, 716 (Va. 2002) (instructing jurors that they “would have to rely on the evidence that they heard, and the

instructions already presented in deciding the punishment”);

57 Prieto, 682 S.E.2d at 917.

8 Id. at 917 n.3,

295

the evidence that has been admitted and the instructions of law.”

The jury subsequently
sentenced the defendant to death.””

In Weeks v. Angelone, the U.S. Supreme Court considered whether a Virginia trial court’s
response to the jury’s question in a capital case was appropriate.” In the penalty phase of the
trial, the prosecution sought to prove both aggravating circumstances available under Virginia
law.” During deliberations, the jury submitted the following question to the court:

If we believe that [defendant] Lonnie Weeks, Jr. is guilty of at least 1 of the
alternatives [i.e. aggravating circumstances], then is it our duty as a jury to issue
the death penalty? Or must we decide (even though he is guilty of one of the
alternatives) whether or not to issue the death penalty, or one of the life
sentences? W hat is the Rule? Please clarify?”

The trial court’s resp jonse to the question, however, merely directed the jurors to review the
relevant instruction.”* Two hours later, the jury retumed a verdict sentencing the defendant to
death.” The U.S. Supreme Court upheld the sentence, noting that “[a] jury is presumed to
follow its instructions.””°

As discussed in Protocol #1, the findings of the Capital Jury Project indicate that the question
raised by jurors in Weeks is a common area of confusion for capital jurors in Virginia: 53% of
surveyed Virginia jurors erroneously believed that the death penalty was required by law if they
found that the murder was heinous, vile, or depraved, and 41% erroneously believed death was
required if they found that the defendant would be dangerous in the future (i.e., a continuing
serious threat to society).””

Relatedly, the model instructions do not include definitions for several legal terms central to the
decision to sentence the defendant to death or life in prison. The model instructions do not

° Id.
70 Id. at 913. On direct appeal, the Supreme Court of Virginia declined to consider the issue, stating that it had not
been preserved for review. Id. at 918.
71 Weeks v. Angelone, 528 U.S. 225, 227 (2000). While the issue was also raised on direct appeal, the Supreme
Court of Virginia summarily dismissed the claim. See Weeks v. Commonwealth, 450 S.E.2d 379, 390 (Va. 1994)
(‘In conclusion, defendant raises a number of miscellaneous issues dealing with evidence, jury instructions, and
inquiries by the jury during its deliberations. We have considered all the arguments in support of those issues and
conclude that none has any merit.”)
2 Id. at 228.
73 Id. at 229. The jury also submitted a question regarding the meaning of life in prison. Id. at 228. This issue is
discussed in Protocol #4, below.
™4 Id. The instruction read as follows:
If you find from the evidence that the Commonwealth has proved, beyond a reasonable doubt,
either of the two altematives, and as to that altemative, you are unanimous, then you may fix the
punishment of the defendant at death, or if you believe from all the evidence that the death penalty
is not justified, then you shall fix the y of the dant at impri for life, or
imprisonment for life with a fine not to exceed $100,000.

Id.

Id. at 230.

Id. at 234 (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
Bowers & Foglia, supra note 2, at 73.

296

define the meaning of “aggravating” for the jury.” Nor do the instructions define terms
constituting aggravation, such as the definition of a “probability” that the defendant would
commit criminal acts of violence that would constitute a continuing serious threat to society,” or
legal terms contained in the second aggravator, such as “depravity of mind,” “torture,” or
“outrageously or wantonly vile.”®° The model instructions do, however, define “mitigating
evidence” as “evidence presented of circumstances which do not justify or excuse the offense but
which in fairness or mercy may extenuate or reduce the degree of moral culpability and
punishment.”*!

Conclusion

It appears that Virginia trial courts do not respond to jurors’ requests for clarification of
instructions by explaining legal concepts and terms or by directly answering questions about the
applicable law. Instead, courts typically tell jurors to review the instructions they have already
received, which often does little to improve comprehension of instructions.” Accordingly,
Virginia is not in compliance with Protocol #3.

Recommendation

The Assessment Team acknowledges that some juror inquiries present a difficult task for the trial
court, as an incorrect or incomplete response to jurors’ inquiries could result in a reversal on
appeal. Nevertheless, there may be instances where trial courts can provide more direct answers
to juror questions. This is particularly important in instances in which jurors—like those in the
Weeks case above—express confusion over applicable law, such as whether the jury is required
to sentence the defendant to death. Trial judges should be encouraged to respond meaningfully
to jurors’ inquiries about the applicable law in the case.

As discussed in Protocol #1, however, Virginia capital jurors have frequently failed to
understand many aspects of capital sentencing law. Thus, juror questions and confusion are
likely to persist unless Virginia’s capital jury instructions are revised to enhance clarity, jurors
are instructed in a more logical presentation of alternatives, and judges are more willing to
respond to juror inquiries regarding questions of law. Indeed, clearer instructions in the first
instance may help reduce the persistence of many questions of law that would otherwise arise.

B

a Bowers & Foglia, supra note 2, at 73.

Porter v. Commonwealth, 661 S.E.2d 415, 447 (Va. 2008) (stating that the definition of “probability” as “a
reasonable ‘probability’, i.e., a likelihood substantially greater than a mere possibility, that [the defendant] would
commit similar crimes in the future, but holding that the trial court is not required to provide this definition, or any
other definition of “probability,” to the jury).

it Virginia Model Jury Instructions—Criminal, No. P33.122 (2012) (on file with author).
Id.

® Garvey, supra note 60, at 638.

297

D. Protocol #4

Trial courts should instruct jurors clearly on applicable law in the jurisdiction
concerning alternative punishments and should, at the defendant’s request during
the sentencing phase of a capital trial, permit parole officials or other
knowledgeable witnesses to testify about parole practices in the state to clarify
jurors’ understanding of alternative sentences.

Virginia statutory law provides that life in prison without parole is the only alternative to a death
sentence for a defendant convicted of capital murder.’ Furthermore, “{uJpon request of the
defendant, a jury shall be instructed that” in capital murder cases, “a defendant shall not be
eligible for parole if sentenced to imprisonment for life.”"®* Because parole is not available in
Virginia capital cases, the Assessment Team did not examine the Virginia system in light of
Protocol #4.

E. Protocol #5

Trial courts should not place limits on a juror’s ability to give full consideration to
any evidence that might serve as a basis for a sentence less than death.

The U.S. Supreme Court has held that, in capital sentencing, mitigating evidence is defined as
“any aspect of a defendant’s character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.”®° Ag such, it is critically
important that trial courts not place limitations on capital jurors’ ability to give full consideration
to mitigating evidence.

Inadequate Jury Instructions on Mitigating Evidence

The Capital Jury Project’s findings found that a substantial number of interviewed capital jurors
in Virginia did not understand several important concepts related to mitigating evidence. It
found that 77% of surveyed Virginia jurors erroneously believed that the jury had to be
unanimous in order to consider evidence as mitigating, 53% did not realize they could consider
any evidence as mitigating evidence, and 51% did not know that they were not required to find
mitigating evidence beyond a reasonable doubt. ®° Juror confusion on these issues was higher
than average in Virginia among the thirteen states in which the Capital Jury Project conducted its
study.°’ These misconceptions may be due, in part, to jury instructions that do not fully apprise

83 Va. CODE ANN. § 19.2-264.4(A) (2013).

84 Id. The Supreme Court of Virginia first held that a capital defendant was entitled to an instruction that “life in
prison” means “imprisonment for life without possibility of parole” in 1999. Yarbrough v. Commonwealth, 519
S.E.2d 602, 616 (Va. 1999). Previously, in accordance with U.S. Supreme Court precedent, such an instruction was
only required when the prosecution was relying on the “continuing serious threat to society” aggravating factor. See
id. at 611-12 (citing Simmons v. South Carolina, 512 U.S. 154 (1994)).

® Lockett v. Ohio, 438 U.S. 586, 604 (1978).

% Bowers & Foglia, supra note 2, at 68.

87 Id. Of all the jurors surveyed, 66.5% of surveyed Virginia jurors erroneously believed that the jury had to be
unanimous in order to consider evidence as mitigating, 44.6% did not realize they could consider any evidence as
mitigating evidence, and 49.2% did not know that they were not required to find mitigating evidence beyond a
reasonable doubt. Id.

298

jurors of their ability to consider any evidence that might serve as a basis for a sentence less than
death.

While the Virginia model instructions comport with decisions by the Supreme Court of
Virginia,” the instructions exclude significant explanatory legal rules and principles that might
help jurors understand how mitigating evidence should be considered. For example, jurors are
not instructed that mitigating evidence does not need to be found beyond a reasonable doubt.
Nor are jurors instructed that a finding of mitigating evidence need not be unanimous or that any
evidence may be considered as mitigating evidence. Moreover, while Virginia statutory law
describes six specific mitigating factors," the model instructions do not provide for jurors to be
instructed on these factors, even if they are supported by the evidence. Thus, while jurors
receive specific instructions on how to consider specific aggravating factors, they receive only a
general description of mitigating evidence.”

Lack of Instruction on Residual Doubt

Residual doubt—that is, lingering doubt of the defendant’s guilt—has been found by the Capital
Jury Project to be among “the most powerful mitigating” factors for capital jurors.”* A Capital
Jury Project in South Carolina found that 60% of surveyed jurors said that “lingering doubt over
the defendant’s guilt” would make them “much less likely” to impose a death sentence.

Virginia jurors, however, may be unaware that they can consider residual doubt during
sentencing deliberations. The Supreme Court of Virginia has held that “a defendant is not
entitled to an instruction permitting a sentencing jury to consider residual doubt.” °? Moreover, a
defendant is prohibited from even “argu[ing] residual doubt in the sentencing phase.”

88 Monisette v. Commonwealth, 569 S.E.2d 47, 56 (Va. 2002) (rejecting claim that capital jury instructions did

not “provide meaningful guidance to the jury because the instructions do not inform the jurors that they have a duty
to consider mitigating evidence, do not provide any standard of proof regarding mitigating evidence, do not state
that the death penalty can be imposed only if the jury is convinced beyond a reasonable doubt that aggravating
factors outweigh mitigating ones, do not advise jurors that they are free to give mitigating evidence the weight and
effect that each juror believes is appropriate, do not list the statutory examples of mitigating evidence, and do not
define the terms ‘fairness’ and ‘mercy’”); George v. Commonwealth, 411 S.E.2d 12, 23 (1991) (holding that a jury
instruction which would have instructed jurors on individual mitigating factors was properly rejected by the trial
court); Gray v. Commonwealth, 356 S.E.2d 157, 178 (Va. 1987) (noting that “informing the jury that its decision on
mitigating factors need not be unanimous could create confusion in the jurors’ minds because they are instructed that
unanimity is required to impose the death penalty”).

8 Va. CODEANN. § 19.2-264.4(B) (2013).

se See Virginia Model Jury Instructions—Criminal, No. P33.122 (2012) (on file with author).

®! See Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 CoLum. L.
REV. 1538, 1563 (1998) (intemal quotation marks omitted) (finding, from Capital Jury Project interviews with South
Carolina jurors who had served in capital trials, that “‘[rJesidual doubt’ over the defendant’s guilt [wa]s the most
powerful ‘mitigating’ fact”).

° Id. at 1559,

3 Stockton v. Commonwealth, 402 S.E.2d 196 (Va. 1991).

4 Id. at 207. In prohibiting counsel to argue residual doubt in the sentencing phase, the Virginia Supreme Court
relied, in part, on the U.S. Supreme Court’s decision in Franklin v. Lynaugh in which the Court held that the U.S.
Constitution “in no way mandates reconsideration by capital juries, in the sentencing phase, of their ‘residual
doubts’ over a defendant’s guilt.” Franklin, 487 U.S. 164, 174 (1988). See also Frye v. Commonwealth, 345 S.E.2d
267, 283 (1986) (finding that the trial court did not abuse its discretion in instructing defense counsel to cease its

299

Confusion Regarding A ggravating Factors
Incorrect Belief that the Law Requires Death Penalty

Jurors laboring under the misapprehension that the finding of an aggravating factor requires
imposition of the death penalty may foreclose any consideration of mitigating evidence, so long
as one aggravating factor is present in the case. As the finding of an aggravating factor can
never require imposition of a death sentence,” the two aggravating factors found in Virginia law
are factors for the jury to consider in determining whether to sentence a defendant to death.°”

As discussed in Protocols #1 and #8, significant percentages of surveyed Virginia capital jurors
believed that the death penalty was required if either aggravating factor was present.” A study
of mock jurors in Virginia also demonstrated a high rate of confusion.” In that study, 44% of
mock jurors who received only the standard instruction believed that the vileness aggravating
factor required the death penalty, and 46% believed the same about the “continuing serious threat
to society” factor.1

This confusion may be due to unclear jury instructions. The instructions on aggravating factors
used in the mock juror study are nearly identical to the Virginia model instructions.’' The study

argument that “the jury should consider the finality of the death sentence and the possibility that additional evidence
might later demonstrate Frye’s innocence of the crime for which it had convicted him” during the sentencing phase).
55 “As previously discussed in Protocol #1, capital jurors also frequently misinterpret Virginia’s aggravating factors
as mandating the imposition of the death penalty. See supra notes 47-50 and accompanying text.
® See Woodson v. North Carolina, 428 U.S. 280, 301 (1976).
8” See VA. CODE ANN. § 19.2-264.2 (2013).
Bowers & Foglia, supra note 2, at 73.
See supra notes 60-63 and accompanying text.
Garvey, supra note 60, at 638.
The relevant instructions provided to the mock jurors read as follows:
You have convicted the defendant of an offense which may be punished by death. You must
decide whether the defendant shall be sentenced to death or to imprisonment for life or to
imprisonment for life and a fine of a specific amount, but not more than $100,000.00. Before the
penalty can be fixed at death, the State must prove beyond a reasonable doubt at least one of the
following altematives:
1. That, after consideration of his history and background, there is a probability that he would
commit criminal acts of violence that would constitute a continuing threat to society; or
2. That his conduct in committing the offense was outrageously or wantonly vile, horrible or
inhuman, in that it involved depravity of mind or aggravated battery to the victim beyond the
minimum necessary to accomplish the act of murder.
If you find from the evidence that the State has proved beyond a reasonable doubt either of the two
alternatives, and as to that alternative you are unanimous, then you may fix the punishment of the
defendant at death or if you believe from all the evidence that the death penalty is not justified,
then you shall fix the punist of the d Jant at life impri or imprisonment for life
and a fine of a specific amount, but not more than $100,000.00.
If the State has failed to prove beyond a reasonable doubt at least one of the altematives, then you
shall fix the punishment of the defendant at life imprisonment or imprisonment for life and a fine
of a specific amount, but not more than $100,000.00.
Id. at 652-53. The Virginia model instructions conform to these instructions almost verbatim. The only substantive
difference is that the model instructions state, “But if you nevertheless believe from all the evidence, including
evidence in mitigation, that the death penalty is not justified, then you shall fix the punishment of the defendant at”

300

found that juror comprehension of aggravating factors improved significantly when jurors were
read an additional clarifying instruction that stated, “Even if you find that the State has proved
one or both of the aggravating factors beyond a reasonable doubt, you may give effect to the
evidence in mitigation by sentencing the defendant to life in prison.”"°? Of the mock jurors who
received this instruction, only 29% believed that a death sentence was mandatory in the presence
of the vileness aggravating factor, and only 24% believed that death was required if they found
the “continuing serious threat to society” factor. 1

Continuing Threat to Society

Since the abolition of parole in Virginia in 1995, capital jurors may also experience confusion in
predicting whether the defendant “would commit criminal acts of violence that would constitute
a continuing serious threat to society.”!°' With the abolition of parole, this aggravating factor,
commonly called “future dangerousness,” requires the prosecution to prove that the defendant
would pose a threat to others during his/her life prison term, not while in society at large.

Conclusion

Virginia’s standard capital jury instructions limit the jury’s ability to consider evidence in
support of a sentence less than death in a variety of ways. Jurors are not instructed that
mitigating evidence does not need to be found beyond a reasonable doubt, that a finding of
mitigating evidence need not be unanimous, or that any evidence may be considered as
mitigating evidence. Jurors also do not receive instructions on individual mitigating factors that
are supported by the evidence.

Moreover, Virginia’s jury instructions have led many jurors to incorrectly believe that a finding
of an aggravating factor requires the death penalty. These jurors may feel compelled to sentence
a defendant to death even in the face of compelling mitigating evidence. Finally, the “continuing
serious threat to society” aggravating factor is inaccurately worded and findings in support of
this factor may be based on dubious science, further distracting jurors from relevant sentencing
considerations. Accordingly, Virginia is not in compliance with Protocol #5.

Recommendation

The Assessment Team recommends the following changes to Virginia’s capital jury instructions
to improve juror understanding of the manner in which aggravating and mitigating factors must
be considered. First, Virginia capital jurors should be instructed that (1) mitigating evidence
does not need to be found beyond a reasonable doubt; (2) a finding of mitigating evidence need
not be unanimous; (3) any evidence presented during the guilt and sentencing phases of the trial
may be considered as mitigating evidence; and (4) they must consider mitigating evidence if they
find an aggravating factor.

life in prison or life in prison and a fine. Virginia Model Jury Instructions—Criminal, No. P33.122 (2012) (on file
with author) (emphasis added).

Hs Garvey, supra note 60, at 639, 655.

103" Id. at 639.

14 See Va. CODE ANN. § 19.2-264.4(C) (2013) (emphasis added).

301

Second, as jurors are instructed on individual aggravating factors supported by the evidence,
jurors should also be instructed on individual mitigating factors when such an instruction is
supported by the evidence and requested by the defendant. Third, Virginia should improve and
expand upon the instruction on aggravating factors to ensure that jurors do not falsely believe
that a finding of an aggravating factor mandates the death penalty.

The Assessment Team also notes that there is far more evidence of wrongful conviction in
criminal cases—including those in which the death penalty was sought and imposed—than when
the Supreme Court of Virginia issued its pronouncement in 1991 that counsel may not raise
lingering or “residual doubt” about the defendant’s guilt during the sentencing phase of a death
penalty case.!° Indeed, as of June 18, 2013, over 300 people have been exonerated by post-
conviction DNA testing and over 140 death row inmates have been exonerated due to evidence
of innocence.’ Thus, the Team recommends that, given the accumulating evidence of wrongful
conviction and exoneration over the last two decades, counsel should be permitted to argue that
the defendant’s possible innocence or lingering doubt of the defendant’s guilt constitutes
mitigation.

Finally, a significant percentage of Virginia capital jurors believe that a finding that the
defendant presents a continuing threat to society requires them to sentence the defendant to
death. This confusion may be attributable, to some degree, to the assumption that a jury can
accurately predict whether the defendant would pose such a threat—an assumption that is belied
by a wealth of social scientific research.’ Perhaps recognizing that predictions of future
dangerousness are speculative and unreliable, only five other states—Idaho, Oklahoma, Oregon,
Texas, and Wyoming—include future dangerousness as part of their capital sentencing
framework.!° Furthermore, the advent of life without parole in 1995 ensures that a defendant
sentenced to this alternative punishment will not pose a threat to society as a whole.

Accordingly, the Assessment Team recommends that jury instructions should clarify the proper
meaning of “society” since the abolition of parole in the Commonwealth. In applicable cases in
which jurors are considering whether the defendant poses a continuing threat to society, the
instruction should make clear that jurors must consider the defendant’s threat to others during
his/her incarceration while serving a sentence of life in prison without the possibility of parole.

105 See Stockton v. Commonwealth, 402 S.E.2d 196 (Va. 1991).

106 See Exonerations Nationwide, INNOCENCE PROJECT,
http://www. innocenceproject.org/Content/DNA_Exonerations_Nationwide.php (last visited Aug. 15, 2013).

107" See, e.g., Michael L. Radelet & James W. Marquart, Assessing Nondangerousness During Penalty Phases of
Capital Trials, 54 Aus. L. Rev. 845, 848-49 (1990) (using data from Texas to show that “dangerousness is vastly
over-predicted, and that predictions of nondangerousness are far more accurate than are predictions of
dangerousness”); Christopher Slobogin, Dangerousness and Expertise, 133 U. PA. L. Rev. 97 (1984); Thomas J.
Reidy, Mark D. Cunningham & Jonathan R. Sorensen, From Death to Life: Prison Behavior of Former Death Row
Inmates in Indiana, 28 Crim. Just. & BEHAV. 62 (2001).

8 IDAHO Cope § 19-2515(9)(i) (2012); 21 OKLA. STAT. § 701.12(7) (2012); OR. REV. STAT. § 163.150(1)(b)(B)
(2012); TEx. CODE CRIM. Proc. art. 37.071, § 2(b)(1) (2012); Wyo. STAT. § 6-2-102(h)(xi) (2012).

302

F. Protocol #6

Trial courts should instruct jurors that a juror may return a life sentence, even in
the absence of any mitigating factor and even where an aggravating factor has been

blished beyond a r ble doubt, if the juror does not believe that the
defendant should receive the death penalty.

Virginia’s capital sentencing scheme provides that, even in the presence of an aggravating factor,
a defendant cannot be sentenced to death unless the jury “recommend{s] that the penalty of death
be imposed.” The jury is not required to find or even consider any mitigating evidence before
it sentences a defendant to life in prison.” Thus, the jury has absolute discretion to impose a
life sentence, even in the absence of any evidence to support that sentence.

Virginia’s jury instructions, however, do not clearly articulate this principle to the jury. The
model instruction provides that jurors should be instructed as follows: “But if you nevertheless
believe from all the evidence [after finding an aggravating factor], including evidence in
mitigation, that the death penalty is not justified, then you shall fix the punishment of the
defendant at” life in prison or life in prison and a fine.'!' Standing alone, this instruction
inaccurately implies that some evidence is necessary to impose a life sentence.

The Supreme Court of Virginia has also held that it is proper for the trial court to deny a
proffered instruction stating that the jury “could return a verdict for a life sentence even though it
found aggravating circumstances but no mitigating factor.”'”? The court has also held that it is
not error to refuse to instruct the jury that it may “consider pity, sympathy, and mercy” in its
sentencing deliberations. '"

Conclusion

Virginia trial courts are not required and do not appear to instruct jurors that they may return a
life sentence, even in the absence of any mitigating factor and even where an aggravating factor
has been established beyond a reasonable doubt, if they do not believe that the defendant should
receive the death penalty. Accordingly, Virginia is not in compliance with Protocol #6.

Recommendation

The Assessment Team recommends that Virginia’s capital sentencing instructions be clarified to
explain that jurors are never required to return a verdict of death and may retum a life sentence,
even in the absence of any mitigating factor and even where an aggravating factor has been
established beyond a reasonable doubt, if they do not believe that the defendant should receive
the death penalty.

109 Va. CODE ANN. § 19.2-264.2 (2013).

10 Td. (placing no conditions on the i ition of a life

a Virginia Model Jury Instructions—Criminal, No. P33.122 (2012) (emphasis added).
12° Tumer v. Commonwealth, 364 S.E.2d 483, 489-90 (1988).

a Frye v. Commonwealth, 345 S.E.2d 267, 283-84 (Va. 1986).

303

G. Protocol #7

In states where it is applicable, trial courts should make clear in juror instructions
that the weighing process for considering aggravating and mitigating factors should
not be conducted by determining whether there are a greater number of
aggravating factors than mitigating factors.

Virginia has been described as a “nonweighing state” by federal courts.'"* Accordingly, Protocol
#7 is inapplicable to Virginia.

4 E.g., Tuggle v. Netherland, 79 F.3d 1386, 1389 (4th Cir. 1996). In capital jurisdictions known as “weighing
states,” “after a jury has found a defendant guilty of capital murder and found the existence of at least one statutory
aggravating factor, it must weigh the aggravating factor or factors against the mitigating evidence.” Stringer v.
Black, 503 U.S. 222, 229 (1992). By contrast, in “nonweighing states,” “the jury must find the existence of one
[statutory] aggravating factor before imposing the death penalty, but [statutory] aggravating factors as such have no
specific function in the jury’s decision whether a defendant who has been found to be eligible for the death penalty
should receive it under all the circumstances of the case.” Id. at 229-30. Virginia does not require the jury to weigh
the aggravating factor or factors against the mitigating evidence. See VA. CoDE ANN. § 19.2-264.2 (2013).
Accordingly, Virginia is a nonweighing jurisdiction.

304

CHAPTER ELEVEN
JUDICIAL INDEPENDENCE AND VIGILANCE
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

Our justice system relies on the independence of the judicial branch to ensure that judges decide
cases to the best of their abilities without bias—political or otherwise—and notwithstanding
official and public pressure. However, judicial independence is increasingly undermined by
judicial elections, appointments, and confirmation proceedings that are affected by nominees’ or
candidates’ purported views on controversial issues, including the death penalty, or by their
decisions in capital cases.!

During judicial election campaigns, voters often expect candidates to assure them that they will
be “tough on crime,” that they will impose the death penalty whenever possible, and, if they are
seeking an appellate judgeship, that they will uphold death sentences. In reelection campaigns,
judges are asked to defend decisions in capital cases and sometimes are defeated because of
their unpopular decisions, regardless of whether these decisions are reasonable or binding
applications of the law, or reflect the predominant view of the Constitution. Prospective and
actual nominees for judicial appointments often are subjected to scrutiny on these same bases.
Generally, when this scrutiny occurs, the discourse is not about the constitutional doctrine in a
case but rather about the specifics of the crime.

All of this increases the possibility—or, at least, the perception—that judges will decide cases
not on the basis of their best understanding of the law, but on the basis of how their decisions
might affect their careers. These circumstances also may make it less likely that judges will be
viewed by the public as sufficiently vigilant against prosecutorial misconduct and incompetent
representation by defense counsel. Ultimately, judges must remain cognizant of their obligation
to take corrective measures both to remedy the harms of prosecutorial misconduct and defense
counsel incompetence, and to prevent such harms from occurring in the future.

' See, e.g., Breaking the Most Vulnerable Branch: Do Rising Threats to Judicial Independence Preclude Due

Process in Capital Cases?, 31 CoLum. Hum. RTs. L. REV. 123 (1999).

305

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW

The Virginia judiciary is divided into four levels: the Supreme Court, the Court of Appeals, the
Circuit Courts, and General District Courts.” The circuit courts are courts of original
jurisdiction for serious criminal offenses, including death penalty-eligible cases.’ Death penalty
cases are afforded mandatory direct Teview in the Supreme Court, bypassing the usual appellate
jurisdiction of the court of appeals.’ In addition to the conviction itself, the Supreme Court
reviews death sentences for proportionality and excessiveness.> The Supreme Court also has
exclusive jurisdiction over petitions for habeas corpus in capital cases and may order the Circuit
Court to conduct an evidentiary hearing on such petitions.®

Seven justices currently serve on the Supreme Court of Virginia.’ Supreme Court justices serve
twelve- year terms, while judges of the Courts of Appeals and Circuit Courts serve eight-year
terms.® All judicial nominees must have been admitted to the Virginia State Bar for at least five
years to be eligible for judicial selection.°

A. Judicial Selection

1. Legislative Election of Judges

Virginia is one of only two states in which judges are elected by the state legislature. 1° Judicial
nominees, including judges seeking re-election, are submitted by members of the General
Assembly to the Courts of Justice Committees of the House of Delegates and the State Senate. '?
The Committees evaluate the candidates’ qualifications, conduct criminal background checks,
investigate attorney and, if applicable, Judicial disciplinary records, and conduct interviews that
are open to the public and the media.’? The result of the Committees’ deliberations is a
determination of whether or not each candidate is “qualified” for election to the judicial
position.'® Qualified candidates are then submitted for election by the House of Delegates and
Virginia Senate, with a simple majority of each House required for election. “4

2 Va. CODE ANN. § 17.1-500 (2013).

3 Va. CODE ANN. § 17.1-500 (2013).

4 Va. CoE ANN. § 17.1-313. See also Va. CopE ANN. § 17.1-406(B) (2013) (“[A]ppeals lie directly to the
Supreme Court from a conviction in which a sentence of death is imposed [or] from a final decision, judgment or
order of a circuit court involving a petition for a writ of habeas corpus.”).

Va. CODE ANN. § 17.1-313(A), (C) (2013).
® Va. Cope ANN. § 8.01-654(C)(1) (2013).

7 Va. Const. art. VI, § 2.

8 va. Const. art. VI, § 7.

® Va. Const. art. VI, § 7

South Carolina also elects judges through the state legislature. See Judicial Selection in the States: South
Carolina, AM. JUDICATURE Soc’y, http://www.judicialselection.us/judicial_selection/index.cfm? state=SC (last
Visited July 23, 2012).

Email Interview by Will Bush with Mary Kate Felch, Sr. Research Assoc., Div. of Legislative Servs. (July 26,
2012) (on file with the author).

Id. See also Ray Reed, Judgeship candidate questioned again, THE News & ADVANCE, Mar. 7, 2012,
available at http://www. wsls.com/story/20853634, gain (describing interview of a
judicial candidate who did not receive qualification certification by Senate Courts of Justice Committee).

Interview with Mary Kate Felch, supra note 11.

4 Va. Const. art. VI, §7.

10

306

While the method of electing judges is prescribed by the state constitution, the procedure for
nominating candidates for election is decided within the Courts of Justice Committees.’° The
procedures are not published or otherwise promulgated in any official government document. ‘®

For Circuit and District Court judgeship vacancies, members of the General Assembly where
the judicial vacancy is located are responsible for submitting judicial candidates for review by
the House and Senate Courts of Justice Committees. "” Statewide judicial vacancies, for which
there is by definition no “local” legislative delegation, may be nominated by any member of the
House or Senate.’® As with lower court judgeships, the Courts of Justice Committees receive
nominations, interview and investigate candidates, and present the names of selected candidates
to the House and Senate for election. !°

The Rules of the House of Delegates require that judicial candidates who have not been
interviewed and certified as qualified by the House Courts of Justice Committee may not stand
for election before the House of Delegates.” The Senate rules specify a different procedure, but
in practice, all candidates must be certified as qualified by the Senate Courts of Justice
Committee before election in the Senate.”!

In addition to the legislative delegation, the Virginia State Bar, along with state, local and
special-interest bar associations, disseminate surveys and conduct confidential interviews of
judicial candidates.”2 While some bar associations release lists of recommended candidates,

Interview with Mary Kate Felch, supra note 11.

Id. The Chairperson of each Committee solicits nominations from the local legislative delegation by e-mail.
Id. An altemative process, by which local bar associations nominated candidates to fill local judicial vacancies,
was discontinued approximately twenty-five years ago, when the volume of applicants proved unmanageable. Id.

id.

20 Va. Rules of the House of Delegates, Rule 1 (Jan. 11, 2012), available at
http://hodcap.state.va.us/publications/20122013HouseRulesText.pdf (“{a]t the election of any judgeship . . . no
nominee shall be offered to the House unless that nominee has been interviewed by the House Courts of Justice
Committee and subsequently certified as qualified for election.”). The Rules of the Senate specify that certification
by the Senate Courts of Justice committee is only required for a candidate to stand for election if that candidate’s
nomination is not affirmed by a majority of “Senators, all or part of whose Senate Districts are within the Circuit or
District for which a Judge is to be elected . . .” but do specify that if a majority of Senators do support a candidate’s
nomination, that person must be “qualified,” which may refer to the same standards applied by the Courts of Justice
Committee. Va Rules of the Senate, Rule 18(c) (Jan. 11, 2012) available at
http://hodcap.state.va.us/publications/SenateR ules. pdf.

21” Interview with Mary Kate Felch, supra note 11. See also Rules of the Va. Senate, Rule 18(c) (Jan. 11, 2012),
available at http://hodcap.state.va.us/publications/SenateRules.pdf. The Rules of the Senate specify that
certification by the Senate Courts of Justice committee is only required for a candidate to stand for election if that
candidate’s nomination is not affirmed by a majority of “Senators, all or part of whose Senate Districts are within
the Circuit or District for which a Judge is to be elected . . .” but do specify that if a majority of Senators support a
candidate’s nomination, that person must be “qualified,” which may refer to the same standards applied by the
Courts of Justice Committee.

2 See, e.g., VA. STATE BAR, STATEWIDE AND SPECIALTY BARS JUDICIAL NOMINATIONS PROCESS (Jan. 1, 2012)
available at http://www.vsb.org/docs/V SB_JNC_bar-contacts_010212.pdf (last visited July 27, 2013); Bylaws of
the Va. Beach Bar Ass’n, Art. XI, § 4(c) (“The list of nominees considered, the interviews of the candidates, and
the deliberations and votes of the [Judicial Recommendation] Panel shall be and shall remain confidential.”) (on
file with the author); Richmond Bar Ass’n, Plan for the Endorsement of Judicial Candidates for Judicial Office,

307

these recommendations are not binding on any of the formal election proceedings within the
Courts of Justice Committees or the General Assembly. Several statewide voluntary bar
associations also interview nominees for statewide office.”*

In 2002, the Virginia Code was amended to require the Supreme Court of Virginia to “establish
and maintain a judicial performance evaluation program that will provide a self-improvement
mechanism for judges and a source of information for the reelection process.”” Under the new
tule, judicial evaluations on judges whose terms were to soon expire were to be submitted to the
Courts of Justice Committees.”° In 2009, however, the General Assembly eliminated funding
for the program.’

2. Participation in the Elections Process by Sitting Judges

Sitting judges may participate in the nomination of candidates for judicial office “by
cooperating with appointing authorities and screening committees seeking names for
consideration, and by responding to official inquiries concerning a person being considered for
judgeship.”?® Such cooperation must be in response to an official inquiry and the Judicial
Ethics Advisory Committee has stated that “calling or writing a member or committee of the
General Assembly on behalf of a judicial candidate at the request of the candidate is[ . . .]
improper.”

3. Temporary Appointment of Judges
The Governor of Virginia may appoint Circuit and Court of Appeals judges, as well as Supreme

Court Justices for judgeships not filled during the legislative session or vacancies that occur out
of session.*” General District Court judgeships not filled by the legislature or which become

Art. III, § 2, available at http: iowwixichmondberorggudictal plan.pdf (providing that the committee will
interview all candid and that deliberations will be
23 See, e.g., Paul Fletcher, Virginia Beach Bar Make Judicial Rectiitiendatins Va. LAWYERS WKLY. BLOG,
Janay 21, 2010, http://valawyersweekly.com/vlwblog/2010/01/21/virginia-beach-bar-make-judicial-
recommendations/#more-2703 (rating candidates for judicial vacancies as “highly recommended” or
“recommended”) (last viewed July 27, 2013), Judicial Recommendation Panel Results 2012, VA. BEACH BAR
Ass'n, http://www. com/judicial- dation-panel ts-2012/ (last viewed July 27, 2013).
4 Qld Dominion Bar Plans Judicial Interviews, VA. LawyERS WKLY. BLOG, Jan. 23, 2012,
hittp://valawyersweekly.com/vlwblog/2012/01/23/old-dominion-bar-plans-judicial-interviews/ (last visited July 27,
2013).
25 Va. CopE ANN. 17.1-100 (2013).
* Id.
27 VIRGINIA’ JUDICIAL SYSTEM, 2009, http://www.courts.state.va.us/ (ast visited July 24, 2012). See also Hon.
Leroy Rountree Hassell, Sr., Chief Justice, 2009 Virginia State of the Judiciary Address, VIRGINIA’S JUDICIAL
SysteM, available at http://www.courts.state.va. ‘us/courts/scv/state_ of the judiciary address.html. Questions
regarding the confidentiality of the judicial eval d and to the General Assembly under
the Judicial Performance Evaluation Program were also raised by both members of the legislature and judiciary, but
this i issue was rendered moot when funding for the program was eliminated. Id.

Va. CANONS OF JUDICIAL ConpucT, Canon 2(B), Commentary (2004), available at
http://www.courts.state.va.us/agencies/jirc/canons_of_judicial_conduct.pdf.
"Com. Of Va. Judicial Ethics Advisory Comm. Op. 03-2, July 18, 2003, available at
http: //www.courts.state.va.us/agencies/jirc/opinions/2003/03_2.html.

Va. Const. art. VI, § 7.

308

vacant, out of session are appointed by the Circuit C ourt judges in the district where the vacancy
exists."’ Judges appointed through either process serve terms that expire thirty days after the
beginning of the next legislative session.”

B. Conduct Requirements for Selected J udges
1. General Provisions

Conduct of the Virginia judiciary is governed by the Virginia Canons of Judicial Conduct.
There are no separate conduct requirements for Judicial candidates, but elected judges who have
not yet taken their seats are bound by the Canons.™*

2. Impartiality and Political Activity

Virginia judges and justices are prohibited from engaging in political activity that is
incompatible with their judicial duties. Members of the judiciary, for example, may not make
payments or contributions to political organizations, candidates, or campaigns, purchase tickets
for political events, or attend such events.» A judge also may not “act as a leader or hold any
office in a political organization [or] make speeches for a political organization or publicly
endorse or oppose a candidate for public office.”** The commentary to the Canons specifies
that a judge may, however, vote in a primary election “that is open to all registered voters
qualified to vote. . . because there is no registration by political affiliation, no loyalty or political
party oath required to vote, and no pledge of support for any person or political group.”*

A judge who becomes a political candidate must resign his or her judicial office.** The Virginia
Constitution specifically bars justices or judges from seeking or accepting any non-judicial
elected office, as well as “hold[ing] any other office or public trust, or engag[ing] in any other
incompatible activity.”® Justices and judges also may not practice law while in office.”

5! Va. CODE ANN. § 16.1-69.9:2 (2013).

Va. Const. art. VI§ 7 (setting term limit for Supreme Court Justices and judges of courts of record appointed
by Govemor); VA. CoDE ANN. § 16.1-69.9:2 (2013) (setting term limits for appointed General District Court
judges).
8 VA. CANONS OF JUD. CONDUCT, Preamble.
Va. CANONS OF JuD. ConDucT, Canon 6(D) (permitting exceptions to the rule to allow a judicial selectee to
“arrange his or her affairs to be in compliance with these Canons . . . and to wind down his or her practice prior to
taking the oath of office.”).

5 Va. CANONS oF Jup. CoNnDUCT, Canon 5(A)(1)(c).
3° Va. CANONS OF JuD. ConbucT, Canon 5(A)(1)(a)-(b).
37 Va CANONS OF JuD. ConDUCT, Canon 5(A)(3), Commentary.
38 Va. CANONS OF Jub. ConbucT, Canon 5(A)(2) (stating, however, that a judge “may continue to hold his
judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention, if
he is otherwise permitted by law to do so”).
8° Va. Const, art. VI, § 11.
Id.; see also VA. CODE ANN. 17.1-102 (2013); VA. CANONS OF JuD. CoNDUCT, Canon 4(G). The Judicial
Ethics ‘Advisory Committee has issued an opinion that a judge may serve as a reserve officer in the Judge Advocate
General Corps of the U.S. military, as the legal duties of such service “do not come within [the canons’] concept of
practicing law.” Va. Judicial Ethics Advisory Comm. Op. 03-4 (May 21, 2004). A narrower prohibition on
appearing in court on behalf of a client applies to retired judges, and can make retired judges ineligible for
retirement benefits. See generally Thompson v. Walker, 758 F.2d 1004 (4th Cir. 1985).

34

40

309

3. Rules for Recusal

Under the Canons of Judicial Conduct, “[a] judge shall disqualify himself or herself in a
proceeding in which the judge’s impartiality might reasonably be questioned, including but not
limited to situations involving personal or economic conflicts of interest as well as instances
where. . . [t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer.”*!
The Virginia Supreme Court has stated that in making recusal decisions, a judge should be
guided not only by “the true state of his impartiality, but also by the public perception of his
fairness, in order that public confidence in the integrity of the judiciary be maintained.”*”

The Supreme Court of Virginia has stated that biases sufficient to require recusal must be
extrajudicial—i.e. that the bias or appearance of bias must arise from some source outside what
the judge has learned from his/her participation in the case at bar.“? Appellate courts review
recusal decisions on an abuse-of-discretion standard.*

C. Complaints and Disciplinary Actions Against J udges
1. Judicial Inquiry and Review Commission

The Virginia Constitution empowered the General Assembly to “create a Judicial Inquiry and
Review Commission consisting of members of the judiciary, the bar, and the public, and vested
with power to investigate charges which would he the basis for retirement, censure, or removal
ofa judge.”

Complaints against judges are investigated by this Commission (JIRC).“° JIRC is composed of
seven members, including three judges (one each from the circuit court, general district court,
and juvenile and domestic relations court), two lawyers, and two non-lawyers.*” Citizens who
believe they have witnessed judicial misconduct may complete a form provided by the Virginia
Supreme Court and submit a complaint to JIRC.”* Credible complaints that may constitute a
violation of the Canons of Judicial Conduct are elevated in status to “Inquiries,” and are subject
to preliminary investigation by JIRC counsel.*® Upon review of the preliminary investigation

41 Va. CANONS OF Jup. Conpuct, Canon 3(E)(1)(a).

® Wilson v. Commonwealth, 630 S.E.2d 326, 331 (Va. 2006) (quoting Stamper v. Commonwealth, 228 Va. 707,
714 (Va. 1985). The Virginia Canons of Judicial Conduct do not require a judge to explain his/her reason for
recusal in a case. See generally VA. CANONS OF JUD. CONDUCT.
3 See Prieto v. Commonwealth, 721 S.E.2d 484, 494 (Va. 2012) (holding that the use of “emotional language” in
a ing order, incl that the accused had “executed” and “slaughtered” the victims and
characterization of the young adult victims as “children,” did not indicate bias because the judge was required by
law to consider “the vileness of the crime”).
# Wilson, 630 S.E.2d at 331, 272 (quoting Stamper v. Commonwealth, 228 Va. 707, 714 (1985)).
45 Va. Const. art. VI, § 10
° Id.
“7 Va. CopE ANN. § 17.1-901 (2013). The judicial members of the JIRC must be actively serving judges; the
lawyer members of the commission must not be judges, and have practiced law in Virginia for at least 15 years.
The non-lawyer members of the Commission must never have been licensed attomeys or served as judges. Id.
8 Sup. Ct. of Va., Complaint, available at http://www.courts.state.va.us/agencies/jirc/jirc_complaint_form.pdf
(last viewed July 27, 2013).

R. JUDICIAL INquirY & REV. COMM’N 3(A)(4-5) (2012).

310

results, JIRC may dismiss the Inquiry.” If, however, JIRC finds that the complaint has merit,
the matter becomes a “charge,” and “the Commission may direct further investigation or
propose an informal conference with the judge.”*!

Following its investigation, if JIRC determines that the charge is “well founded and of sufficient
gravity to constitute the basis for retirement, censure or removal, it shall file a complaint against
the judge in the Supreme Court of Virginia.”®’ Charges that are similarly well-founded but fall
below the disciplinary or removal threshold are removed from JIRC’s docket after a conference
with the judge, and the matter may be relevant to investigations of future disciplinary
proceedings involving that judge. In this situation, JIRC may, with the judge’s consent,
impose a supervision period subject to terms and conditions determined by JIRC and violations
of the agreed upon conditions serve as “grounds for a new charge of failure to cooperate with
the Commission.”™ If a judge is facing reelection in the next legislative session, records and
evidence relating to alleged misconduct must be sent to the House and Senate Courts of Justice
Committees for their review, in addition to any member of either body who asks for such
information. Records of cases not referred to the Supreme Court of Virginia are kept
confidential and destroyed upon the judge’s death, resignation, or retirement.

Though these sanctions remain available and any person may file a complaint,” most
accusations of misconduct are not formally investigated. In 2012, out of the 1446 complaints
filed with JIRC, only twenty-four prompted an investigation. Twenty-three of these were
ultimately dismissed.°? The Supreme Court has reviewed six complaints filed by JIRC since
2002, none of which involved a judge’s conduct ina capital case.”

R. JUDICIAL INquirY & REV. COMM’N 3(A)
R. JUDICIAL INQquiRY & REV. COMM’N 3(B)
R. JUDICIAL Inquiry & REV. CoMM’N 15(.
R. JUDICIAL INquiRY & REV. CoMM’N 15
R. JUDICIAL Inquiry & REV. CoMM’N 15
Va CODE ANN. § 17.1-918(B) (2013).

56 R. JUDICIAL INQUIRY & REV. CoMM’N 16(C) (2012).

57 About the Judicial Inquiry and Review Commission, VIRGINIA’S JUDICIAL SysTEM (2009)
http://courts.state.va.us/agencies/jirc/about.html (last visited July 27, 2013).

58 2012 JupiciaL =INquirny & Rev. CoMM’N ANN. Rep. at 2, available at
http://eg2.state.va.us/dls/h&sdocs.nsf/By+Y ear/RD622013/Sfile/RD62.pdt.
™ See id.

50 See generally Judicial Inquiry & Rev. Comm’n v. Waymack, 284 Va. 527 (2012) (holding that judge sending

personal text messages to court employee did not violate canons); Judicial Inquiry & Rev. Comm’n vy. Taylor, 279
Va. 699 (2009) (holding that juvenile court judge violated judicial canons by ruling that an order was not
appealable); Judicial Inquiry & Rev. Comm’n v. Shull, 274 Va. 657 (2007) (holding that judge who twice ordered
litigant to lower her pants in the courtroom violated judicial canons); Judicial Inquiry & Rev. Comm’n v. Elliott
272 Va. 97 (2006) (holding that judge’s agreement to be supervised by Commission in exchange for Commission
not filing report with Supreme Court was valid); Judicial Inquiry & Rev. Comm’n v. Peatross, 269 Va. 428 (2005)
(holding that judge did not violate judicial canons for removing an attomey from a case and later communicating
with Supreme Court justice regarding resignation from Judicial Council pending JIRC charges); Judicial Inquiry &
Rev. Comm’n v. Lewis, 264 Va. 401 (2002) (censuring juvenile court judge for attempting to enforce an order that
had been stayed by the circuit court).

311

2. Judicial Ethics Advisory Committee

In 1999, the Virginia Supreme Court established a Judicial Ethics Advisory Committee “to
render advisory opinions conceming the compliance of proposed future conduct with the
Canons of Judicial Conduct.”*' The Committee is composed of nine members and issues
opinions either in response to inquiries from judges or on its own initiative. Committee
opinions are advisory and are not binding on JIRC, but “[JIRC] and the Supreme Court may in
their discretion consider compliance with an advisory opinion by the requesting individual to be
evidence of a good faith effort to comply with the Canons of Judicial Conduct.”

The Committee issues formal and informal opinions. Formal opinions are submitted to the
individual who requested them, as well as to all members of the Committee. Currently, all
Committee opinions are available online to the general public. Informal opinions are issued
when the opinion “is not inconsistent with prior formal opinions and Counsel finds that the
subject is not of general substantial interest and continuing concern to the judiciary or the
public.” Informal opinions are not published.”

® va. Sup. Cr.R. pt. 6 § 3 CJC Order (1999).
© Id. The Committee is composed of five active or retired judges, two attomeys, and two non-attomeys. Id.
Members serve staggered terms. Id. The Chief Justice of the Supreme Court appoints all members to the
Committee. Id.

Id.

St Va. Sup. Cr. R. pt. 6§ 3(42) CJC Order (1999).

See generally Judicial Ethics Advisory Opinions, VIRGINIA’S JUDICIAL SYS.,
http://www.courts.state.va.us/agencies/jirc/opinions.html (last visited July 27, 2013).

66 “Va. Sup. CT. R. pt. 6§ 3(36) CJC Order (1999).

67 Va. Sup. CT.R. pt. 6§ 3(41) CJC Order (1999).

312

II]. ANALY SIS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team’s
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
Assessment Team’s rec dations for reform.

A. Protocol #1

States should examine the fairness of their processes for the appointment and
election of judges and should educate the public about the importance of judicial
independence to the fair administration of justice and the effect of unfair practices
in compromising the independence of the judiciary.

Operation of Judicial Selection in Virginia

It appears that Virginia’s system of the election of judges carries both unique attributes to
support the independence of the judiciary, as well as possible challenges to the impartiality and
fair administration of justice in the Commonwealth.

Members of Virginia’s judiciary at all levels are elected by a majority vote of each House of the
General Assembly. In the event that a judicial seat is vacant at the close of the legislative
session, the Governor may also appoint a temporary judge or justice to the vacancy. In order
to be eligible for election before the legislature, would-be candidates must be nominated to the
Courts of Justice Committee by the local legislative delegation in which particular vacancies
occur.” Candidates for the Court of Appeals and the Supreme Court of Virginia must be
nominated to the Committees by a member of the appropriate chamber of the General
Assembly.”!

The length of judicial term may provide some measure of protection of the independence of the
judiciary in Virginia, particularly in comparison to other death penalty jurisdictions with shorter
judicial terms.” Moreover, Virginia’s nearly distinctive approach to the selection of judges
seems to protect the independence of the judiciary in several ways. For example, judicial
candidates in Virginia, unlike judges elected through popular elections, need not stage donor-
funded campaigns, which can encourage candidates to make promises about their prospective
decisions. The nomination process, during which candidates are interviewed publicly by the
Courts of Justice Committees of both legislative chambers, allows for meaningful public

%8 See Va. Const. art VI, § 7 (specifying election procedures for members of the Supreme Court and other courts

° Id.

Interview with Mary Kate Felch, supra note 11.
Id.

” Virginia appellate judges are elected to a twelve-year term, circuit court judges are elected to an eight-year
term. VA. Const. art. VI, § 7. In neighboring North Carolina, by contrast, all judges, including appellate judges,
are elected to an eight-year term. Judicial Selection in the States: Appellate and General Jurisdiction Courts, AM.
JupIcATuRE Soc’y (2004) (on file with author). In South Carolina—the only jurisdiction with a comparable
method of judicial selection to that of Virginia—the Legislature appoints lower court judges to a six-year term and
Supreme Court judges to a ten-year term. Id.

313

participation and media coverage of legislators’ questioning of candidates. These procedures
help to ensure the selection of judges is based on their qualifications for judicial office. Finally,
“Virginia has an approximate retention rate of 97% for judges of all court levels standing for
reelection,” indicating that judicial decision-making while on the bench is well-insulated from
political impacts.”

Legislative election in Virginia does, however, have the potential to interfere with the
independence of the judiciary. Relative to criminal cases, one issue that has emerged in recent
judicial interviews by the House and Senate Courts of Justice Committees are judicial
candidates’ views on the propriety of Hernandez rulings, which allow judges to suspend a
conviction. Such questioning of judicial candidates followed a decision by the Virginia
Supreme Court in Commonwealth v. Hernandez,” in which the Court held that judges have the
authority to defer judgments in criminal cases.” Reactions of sitting judges who have faced
questions about so-called Hernandez rulings have varied, with some candidates demurring to
legislators’ skepticism of such exercises of judicial discretion.” Judicial candidates have, for
the most part, resisted questions about their decisions in accordance with the Hernandez case in
public hearings before the Courts of Justice Committees.”

In addition, the effective functioning of the judiciary in Virginia is threatened by judicial
vacancies and budget reductions to the court system.”

Education of the Public on Judicial Independence

The Virginia State Bar, the official regulatory agency of the Virginia Supreme Court, has urged
bar associations to work to educate the public about the importance of a truly independent
judiciary that is “not an agency of the legislative or executive branch.” Leadership of
statewide bar associations has also publicly criticized efforts in the legislature to question
incumbent judicial candidates about their decisions to delay or defer judgments in criminal
cases, as permitted under Hernandez. The Presidents of the Virginia Bar Association and
Virginia Trial Lawyers’ Association, for example, stated that this “warning from legislators to

73 Email from Mary Kate Felch to Sarah Turberville (Apr. 23, 2013) (on file with author). In addition, “Virginia

has anywhere from 45 to 62 judges standing for reelection each year. Over the course of the last 20 years or so,
[Virginia] ha[s] fired an average of 1.5 judges each year.” Id.
"707 S.E.2d 273 (Va. 2011).
% See Ray Reed, Legislators Interview 3 Candidates for Judgeship, News ADVANCE (Lynchburg, Va.) Mar. 5,
2012, available at _http://www.wsls.com/story/20853104/legislators-interview-3-candidates-for-judgeship
(describing the interviews of three judicial candidates who were asked “whether they would defer a guilty
judgment for a defendant in a criminal case”).
© “See Deborah Elkins, House Certifies Judicial Candidates, Va. LAwyERS WKLY. BLOG, March 9, 2012,
available at _hittp://valawyersweekly.com/vlwblog/2012/03/09/house-certifies-judge-candidates/#more-6578
(“Kimberly Irving, who has applied for a seat on the 31st General District Court Bench . . . . offered a thorough and
studied explication of the issues, concluding with the observation that a judicial exercise of discretion could
impinge on the governor’s right to pardon.”).
77” See Protocol #3, infra notes 88-92.
a Nancy M. Reed, Local Bars Should Defend the Independence of Judges, 59 VA. Lawyer 54 (Dec. 2010),
available at http://www.vsb.org/docs/valawyermagazine/v11210-clba.pdf.

Id.; see also Irving M. Blank, It’s Time to Thaw the Judicial Hiring Freeze, 59 VA. LAWYER 10 (Dec. 2010),
available at http://www. vsb.org/docs/valawyermagazine/vl1210-president.pdf (addressing lack of funding for
independent judiciary).

314

judges seeking re-election to the bench places unacceptable pressure on them to compromise
their independence.”™ Representatives of the Virginia State Bar have also written that an
independent judiciary is threatened by the “judicial hiring freeze and budget cutbacks,”*!

Conclusion

Overall, the historical record suggests that Virginia has done an admirable job of protecting the
independence of its judiciary. The Virginia State Bar and voluntary bar associations in the
Commonwealth have also made efforts to educate the public about the importance of an
independent judiciary and problems that may compromise the courts’ independence. The ABA
Protocol, however, also calls for jurisdictions to examine the fairness of their judicial selection
process; thus, the Commonwealth is in partial compliance with Protocol #1.

B. Protocol #2

A judge who has made any p public or private ding his/her
prospective decisions in capital cases that amounts to prejudgment should not
preside over any capital case or review any death penalty decision in the
jurisdiction.

The Virginia Canons of Judicial Conduct govern the extent to which judges may comment on
matters pertaining to their judicial duties. The Canons provide that a judge “shall abstain from
public comment about a pending or impending proceeding in any court.”® The prohibition on
public comment extends to litigation currently under appeal, as well as mandamus proceedings
where the judge is a litigant in his or her official capacity.*

The Assessment Team notes that the only records of candidates’ statements relative to Protocol
#2 are media reports of judicial nominees’ interviews with the Courts of Justice Committees in
the General Assembly. Such reporting may be incomplete and the hearings themselves are
neither recorded nor transcribed by Committee staff." While the Assessment Team is unaware
of instances in which judges or justices in Virginia have made public comments about their
prospective decisions in capital cases, it appears that judicial nominees may be subject to
questioning on their views on the death penalty by Courts of Justice Committee members.”
Judicial candidates responses to questionnaires, statements made in interviews with bar
associations, and deliberations of the various bar association committees are also typically

80 Lucia Anna Trigiani & Edward L. Allen, Op-Ed., Unacceptable Pressure, VIRGINIA-PILOT, June 15, 2011.

a Nancy M. Reed, Local Bars Should Defend the Independence of Judges, 59 VA. Lawyer 54 (Dec. 2010),
available at http://www.vsb.org/docs/valawyermagazine/v11210-clba.pdf.

VA. CANONS OF JUD. CONDUCT, Canon 3(B)(9).

VA. CANONS OF JUD. CONDUCT, Canon 3(B)(9), cmt.

See Interview with Mary Kate Felch, supra note 11 (noting that the Committee does not create a record or
transcript of the pubic hearings). See also Vivian Page, The Wrong Way to Appoint Judges, VIRGINIA-PILOT, Dec.
14, 2011 (noting that in a 2011 hearing on judicial candidates, “nowhere in the official documents for the meeting
were even the names of the judicial panel listed).

85 Interview by Sarah Turberville and Mark Pickett with Mark Earley (May 3, 2013) (describing instances from
1987-1997 in which some judicial nominees were questioned about whether they would be willing to impose a
death sentence in a capital case in which the defendant had waived a jury trial)

83
84

315

confidential.®* State and local bar association questionnaires, however, appear to elicit
responses from judicial candidates regarding their legal and other professional experiences,
malpractice and criminal history, as well as biographical data.®” These questionnaires do not
solicit candidates’ views on issues to come before the Court.

Conclusion

Because public records indicate that judicial candidates have not made statements tantamount to
prejudgment regarding their prospective decisions in capital cases, it appears that Virginia is in
compliance with Protocol #2.

Recommendation

In order to ensure an accurate historical record of the judicial election process is maintained and
to encourage merit-based selection of judges, the Virginia Assessment Team recommends that
the Courts of Justice Committees create a record of its public interviews of all judicial
candidates.

86 See, e.g., Bylaws of the Va. Beach Bar Ass’n, art. XI, § 4(c) (“The list of nominees considered, the interviews

of the candidates, and the deliberations and votes of the [Judicial Recommendation] Panel shall be and shall remain
confidential”) (on file with the author), Richmond Bar Ass’n, Plan for the Endorsement of Judicial Candidates for
Judicial Office, art. III, § 2 (Mar. 1, 2007), available at http://www.richmondbar.org/judicial_plan.pdf (providing
that the committee will interview all candidates, and that deliberations will be confidential).

See, eg., Judicial Selection Questionnaire, Va. STATE BAR, available at
http://www.vsb.org/docs/VSB_JNC_Questionnaire_010412.doc. See also VA. STATE BAR, Statewide and
Specialty Bars Judicial Nominations Process, Jan. 1, 2012, available at http://www.vsb.org/docs/VSB_JNC_bar-
contacts_010212.pdf (indicating that state and local bar associations use the Virginia State Bar questionnaire in
their nomination processes).

316

C. Protocol #3

Bar associations and community leaders should speak out in defense of sitting
judges who are criticized for decisions in capital cases, particularly when the
judges are unable, pursuant to standards of judicial conduct, to speak for
themselves.

a. Bar associations should educate the public concerning the role and
responsibilities of judges and lawyers in capital cases, particularly concerning
the importance of understanding that violations of substantive constitutional
rights are not “technicalities” and that judges and lawyers are bound to protect
those rights of all defendants.

b. Bar associations and community leaders publicly should oppose any questions
of candidates for judicial appointment or re-appointment concerning the
percentages of capital cases in which they upheld the death penalty. Purported
views on the death penalty or on habeas corpus should not be litmus tests or
important factors in the selection of judges.

As described under Protocol #2, publicly available information regarding Virginia’s judicial
nomination and election process does not reveal instances of criticism of candidates or sitting
judges for their decisions in capital cases."

The efforts of bar associations to oppose the practice of asking judges to defend, or otherwise
comment on decisions that are consistent with Virginia Supreme C ourt jurisprudence should be
commended. In June 2011, for example, the presidents of the Virginia Bar Association and the
Virginia Trial Lawyers Association published an op-ed in the Virginian-Pilot criticizing state
legislators who had recently sent a letter to circuit court judges facing reelection in the General
Assembly.°° The legislators’ letter asked judges to compile and disclose to the Assembly’s
Courts of Justice Committee information about cases in which the judges had delayed or
deferred judgments against criminal defendants.°° The bar association and trial lawyers
association leaders’ response pointed out that “[w]hen one branch of government is dependent
for its funding from the other two, and members of that branch are also elected or appointed by
the other two, it is difficult to view that branch as fully ‘co-equal,’ notwithstanding
constitutional imperatives.”*! “[I]t would be difficult for any judge who received this letter to
interpret the message as anything other than an attempt to influence his or her decisions
between the time of the letter and re-election.”

Although Virginia’s relatively unique method of judicial selection makes it difficult to
determine whether or not particular views on the death penalty serve as important factors in the
judicial selection process, the Assessment Team uncovered no public instance in which

85 See supra notes 82-86 and accompanying text. It appears, however, that judicial nominees may be questioned

about their views on the death penalty by Courts of Justice Committee members. Id.

89 Lucia Anna Trigiani & Edward L. Allen, Op-Ed., Unacceptable Pressure, VIRGINIA-PILOT, June 15, 2011,

http://epilot hamptonroads.com/Olive/ODE/V irginianPilot/LandingPage/LandingPage.aspx ?href=

VmlyZ2luaW FuUGlsh3QvMjAxM S8wNi8xNQ..&pageno=MTk.&entity=QX IWMTkwMA..&view=ZW50aX R5.
Id.

1 Id.
2 id.

317

purported views on the death penalty or on habeas corpus served as a litmus test in the election
of judges in Virginia. When a related instance arose of legislators’ questioning judges”
decisions to defer or delay judgments in criminal cases, as authorized by Virginia common law,
bar associations spoke out in defense of judges for their decision-making in such cases. Thus,
the Commonwealth appears to be in compliance with Protocol #3.

D. Protocol #4

A judge who observes ineffective lawyering by defense counsel should inquire into
counsel’s performance and, where appropriate, take effective actions to ensure that
the defendant receives a proper defense.

Protocol #5

A judge who determines that prosecutorial misconduct or other activity unfair to
the defendant has occurred during a capital case should take immediate action
authorized in the jurisdiction to address the situation and to ensure that the capital
proceeding is fair.

Applicable Virginia Law on Judicial Roles and Responsibilities

The Canons of Judicial Conduct provide that “[a] judge who receives reliable information
indicating a substantial likelihood that a lawyer has committed a violation of the Code of
Professional Responsibility should take appropriate action.” The comments define
“Ta]ppropriate action” to include “direct communication with the . . . lawyer who has committed
the violation, other direct action if available, and reporting the violation to the appropriate
authority or other agency or body.” The Virginia State Bar’s Rules of Professional Conduct
also require “timely disclosure to counsel for the defendant, or to the defendant if he has no
counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the
accused, mitigate the degree of the offense, or reduce the punishment.” 5 Tt follows that
violations of the rule announced in Brady v. Maryland®® would trigger the reporting requirement
of the judicial conduct nule.

The trial court’s responsibilities under Virginia law may also be reinforced by the training
available to Virginia judges. Judicial training on the special issues that may arise in capital
cases can assist trial courts in identifying ineffective lawyering or prosecutorial misconduct
when it occurs, as well as inform judges of the varying remedies that may be applied to ensure
that a capital defendant receives a fair trial.

Virginia judges are provided with a variety of mandatory and optional training materials
overseen by the Supreme Court. Mandatory training may cover issues relative to capital cases,
such as topics on “Recognizing Bias,” “Sentencing Philosophy,” evidence, and the exercise of

Va. CANONS OF JuD. CONDUCT, Canon 3(D)(2).
"VA. CANONS OF JUD. ConDUCT, Canon 3(D)(2), cmt.
% Va. R. Prof’l Conduct 3.8(d) (2009).

% 373 U.S. 83 (1963).

318

judicial discretion.°” However, in recent years, the low number of new judges has resulted in
some key seminars on criminal law and criminal procedure not being offered.

While no mandatory training specifically addresses capital cases;°° however, judges who may
preside over these cases may participate in a special course offered by the Supreme Court of
Virginia. This course includes an overview of federal and state law, as well as a “more specific
session focusing on capital case management and the issues that may arise from pretrial through
the penalty phase.”!° The program was last held in February of 2013.'! While it was offered
annually from 2005-2010, “there was no program held between 2010 and 2012 due to a freeze
on filling judicial vacancies.” Issues related to Brady disclosures were last covered by judicial
educational resources at a voluntary program co-developed by the National Judicial College in
February 2009.

While the structure of Virginia law calls upon judges to ensure a fair proceedings and effective
counsel in all criminal cases, anecdotal information on the outcomes in capital cases indicate
varying levels of vigilance on the part of trial courts to guard against unfair conduct or
ineffective assistance of counsel in death penalty cases.'°? Since 2000, eight of thirty-six
Virginia death sentences imposed have been reversed due to ineffective assistance of counsel,
prosecutorial misconduct, and/or trial court errors, °* Notably, instances in which misconduct
was found by an appellate court, but was found to be harmless error or not prejudicial to the
outcome of the proceeding, or was procedurally barred are not included in the above data.

Conclusion

The Virginia Canons of Judicial conduct and other case law obligates trial courts to take
effective action to ensure a capital defendant receives a fair trial and to remedy unfair practices,
nevertheless the occurrences of ineffective lawyering, prosecutorial misconduct, and trial court
errors has affected the fairness of the proceedings in death penalty cases in the Commonwealth.
Given the breadth of Protocols #4 and #5, however, the Assessment Team is unable determine
the level of compliance in Virginia.

. Va. Sup. CT., PRE-BENCH ORIENTATION CURRICULUM (on file with the author).

> ie

100 Email from Caroline Kirkpatrick, Dir. of Educational Servs., Office of the Exec. Sec’y, Sup. Ct. of Va, to
Sarah Turberville (Apr. 26, 2013) (on file with author).

11 Telephone interview with Caroline Kirkpatrick, Dir. of Educational Servs., Office of the Exec. Sec’y, Sup. Ct.
of Va., (July 24, 2012). The session, which judges attend at state expense, is offered whenever a class of 12-20
judges is available. In recent years, judicial seat funding issues have prevented a full class from forming.

Va. Sup. Ct. & Nat’l Judicial Council, Agenda, Best Practices in Death Penalty Cases: A Workshop for Judges
and Attorneys, February 2-3, 2009, Richmond, Va. (on file with the author).
13 For example, the rarely envoked “plain error” doctrine was used by the Virginia Supreme Court in Andrews v.
Commonwealth, 699 S.E.2d 237, 276 (Va. 2010) to invalidate a judge’s decision to permit the prosecution to make
certain arguments. See also Chapter Five on the Prosecution and Chapter Six on Defense Services for a detailed
description of the practices of prosecutors and defense counsel in Virginia death penalty cases.
14 See Virginia Death Sentences on Appeal, 2000-2012, Appendix. Three of the thirty-six inmates cited above
dies or committed suicide before their appeals expired. Id.

319

Recommendation

Given the complex legal issues presented in capital cases and the high stakes of such litigation,
trial court judges must be especially vigilant in taking steps to ensure that defendants are
represented effectively and that effective action is taken whenever any activity unfair to the
defendant occurs in a capital trial. Thus, the Virginia Assessment Team recommends that
capital case training and management be required of all judges who oversee capital trials. Such
training should cover at least the areas described in the 2009 and 2010 capital case judicial
trainings sponsored by the Supreme Court of Virginia, including jury selection, mental illness,
rules and limitations on closing arguments, and penalty phase issues and juror instruction issues.
This training should also inform judges of and encourage judges to use appropriate remedies
whenever they observe conduct that may undermine the fairness and reliability of a death
penalty proceeding.

E. Protocol #6

Judges should do all within their power to ensure that all defendants are provided
with full discovery in all capital cases. Trial courts should conduct, at a reasonable
time prior to a criminal trial, a conference with the parties to ensure that ‘they are
fully aware of their respective disclosure obligations under the

rules, statutes, ethical standards, and the federal and state constitutions and to offer
the court’s assistance in resolving disputes over disclosure obligations.

The rules governing criminal trial procedure promulgated by the Virginia Supreme Court permit
limited discovery by defendants. The rules, for example, “do not authorize the discovery or
inspection of statements made by Commonwealth witnesses or prospective Commonwealth
witnesses to agents of the Commonwealth or of reports, memoranda or other internal
Commonwealth documents made by agents in connection with the investigation or prosecution
of the case.” No rule or law exists to require Virginia trial courts to conduct a pretrial hearing
to ensure that all parties are aware of their respective disclosure obligations, notwithstanding the
limited disclosure permitted under the rules in the first instance.

The need for improved discovery procedures and disclosure obligations, as discussed in
previous Chapters, is clear.!°° Several defendants in Virginia have been exonerated after the
discovery of exculpatory evidence that was never disclosed to the defense at trial. In the case of
Jeffery Cox, convicted of first-degree murder, several pieces of new evidence emerged after the
defendant was convicted. One eyewitness relied on by the prosecution lied about his felony
convictions on the stand and another eyewitness faced criminal charges that were dismissed
after he testified, which was not revealed to the defense.'°’ Cox was convicted in 1991 and,
after a grant of habeas relief by the Supreme Court of Virginia, released from prison in 2001.'%
Similarly, in the cases of Brian McCray and Beverly Monroe, prosecutors suppressed evidence,

15 Va, Sup. Ct. R. 3A:11(b)(2).
105 See, e.g., Chapter Five on Prosecution and Chapter Eight on State Habeas Corpus ee

7 NATL REG’Y OF EXONERATIONS, Jeffer: Cox,
http: tive. law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3128 (last visited July 27, 2013).

320

including, in the latter case, medical determinations that the victim may have committed
suicide.

A particularly egregious example is the case of Michael Hash."!° Hash was convicted of capital
murder in 2001 and sentenced to life imprisonment without the possibility of parole.'"! He was
granted federal habeas relief in 2012, based in large part on the prosecution’s improper
concealment of agreements made with various witnesses in exchange for their testimony. '”
The recent case of Justin Wolfe—sentenced to death in 2002—provides another example of the
need for greater judicial vigilance to better ensure compliance with discovery and Brady
obligations. A federal district court, in granting Wolfe a new trial in 2011, noted that “had the
prosecution complied with its Brady obligations,” the testimony of the prosecution’s key
witness, Owen Barber, “would have been seriously undermined.”"!> The federal district court
found that the prosecution (1) had “choreographed and coordinated” witness testimony; (2) did
not disclose a police report revealing that it had been law enforcement—not Barber—who had
first suggested W olfe was involved in the murder; 14 (3) withheld evidence that Barber confided
to his roommate that he acted alone in killing the victim;"!> and (4) withheld other evidence
suggesting that Barber had his own motive for killing the victim."

Additional problems may arise during the sentencing portion of a capital case. While the
prosecution is required by law to disclose prior bad acts it intends to present in aggravation of
punishment,’”” the defense should be afforded adequate time to investigate and rebut such
evidence. In the case of Joshua Andrews, for example, the trial court ordered the prosecution to
provide the defense with notice of its intent to offer any “unadjudicated criminal conduct”
during the sentencing phase of the capital trial “no later than December 1, 2006.""8 The
prosecution provided notice of unadjudicated conduct it intended to introduce at the sentencing
hearing on January 3, 2007, filed an amended notice four months later, and then on June 14,
2007, twenty-five days prior to trial, “the prosecution filed a second amended notice alleging
three new violent crimes, including two that were alleged to have occurred in prison... .
Significantly, the newly-noticed crimes were all alleged to have occurred prior to December of
2006, long before the prosecution's initial notice was due.”!!® When defense counsel moved to
exclude the new allegations of unadjudicated criminal conduct, the trial court denied the motion

109 Id.

110 Hash v. Johnson, 845 F. Supp. 2d 711 (W.D. Va. 2012).

MY Id. at 716.

Id. at 722-23 (describing intentional transfer of Hash to a correctional facility in order to expose him to a
known informant, as well as the concealment of a deal made with another witness, who later recanted his
testimony).

3 Wolfe v. Clarke, 819 F. Supp. 2d 538, 565 (E.D.Va. 2011).

M4 Td. at 548.

US Td. at 554.

16 Td. at 548-49. During these federal proceedings, Barber also recanted his trial testimony under oath and stated
that he acted alone in killing the victim. Id. at 548.

"7 Va. CODE ANN. § 19.2-264.3:2 (2013).

U8 Brief of Petitioner-Appellant at 54-55, 2010 WL 5795302, Andrews v. Commonwealth, 699 S.E.2d 237 (Va.
a

321

and also denied defense counsel's “motion for a continuance to investigate the new allegations.”

While these incidents suggest that Virginia’s rules for evidence disclosure at trial are
insufficient to protect against wrongful conviction and unfair proceedings in death penalty
cases, it is also apparent that courts must be vigilant in ensuring compliance with any discovery
and Brady obligations to prevent future miscarriages of justice.

Conclusion

The Virginia rules related to discovery in criminal cases are relatively limited, thus, courts are
constrained in their ability to compel any greater discovery than what is currently provided
under the Virginia rules. No rule exists to compel Virginia’s judges to conduct a pretrial
conference in capital cases to ensure that counsel are aware of their disclosure obligations.
Thus, in light of the limited nature of discovery in Virginia, coupled with evidence of past
failures by counsel to uphold their disclosure obligations in capital cases, the Commonwealth of
Virginia is not in compliance with Protocol #6.

Recommendation

The Assessment Team emphasizes, as it has in other Chapters included in this Report, that
Virginia’s disclosure obligations in criminal cases—particularly when a defendant’s life is at
stake—must be made more meaningful, timely, and robust in order to prevent wrongful
convictions and to correct past miscarriages of justice.'2"_ However, it is also the court’s role to
monitor disclosure of Brady and other material, particularly given the history of failures of
disclosure in Virginia, as well as the gravity of the proceedings in a death penalty case. In the
interest of accuracy, fairness, and judicial economy, it is far better for meaningful discovery to
occur at the original trial, rather than during subsequent state or federal habeas proceedings.

Thus, the Virginia Assessment Team believes that an important procedural means to give effect
to an improved discovery process would be a pretrial conference, on the record and in which the
defendant is present, to better inform the parties of their respective disclosure obligations.
Notably, in civil cases, Virginia’s rules of procedure permit a court, in its discretion, to conduct
a pretrial conference to review a range of issues related to discovery.!”7

120 Id. The Petitioner’s death sentence was subsequently overturned by the Supreme Court of Virginia on other
grounds. Andrews v. Commonwealth, 699 S.E.2d 237, 253-54 (Va. 2010) (vacating petitioner’s death sentence
renders moot several issues raised by the petitioner, including “whether the circuit court erred in permitting the
Commonwealth to present evidence of unadjudicated criminal conduct to be used during the penalty-determination
phase of the trial .. . for which notice had been given after the deadline set in the court’s discovery order and
denying Andrews’ motion for a continuance on that ground”).

121 "See Chapter Five, Prosecution, Protocol #3, for more detailed information on the Virginia Assessment Team’s
recommendations on improved discovery in criminal and capital cases.
12 See, e.g., Va. R. Civ. P. 4:13. (the pretrial conference may include review of a plan for schedule of discovery,
limitations on the scope and methods of discovery, and issues “relating to the preservation of potentially
discoverable information.”). The Court must then “make an order which recites the action taken at the
conference . . . the agreements made by the parties as to any of the matters considered” and such order “controls the
subsequent course of the action, unless modified at the trial to prevent manifest injustice.” Id.

322

The purpose of the conference is multifaceted. The conference would provide a mechanism for
detailed review of the defendant’s discovery and Brady request, and the prosecution’s response
to the request, for preservation on the record. The conference would provide an opportunity for
a detailed review of every Brady request and a more complete record of the prosecution’s
response to disclosure requests. A pretrial conference would also permit the trial court to offer
its assistance in resolving disputes over disclosure. The court, for example, can define for the
parties the kind of material that is Brady and therefore must be disclosed, which can be
individualized to the circumstances of the specific case at bar. The Court can also distill the
nature of any disclosure issues on the record. Analogous to a similar provision available under
the Virginia’s civil rules, the trial court should also create a schedule for disclosure for better
enforcement of timely compliance with discovery and Brady obligations. Finally, the use of
such a conference could later assist appellate courts in determining whether the prosecution had
knowledge of the existence of discoverable or Brady material, yet failed to disclose it.

Importantly, courts should aggressively monitor discovery in death penalty cases and implement
effective remedies when there is untimely disclosure of Brady or other material that should have
been disclosed under the Virginia tules.!22 When violations occur, the court should consider
sanctions in order to encourage timely disclosure in the future. Other remedies, such a grant of
continuance, may also be needed to ensure a fair trial.

3" As discussed at length in Chapter Five, Prosecution, Protocol #3, the Virginia Supreme Court Rule 3A:11,
which govems discovery in felony cases, must be amended to require broader disclosure by the prosecution in
felony cases.

323

324

CHAPTER TWELVE
TREATMENT OF RACIAL AND ETHNIC MINORITIES
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE

In the past twenty-five years, numerous studies evaluating decisions to seek and to impose the
death penalty have found that race is too often a major explanatory factor. Nationwide, most of
the studies have found that, after controlling for other factors, the death penalty is sought and
imposed significantly more often when the murder victim is white than when the victim is black.
Studies also have found that the death penalty has been sought and imposed more frequently in
cases involving black defendants than in cases involving white defendants and that the death
penalty is most likely to be imposed in cases in which the victim is white and the perpetrator is
black.

In 1987, the Supreme Court of the United States held in McCleskey v. Kemp! that even if
statistical evidence revealed systemic racial disparity in capital cases, this showing would not
amount to a federal constitutional violation in and of itself. At the same time, the Court invited
legislative bodies to adopt legislation to deal with situations in which there is systematic racial
disparity in the death penalty’s implementation.’

The pattem of racial disparity reflected in McCleskey and discussed below persists today in many
jurisdictions, in part because actions by prosecutors, defense lawyers, trial judges, and juries may
improperly introduce race into capital trials. These include intentional or unintentional
prosecutorial bias when selecting cases in which to seek the death penalty, ineffective defense
counsel who fail to object to systemic discrimination or to pursue discrimination claims, and
discriminatory use of peremptory challenges during jury selection.

There is no dispute about the need to eliminate any form of racial or ethnic discrimination in the
administration of the death penalty.? To accomplish this goal, however, society must identify the
various ways in which race affects the administration of the death penalty and devise solutions to
eliminate discriminatory practices.

‘ McCleskey v. Kemp, 481 U.S. 279 (1987).

2 Id. at 319. “McCleskey’s are best d to the legislative bodies[. . . as they are] better qualified
to weigh and “evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of
approach that is not available to the courts.” Id. citing Gregg v. Georgia, 428 U.S. 153, 186 (1976).

In the interest of simplifying the language of this Chapter, the ‘ssment Team will use the phrase “racial
discrimination” interchangeably with the phrase “racial and ethnic discrimination.” The Assessment Team
recognizes, however, that the concepts of race and ethnicity are distinct. See CYNDI BANKS, CRIMINAL JUSTICE
ETHICS 79 (2d ed. 2008) (describing the distinction between the concepts of race and ethnicity).

325

I. FACTUAL DISCUSSION: VIRGINIA OVERVIEW
A. Race and the History of Virginia’s Death Penalty

Prior to the U.S. Supreme Court’s reinstitution of the death penalty in 1976, which began the
modem death penalty era, the Court had found the application of the death penalty
unconstitutional in Furman v. Georgia.* Racial disparities in the application of the death
penalty—in Virginia and elsewhere—in addition to other concerns about the unfettered
discretion afforded to juries in determining outcomes in death penalty cases, led to the
invalidation of existing capital punishment statutes in 1972.° Notably, during the fifty-four year
period preceding the Furman decision, Virginia’s executions were associated with “stark racial
disparities.”° Specifically, in Virginia

[o]f the 236 persons who were executed from 1908 to 1972, 86 percent were
black []. Moreover, executions for the capital crimes of rape, attempted rape, and
armed robbery, appear to have been reserved exclusively for the punishment of
blacks. In particular, of the 41 persons executed for rape, none were white. Y et,
over this same time period, 45 percent of all persons who were incarcerated for
rape were white []. Additionally, each of the 14 persons executed for attempted
rape was black. Finally, all five armed robbery cases that resulted in executions
involved black defendants.’

B. Race in the Modern Death Penalty Era

After Furman, the Virginia General Assembly amended the Commonwealth's capital
punishment statutes to comport with the rulings of the U.S. Supreme Court, ® and the
constitutionality of the Commonwealth’s 1977 capital punishment statute was subsequently
upheld by the Supreme Court of Virginia in 1978.° Several of the death-eligible offenses which
appeared to be reserved, in practice, for black offenders before Furman—such as rape,
attempted rape, and robbery—are no longer punishable by death.‘

4 Furman v. Georgia, 408 U.S. 238 (1972).

5 Id. at 364 (Marshall, J., concurring) (noting that, from 1930 to 1972, of the 3,859 persons executed 2,066 were
black, and that of the 455 persons executed for non-homicide rape 405 were black). See also id. at 256-57
(Douglas, J., concurring) (stating that “these discretionary statutes ... are pregnant with discrimination and
discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban
on ‘cruel and unusual’ punishments”).

J. Lecis. AUDIT & REV. COMM’N OF THE VA. GEN. ASSEMB., REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL
PUNISHMENT 5 (2002), available at http://jlarc.virginia.gov/reports/Rpt274. pdf (last visited Jun. 5, 2013) [hereinafter
JLARC REPORT].

Id., at 5-7.

See VA. CODE ANN. §§ 19.2-264.2, -264.3, -264.4, -264.5 (2013).

Smith v. Commonwealth, 248 S.E.2d 135 (Va. 1978). Since the reinstatement of the death penalty in Virginia,
the Commonwealth’s death penalty laws and procedures have undergone several modifications. These are discussed
in detail in Chapter One of this Report.

10 See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) (prohibiting the execution offenders convicted of rape that did
not result in the death of the victim).

8
9

326

After Furman, the issue of racial and ethnic discrimination in the administration of capital
punishment was brought to the forefront by the U.S. Supreme Court’s decision in McCleskey v.
Kemp.'! Relying on a study conducted by David Baldus, Charles Pulaski, and George
Woodworth, McCleskey challenged the constitutionality of Georgia’s capital sentencing process
by arguing that it was applied in a racially discriminatory manner.’ Specifically, after
controlling for 230 variables, the Baldus study showed that blacks convicted of killing whites
faced the greatest likelihood of receiving the death penalty, while whites convicted of killing
blacks were rarely sentenced to death.'? The Court rejected McCleskey’s claims, finding that the
data showing racial discrepancies in the administration of the death penalty generally did not
prove the existence of intentional racial discrimination in McCleskey’s case.

The McCleskey decision invited legislatures to develop remedies for eliminating race from the
capital sentencing process.'° While Virginia has not enacted any legislation specifically
addressing racial discrimination or disparity in capital sentencing, the Commonwealth has
conducted a review of its modem death penalty system—published in 2002—part of which
examined whether race affected prosecutors' decisions to seek the death penalty, * This is
discussed in greater detail, under Protocol #8 in the Analysis section of this Chapter.’”

McCleskey v. Kemp, 481 U.S. 279 (1987).

Id. at 286.

8 Id. at 286-87, 291-92.

Id. at 297-98. Notably, the author of the five-to-four majority opinion in McCleskey, Justice Lewis F. Powell,
Jr., was later asked in retirement whether, given the chance, he would change his vote in any case. Justice Powell
replied: “*Yes, McCleskey v. Kemp.” JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL: A BIOGRAPHY 451 (2d ed.
2001).

‘5 McCleskey, 481 U.S. at 319 (“McCleskey's are best d to the legislative bodies.”).

16 JLARC REPORT, supra note 6, at 43.

17 ‘See infra notes 48-76 and accompanying text.

327

II. ANALYSIS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team’s
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
A Team’s rec de for reform.

A. Protocol #1

Jurisdictions should fully investigate and evaluate the impact of racial
discrimination in their criminal justice systems and develop strategies that strive to
eliminate it.

Racial Discrimination in Death Penalty Cases

Two reviews of the effect of racial and ethnic discrimination on Virginia’s capital punishment
system have been conducted since the reinstatement of the death penalty in 1975. The first was
conducted in 2000 by the American Civil Liberties Union of Virginia and concluded that, in
capital cases, “death sentences in Virginia continue to be influenced by the location of the crime,
the poverty of the defendant and the race of the victim.”!® The Joint Legislative Audit and
Review Commission (JLARC) conducted a second, more detailed study in 2002. JLARC’s final
report, while recognizing that those accused of killing whites received the death penalty more
than those accused of killing blacks,’® ultimately concluded that race was not a significant factor
in prosecutors’ decisions to seek a death sentence once researchers controlled for additional
factors.”” These studies are discussed in detail under Protocol #3.”

Current data reveal general patterns that race or ethnicity may be affecting the administration of
the death penalty in Virginia. While these data are not conclusive evidence that racial
discrimination affects death penalty case outcomes, they do suggest that the issue needs to be
examined further. For example, since reinstating the death penalty through May 31, 2013,
Virginia has carried out 110 executions.” As illustrated in Table 1, below, of those 110
executions, eighty-nine inmates were executed for the murder of a white victim. Four white
offenders were executed for killing a black victim; by contrast, thirty-seven black offenders have
been executed for killing a white victim:

‘8 AM. CIVIL LIBERTIES UNION OF VA., UNEQUAL, UNFAIR AND IRREVERSIBLE: THE DEATH PENALTY IN VIRGINIA

5 (2000) [hereinafter ACLU Report].
is JLARC Report, supra note 6, at 43 (“Specifically, 44 percent of all defendants who were charged with death-
eligible crime in which at least one of the victims was white faced a death prosecution [citation omitted]. This rate
was over 100 percent greater than the death prosecution rate of 21 percent faced by defendants who were charged
with a death-eligible crime in which the victims were black.”).

Id.

a

See infra note 48 and accompanying text.

CRIMINAL JUSTICE PROJECT OF THE NAACP LEGAL DEFENSE & EDUC. FUND, DEATH Row U.S.A. WINTER
2013, 8, available at http://www.naacpldf.org/files/publications/D RUSA_Winter_2013.pdf [hereinafter DEATH ROW
U.S.A]. The Assessment Team was unable to determine race of the defendant and victim for all capital cases in
Virginia, such as cases in which a defendant was sentenced to death but not executed due to a commuted sentence,
vacated death sentence, reversed conviction, or suicide or other death (non-execution) while on death row.

328

Table 1

Virginia E: ions by Race of Offender/Race of Victim (as of April 25, 2013)?
Race of Victim
White Black | Hispanic | Asian Other Total

White 49 4 1 2 56
Black 37 13 50

Race of Executed Offender | Hispanic 2 2
Asian 1 - - 1
Other - 1 - - : 1
Total 89 18 0 1 2 110

According to 2010 census data, blacks appear to be overrepresented among Virginia’s executed
inmates: although only 20.7% of Virginia’s population,” blacks constitute 45.5% of the state’s
executions.» In general, minorities are also overrepresented among the current death row
population in comparison to their population in the Commonwealth: four of the ten inmates on
death row in Virginia are black and one is Latino.”

ury Selection

There is also evidence of potential racial bias in jury selection for capital murder cases. At least
four black defendants have been sentenced to death by all-white juries since the death penalty
was reinstated in Virginia.?” One of those defendants, Johnny Watkins, Jr., was sentenced to
death in Danville for the murder of two white convenience store clerks and both juries that
sentenced him to death were comprised of all-white jurors.”® In his clemency petition, Watkins
argued he “was sentenced to die by juries from which all black citizens had been systematically
excluded.”’® He stated that “[tJhe six defendants sentenced to death by Danville juries have
been black and only five of the 72 jurors involved in seven trials were black.”*° In Danville,

= ia

°4 The Black Population: 2010, U.S. CENSUS BUREAU, http://www.census.gov/prod/cen2010/briefs/c201 0br-
06.pdf (last visited May 31, 2013).

25 "See DEATH Row U.S.A., supra note 22.

26 Td. at 63. Racial disparities in the Virginia death penalty system are most apparent in the City of Danville.
Between 1978 and 1997, there were 108 murders in Danville of which twenty-three were eligible to be prosecuted as
capital cases. ACLU Report, supra note 18, at 45 n.1. Eighteen of the murders were charged as capital murder and
the death penalty was sought in sixteen of those cases. Id. The defendants in the sixteen murder cases for which the
death penalty was sought were black while the two capital defendants for whom the death penalty was not sought
were white.” During that time period, nine capital murder charges resulted in death sentences for seven different
defendants, all of whom were black. Id. Danville has since sentenced one white defendant to death in 2001 and he
was executed in 2008. Id.

7 Satcher v. Commonwealth, 421 S.E.2d 821 (Va. 1992); Donald P. Baker, Gilmore Stops Execution for First
Time; Mental Illness Of Inmate Cited, WASH. Post, May 13, 1999, at Al (case of Calvin Swann); Peter Baker, Va. 's
Execution of Double Murderer May be Last for its Electric Chair; State Plans to Allow Death by Lethal Injection
Starting in July, WASH. Post, Mar. 4, 1994, at D6 (case of Johnny Watkins, Jr.); Killer of Portsmouth Store
Manager Loses High Court Appeal, VA. PILOT AND LEDGER-STAR, May 29, 1991, at D5 (case of Coleman Gray).

S Bob Piazza, Watkins Executed for Two Slayings Governor Refused Plea for Clemency, RICHMOND TIMES-
DISPATCH, Mar. 4, 1994, at B1.
°° Frank Green, Clemency Petition Says Racism Tainted Process, Allen Asked to Spare Danville Killer's Life,
RICHMOND TIMES-DISPATCH, Feb. 24, 1994, at B5.
3° Piazza, supra note 28.

329

where until 2001 only black defendants had been sentenced to death, blacks comprised 6.9% of
jurors in those cases while blacks comprise 48.6% of the city’s population.”

Other Areas of the Criminal Justice System

It does not appear that any entity in Virginia has undertaken a review of whether racial or ethnic
discrimination is affecting the criminal justice system at large.

Conclusion

Commendably, entities in Virginia have examined the effect of race on prosecutorial discretion
to seek a capital murder indictment and to seek the death penalty. However, Virginia has not
fully investigated the impact of racial discrimination in the criminal justice system as a whole.
Thus, the Commonwealth of Virginia is in partial compliance with Protocol #1.

3} State & County Quick Facts: Danville City, Virginia, +~U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/states/51/51590.html (last visited May 31, 2013).

32° Other capital jurisdictions, by contrast, have sponsored examinations of the treatment of racial and ethnic
minorities in their criminal justice systems. For example, Florida has undertaken three initiatives to explore the
impact of racial discrimination in its criminal justice system. See Fla. Su. Ct. Racial & Ethnic Bias Comm’n,
Executive Summary: Reports and Recommendations of the Florida Supreme Court Racial and Ethnic Bias
Commission (Deborah Hardin ed., 1990-91), available at http://www. florid; t.org/pub_info/d
racial.pdf; Frank P. Scruggs, II et al., Preliminary Assessment: A First Look at Reporting on Implementation
Progress and Identifying Issues That Require Additional Action (2000), available at http://www.flcourts.org/gen_
public/family/diversity/bin/bias_study2.pdf. The third initiative was the Governor’s Task Force on Capital Cases,
established to “study evidence of discrimination, if any, in the ing of d d in capital cases, including
consideration of race, ethnicity, gender.” See Fla. Exec. Order No. 2000-1 (2000); see also Sydney P. Freedberg &
William Yardley, Lethal Injection Approved, ST. PETERSBURG TIMES, Jan. 7, 2000. In addition, Tennessee has
sponsored at least two initiatives to investigate and evaluate the impact of racial discrimination in its criminal justice
system and to strive to eliminate any such discrimination. See Tenn. Comm’n on Racial & Ethnic Fairness, Final
Report of the Tennessee Commission on Racial and Ethnic Fairness to the Supreme Court of Tennessee (1997),
available at http://www.tsc.state.tn.us/sites/default/files/docs/report_from_commission_on_racial__ethnic_
faimmess.pdf; Tenn. Comm. to Implement the Recommendations of the Racial & Ethnic Fairness Comm’n and the

Gender Faimess Comm’n, Implementing Fairness: The Report of the C: to Impl the dation
of the Racial and Ethnic Fairness Commission and the Gender Fairness Commission (2000), available at
http://www.tsc.state.tn.us/sites/default/files/d t_of_ ittee_to_impl t racia_ethnic__gender_faimes
s.pdf.

330

B. Protocol #2

Jurisdictions should collect and maintain data on the race of defendants and
victims, on the circumstances of the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of the evidence for all
potential capital cases (regardless of whether the case is charged, prosecuted,
or disposed of as a capital case). This data should be collected and
maintained with respect to every stage of the criminal justice process, from
reporting of the crime through execution of the sentence.

Several Virginia agencies collect and maintain data on some of the areas described in Protocol
#2.

Since 1974, the Department of State Police has maintained a uniform crime reporting system
“for the purpose of receiving, compiling, classifying, analyzing and publishing crime statistics of
offenses known, persons arrested, and persons charged and other information pertaining to the
investigation of crime and the apprehension of criminals.’*’ The uniform crime reporting system
collects data on the race, age, and gender of victims and offenders; however, the data is listed in
aggregate, and does not include a separate category for capital offenses.

In addition, Virginia law requires the clerk of the circuit court in which a capital indictment is
retumed to file a certified copy of the indictment with the clerk of the Supreme Court of Virginia
that is to be “maintained in a single place . . . and . . . available to members of the public upon
request.”°* While this requirement covers all capitally charged cases, it does not include cases in
which the Commonwealth could have but chose not to charge the offense as a capital offense.
Furthermore, the type of information included in an indictment may relate to the circumstances
of the crime, but is unlikely to include data on race or aggravating and mitigating circumstances.
The Supreme Court of Virginia also maintains a database that includes records of all appeals in
capital cases where a death or life sentence was imposed since 1978, and all capital cases that
resulted in a sentence of life imprisonment that were first appealed in the Virginia Court of
Appeals beginning in 1986.*° The types of data available from appellate opinions, however—
such as information on the defendant or victim’s race and the circumstances of the offense—vary
with each case.

Virginia law also states that “the [trial] court shall, before imposing a sentence, direct a probation
officer . . . to thoroughly investigate the history of the defendant and any and all other relevant
facts, to the end that the court may be fully advised as to whether the sentence of death is
appropriate and just.”°° The specific content of post-sentence reports is unknown because the
reports are sealed after sentencing and available only by court order.*” However, they are made

53 Va, CODEANN. § 52-25 (2013).
Va. CODEANN. § 19.2-217.1 (2013).

35 See JLARC REPORT, supra note 6, at 67.
56 Va. CODEANN. § 19.2-264.5 (2013).

37 Va. CODE ANN. § 19.2-299 (2013).

331

available “at any time to any criminal justice agency...[and] to any agency where the accused is
referred for treatment by the court or by probation and parole services.”

Furthermore, Washington and Lee University School of Law’s Virginia Capital Case
Clearinghouse (VC3) has also voluntarily collected data on capital trials throughout the
Commonwealth, including “the defendant’s name, race, sex, case citation, aggravating factor,
predicate felony, race and sex of the victim, county of conviction, and current status.*? This
information, while not complete in each case, is available to the public on VC3’s website.?

Importantly, the unavailability of accurate and complete data affects the ability of the
Commonwealth to undertake a comprehensive review of its death penalty system. JLARC
researchers who conducted such a review recounted the difficulty they encountered, reporting
that "[s]electing a universe or sampling frame for the study was complicated by the unique data
problems associated with this subject." JLARC researchers noted that “Virginia does not
maintain a centralized database containing information on murder cases that can be prosecuted as
capital cases.”“? Thus the researchers had to examine files maintained by State Police and the
Sentencing Commission, match data from the Sentencing Commission against cases in the
Supreme Court of Virginia’s database, review indictments for persons arrested for murder,
interview local prosecutors, and consult other sources in order to complete their review of death
penalty cases that was released in 2002.‘ Additionally, staff visits were required in order to
compile the necessary information on each case included in the study.“* Perhaps due in large
part to the difficulty of obtaining the necessary data to conduct a comprehensive review of the
capital punishment system, JLARC limited the scope of its review to a sample of localities in the
Commonwealth during a five-year period (1995-1999).*°

Conclusion

Some data on the race of defendants and victims, the circumstances of the crime, and
aggravating and mitigating circumstances is collected and maintained by various Commonwealth
entities. However, this information is not maintained in a centralized database and may not
include important and relevant data for each case. Therefore, the Commonwealth of Virginia is
in partial compliance with Protocol #2.

Recommendation
Virginia should develop and maintain a centralized database that contains detailed information

about all cases that can be prosecuted as capital cases. To achieve this end, Virginia should
designate an appropriate entity to collect, analyze, and make publicly available salient facts on

38
Id.
%° See generally VA. CAPITAL CASE CLEARINGHOUSE, Virginia Capital Litigation Data,
http://www.vc3.org/resources/page.asp?pageid=561 (last visited A pril 5, 2013).
See id.
JLARC REPoRT, supra note 6, at 19.
® Id. at 19-20, 71.
8d.
“4 See id. at 19-20.
8 Id. at 19.

332

all death-eligible cases in Virginia, regardless of whether the case was resolved at trial or through
a plea negotiation.”® As discussed in Chapter Seven on Proportionality Review, it is imperative
that the collection of this data be sanctioned by the Supreme Court of Virginia to ensure its
reliability, trustworthiness, and admissibility.

While JLARC noted the challenges it faced in data collection of its 2002 study on capital cases,
prior study commissions also have made recommendations to improve the collection of data: a
2007 report by the Supreme Court of Virginia recommended that Virginia “[e]quip[] courts of
record with computer assisted transcription capability to produce text transcripts that can be
searched and transmitted electronically and include links to evidence.”*” Creation of a data
collection tool would provide a mechanism through which the Commonwealth could determine
whether race or ethnicity inappropriately influences outcomes in capital cases.

C. Protocol #3

Jurisdictions should collect and review all valid studies already undertaken to
determine the impact of racial discri ion on the administration of the death
penalty and should identify and carry out any additional studies that would help
determine discriminatory impacts on capital cases. In conducting new studies,
states should collect data by race for any aspect of the death penalty in which race
could be a factor.

Jurisdictions and independent researchers confront considerable difficulty in isolating race of the
defendant or victim from other variables that may affect outcomes in death penalty cases. As a
general matter, investigations and evaluations into the impact of racial discrimination in a
criminal justice system vary in scope, specificity, and reliability. These investigations may, for
example, encompass several decades or only a handful of years.’® Some may select a sample
size for analysis while others rely on statewide data.’® The explanatory power of a study
depends largely on the depth of statistical analysis. In their more basic forms, studies might only
compare the percentages of capitally-convicted persons sentenced to death across racial

For further discussion, see Chapter Seven on the Direct Appeal Process and Proportionality Review.
Sup. CT. OF VA., COMMISSION ON VIRGINIA COURTS IN THE 21ST CENTURY: TO BENEFIT ALL, TO EXCLUDE
None 40 (2007), available at http://www.courts.state.va.us/courtadmin/aoc/judpln/reports/final_report.pdf (last
visited Mar. 29, 2013). The Court also rec Jed several other technological improvements that would
“increase the access, convenience and ease of use of the courts for all citizens, and [] enhance the quality of justice
by increasing the courts’ ability to determine facts and reach a fair decision.” Id. at 39-40.
“S Compare MICHAEL LENZA ET AL., THE PREVAILING INJUSTICES IN THE APPLICATION OF THE Missour! DEATH
PENALTY (1978 TO 1996), 32 Soc. JusT. 151, 151 (2005) (examining eighteen years’ worth of capital sentencing
data), with J. Leis. AUDIT & REV. COMM’N OF THE VA. GEN. ASSEMB., REVIEW OF VIRGINIA’S SYSTEM OF CAPITAL
PUNISHMENT 19 (2002), available at http://jlarc.virginia.gov/reports/Rpt274.pdf [hereinafter JLARC Report]
{examining five years’ worth of capital sentencing data).

Compare THOMAS J. KEIL & GENNARO F. VITO, RACE AND THE DEATH PENALTY IN KENTUCKY MURDER TRIALS:
AN ANALYSIS OF POST-GREGG OUTCOMES, 7 JUST. Q. 189, 194 (1990) (analyzing a statewide dataset of capital cases),
with JLARC REPORT, supra note 6, at 19-23 ( ining a hicall dataset of capital cases).

333

categories; alternatively, they might control for a wide variety of non-racial factors that, could
explain variances in capital case outcomes in an effort to isolate the effect of racial factors,”

Existing Studies

In 2000, the American Civil Liberties Union of Virginia undertook a review of the
Commonwealth’ s capital punishment system, including an examination of race and the death
penalty.°’ The report analyzed murders and death sentences over a twenty-year period using the
FBI’s Supplemental Homicide Reports, and found that “41 percent of victims of apparently
capital crimes in Virginia were black” and “that of the 131 crimes for which a death sentence
was imposed during that same period, only 20 percent involved black victims.””? The report
summarized:

In rape-murder incidents involving whites or blacks, the probability that the
offender will be sentenced to death in Virginia is about 19% if the victim is black.
If the victim is white, the probability is 42%—over two times greater.... In
robbery-murder incidents involving both white or black offenders, the probability
that the offender will be sentenced to death is about 2.5% if the victim is black. If
the victim is white, the probability is about 8.5% —over three times greater.°°

The 2000 report represents an important step in examining the intersection between race and the
death penalty in the modern death penalty era in the Commonwealth; however, the study did not
attempt to isolate the effect of race by controlling for other factors that may influence whether a
defendant will be sentenced to death.

5° Compare JOHN F. GALLIHER & DAVID KEYS, REPORT TO THE OFFICE OF THE MISSOURI PUBLIC DEFENDER ON
PROPORTIONALITY IN SENTENCING IN DEATH ELIGIBLE CASES 130-55 (1994) (comparing capital case outcomes for
black and white defendants), with JLARC REPORT, supra note 6, at 34 (using multiple-regression statistical analysis
to isolate the presence of racial discrimination in capital cases).
51 ACLU Report, supra note 18:
This study analyzed a database containing two decades of FBI Supplemental Homicide Reports
for Virginia. These reports compile information reported by Virginia law enforcement agencies
about each murder that has taken place in every city and county in the state for the 20-year period.
The age, race and/or ethnic origin of each victim and each known offender is tracked, as well as
certain circumstances surrounding each murder, the kind of weapon used and the relationship
between the victim and offender. Because certain crimes, such as rape-murder and robbery-murder
are coded, it is possible to identify most, but not all, of the murders that are potentially capital
according to Virginia’s statute. The evolution of the statute—from six definitions of capital
murder in 1977 to twenty in 1997 [currently fifteen in 2013]—cannot be fully taken into account.
The FBI coding system picks up four categories of potentially capital murders: 1) rape-murder; 2)
robbery-murder; 3) murder by an incarcerated convict and 4) murder of more than one person in
the same transaction. Use of these codes raises issues of both under inclusion and over inclusion.
With respect to under inclusion, these codes do not represent all statutorily defined capital crimes.
Murder of a police officer and murder for hire are examples of capital crimes not picked up by any
code in the FBI coding system. With respect to over inclusion, attempted rape-murder and
attempted robbery murder did not become capital crimes until the 1980s.”
ACLU REPpoRT, supra note 18, at 46.
Id. at 38, 40.
1 See discussion of JLARC study, infra notes 55-69.

334

JLARC Review of Capital Cases in Virginia in 2002

In 2002, the Joint Legislative Audit and Review Commission (JLARC) examined a number of
areas related to the administration of capital punishment in Virginia. JLARC’s study was
undertaken partly “[iJn response to concerns about . . . the use of prosecutorial discretion by
Commonwealth Attorneys in the application of the State’s death penalty statutes; and the fairness
of the judicial review process for persons who have been sentenced to die.”°°

JLARC noted that “one of the most serious complaints is that the system is racially biased,
systemically exposing black persons who are arrested for capital murders to the death penalty in
larger percentages than their white counterparts.”*° Consequently, a portion of the study
examined whether decisions to seek the death penalty in capital-eligible cases are based on the
race of the defendant or the race of the victim. JLARC analyzed prosecutorial discretion at two
stages of the capital decision-making process: whether prosecutors returned indictments for
capital murder in capital-eligible cases, and whether prosecutors “chose to actually seek the
death penalty throughout the adjudication process.”°”

JLARC used the following variables to assess prosecutorial discretion in seeking a capital
murder indictment: type of jurisdiction; presence of aggravators; whether the offense involved
rape; presence of forensic evidence (DNA, fingerprints, and/or ballistics); presence of witnesses;
existence of a confession to any or all elements of the offense; violent infractions the defendant
committed while incarcerated; number of pieces of evidence accumulated; race, sex, and age of
defendant; race, sex, and age of victim; relationship between defendant and victim; and the
“character” of the victim.® Specifically, JLARC characterized each victim as having “[nJormal”
character or, instead, “negative” characteristics: “Prostitute,” “Drug Dealer,” “Drug User/Buyer,”
“Gang Member,” “Other negative,” and/or “Inmate.”

JLARC also examined prosecutorial discretion by comparing “capital-eligible cases in which the
prosecutor sought the death penalty throughout the adjudication process” to “those capital-
eligible cases in which they did not.”© In determining whether race of the defendant or victim
affected the prosecutor’s decision to continue to seek the death penalty throughout the
adjudication process, JLARC controlled for the following variables: type of jurisdiction; whether
the offense involved rape; presence of forensic evidence (DNA, fingerprints, and/or ballistics);
presence of witnesses; existence of a confession to any or all elements of the offense; violent
infractions the defendant committed while incarcerated; accumulation of evidence; race, sex, and
age of defendant; race, sex, and age of victim; relationship between defendant and victim; and
the character of the victim.”

3 JLARC REPorT, supra note 6, at Preface.

°° Td. at

7 Td. at 29.

Id. at app. C-2 to -3. JLARC characterized each victim as being “of solid character” or “of not solid character.”
Id. atG-5.

°° Td. at G-5.

Id. at 34.

51 Td. at app. F-2 to -3.

335

After controlling for these factors, the study’s general conclusions were that gender of the victim
and the type of locality in which the offense was committed were significant factors in
determining whether prosecutors sought capital indictments.” Specifically, JLARC noted that
“if the defendant was charged with a capital murder in which at least one of the victims was
female, their odds of being indicted for capital murder were, on average, more than six times
greater than for those defendants whose alleged victims were all male.” As for locality, the
“defendants committing offenses in medium-density localities were most likely to face the death
penalty.” “[T]he odds that prosecutors in high-density areas would seek the death penalty in any
given case were only twelve percent of the odds for prosecutors in medium-density localities,”
and in low-density localities “only twenty-four percent of the odds” of medium-density
localities.”** Regarding the difference in capital murder indictment rates between high-density
and low- and medium-density localities, JLARC offered the following as a possible explanation:

[Commonwealth’s Attorneys] noted that in capital cases, urban jurors are
generally reluctant to vote in favor of an execution and will sometimes impose a
much higher burden of proof on the prosecution. As a result, these prosecutors
indicated that they generally prefer to seek a conviction for first-degree murder.

JLARC also found that “prosecutors were over three times more likely to seek the death penalty
[in a capitally-indicted case] if the victim is white.” 86 However, the authors noted that “when
the character of the victim was accounted for in the regression model, the association between
the race of the victim and[] whether the prosecutor sought the death penalty in the case lost its
statistical significance.”®” Regarding its findings on the effect of race on prosecutorial discretion
to seek the death penalty throughout the adjudication process, JLARC stated that

[a]n analysis of the bivariate association between the race of the victims and
whether local prosecutors pursued the death penalty did initially reveal
statistically significant death prosecution rates based on the race of the victim.
Specifically, 44 percent of all defendants who were charged with death-eligible
crime in which at least one of the victims was white faced a death prosecution.
This rate was over 100 percent greater than the death prosecution rate of 21
percent faced by defendants who were charged with a death-eligible crime in
which the victims were black. However, when the character of the victim was
accounted for in the regression model, the association between the race of the
victim and whether the prosecutor sought the death penalty in the case lost its
statistical significance.

This finding was explained by data which revealed that black victims in death-
eligible cases were more likely to be involved in illegal activities such as drug
use, drug dealing, and prostitution. Some prosecutors believe this diminished

82 Id. at 34. The issue of prosecutorial decision-making in capital cases is discussed at length in Chapter Five on

Prosecution.

Id. at 34.

‘ Id. at 43. Geographic disparity is discussed at greater length in Chapter Five on Prosecution, Protocol #1.
° Id. at 31.

8 Td. at 43,

7 Id.

336

their value as sympathetic victims, thereby decreasing the likelihood of a
successful outcome in a capital murder case. Rather than risk losing in the
sentencing phase of a capital murder trial, some prosecutors stated that they
would either negotiate a plea agreement with the defendant’s lawyers or try the
defendant for first-degree murder.

In short, JLARC stated that lack of sympathy for victims thought to have been involved with
illegal activity might explain why prosecutors were three times more likely to seek the death
penalty for defendants who killed at least one white victim than for defendants who killed non-
white victims.

Future Studies

Importantly, JUARC’s review was confined to an analysis of sample cases occurring within the
five-year period from 1995 through 1999—fourteen years ago. In addition, JLARC’s
examination of race and ethnicity focused on its impact on prosecutorial decision-making.”” The
study was not designed to address the effect race may have on a jury’s decision to impose the
death penalty, which is a crucial decision-making point in the progression of a capital case.

With the benefit of better data collection, future studies not only may examine statewide data
encompassing all capital cases in Virginia since the death penalty’s reinstatement, but they also
may attempt to isolate the effect of race or ethnicity by controlling for different and additional
variables than those examined by JLARC.” For example, the JLARC review attempted to
isolate the factor of race by controlling for the victim’s character .”” This approach is in contrast
to the methodology of researchers who have conducted similar studies in other capital
Jurisdictions and a future study may determine that this is an unhelpful or unsuitable control
variable.

Any future reviews of the Commonwealth’s death penalty system should attempt to address
these limitations of the 2002 JLARC report. An examination of the factors affecting jury
decision-making might also explain why, from 1995 through 1999, forty-six individuals were
convicted of capital murder but only twenty-four of these defendants received a death sentence.”

Id. (citations omitted).

Id.

Id. at Preface.

7\ For example, the Baldus Study examined by the courts in McCleskey v. Kemp controlled for 230 variables. See
McCleskey v. Kemp, 481 U.S. 279, 325 (1987) (Brennan, J., dissenting).

7 JLARC REpoRT, supra note 6, at F-5.

73 For example, a study published in 2006 by the National Institute of Justice found that, when controlling for
variables such as “heinousness of the crime” or the presence of “aggravating and mitigating factors,” there was “no
evidence of racial bias in either USAO re ions or the AG decisions to seek the death penalty.” The study
does not appear to have controlled for “character of the victim” or sympathy. See Stephen P. Klein, Richard A.
Berk, & Laura J. Hickman, RACE AND THE DECISION TO SEEK THE DEATH PENALTY IN FEDERAL CASES (Rand 2006),
executive summary available at https://www.ncjrs.gov/pdffiles1 /nij/grants/214729.pdf.

™  JLARC REPORT, supra note 6, at Report Summary II.

3371

Conclusion

The commission of the JLARC study is an important recognition of the need to ferret out and
eliminate any discrimination that may still exist in the current operation of the Commonwealth's
capital punishment system.” The JLARC review, however, was limited to only a sample of
cases between 1995 and 1999; furthermore, this review did not examine whether race or
ethnicity affects a jury’s decision to impose a death sentence. Thus, the Commonwealth is in
partial compliance with Protocol #3.

Recommendation

Obtaining accurate, reliable data on the effect of race on capital cases and determining whether
racial discrimination affects the criminal justice system—and death penalty cases in particular—
is essential to ensuring that the Commonwealth provides due process and equal protection of the
law. In order for Virginia to determine whether race or ethnicity of the defendant and/or victim
affects the outcome of death penalty cases, a revised and updated study is necessary to provide
an accurate assessment of the Commonwealth’s current capital punishment system, especially in
light of the dramatic changes that have occurred in capital charging and sentencing in the
Commonwealth over the last decade. Thus, Virginia should undertake a contemporary and
comprehensive review of the effect of race on death penalty proceedings. Virginia should
consult with social scientists who have collected relevant data and undertaken similar
examinations in determining how to carry out this review of whether race or ethnicity affects
death penalty case outcomes.”°

Furthermore, by creating and maintaining a centralized database of capital cases, as discussed in
Protocol #2, Virginia would significantly reduce the burden on any entity undertaking any future
review or analysis of Virginia’s death penalty system.

7 See id. at Report Summary I (“This review comes at a time when serious questions are being raised about the
State’s use of the death penalty. One of the most serious complaints is that the system is racially biased,
systematically exposing black persons who are arrested for capital murder to the death penalty in larger percentages
than their white counterparts.”).

78 For example, in its 1990 review of twenty-eight studies conducted at the national, state, and local levels as to
whether race was a factor influencing death penalty sentencing, the U.S. General Accounting Office “surveyed 21
criminal justice researchers and directors of relevant organizations whose work relates to death penalty sentencing to
identify additional research.” See U.S. GEN. ACCOUNTING OFFICE, DEATH PENALTY SENTENCING: RESEARCH
INDICATES PATTERN OF RACIAL DISPARITIES 2 (1990).

338

D. Protocol #4

Where patterns of racial discrimination are found in any phase of the death
penalty’s administration, jurisdictions should develop, in consultation with legal
scholars, practitioners, and other appropriate experts, effective remedial and
prevention strategies to address the discrimination.

Within the scope of its examination, JLARC found no statistically significant patterns of racial
discrimination in prosecutor’s decisions to seek the death penalty.’’ In addition, since the
completion and release of the JLARC study in 2002, the Assessment Team is unaware of any
additional efforts to comprehensively examine whether patterns of racial discrimination exist in
the administration of Virginia’s capital punishment system. Accordingly, the Commonwealth of
Virginia has collaborated with legal scholars, practitioners, and other experts to develop remedial
and preventative strategies to address any identified racial discrimination in the administration of
the death penalty. Therefore, Protocol # is inapplicable to the Commonwealth of Virginia.

E. Protocol #5

Jurisdictions should adopt legislation explicitly stating that no person shall be put to
death in accordance with a sentence sought or imposed as a result of the race of the
defendant or the race of the victim. To enforce such a law, jurisdictions should
permit defend and i to establish prima facie cases of discrimination based
upon proof that their cases are part of established racially discrimi: y patterns.
If such a prima facie case is established, the State should have the burden of
rebutting it by substantial evidence.

The Commonwealth of Virginia has not adopted nor introduced legislation explicitly stating that
no person shall be put to death in accordance with a sentence sought or imposed as a result of the
race of the defendant or the race of the victim. Therefore, Virginia is not in compliance with
Protocol #5.

Recommendation

In order for Virginia to develop an effective remedy to ameliorate discrimination in death penalty
cases, the Commonwealth must first determine whether race of the victim and/or defendant
affects capital case outcomes in Virginia as discussed at length under Protocols #2 and #3. In
order to ameliorate any identified discrimination, Virginia should adopt legislation explicitly
stating that
e no person shall be put to death in accordance with a sentence sought or imposed as a
result of the race of the defendant or the race of the victim;
e defendants and inmates can establish prima facie cases of discrimination based upon
proof that their cases are part of established racially discriminatory patterns; and
e if such a prima facie case is established, the State should have the burden of rebutting it
by substantial evidence.

77 JLARC REPORT, supra note 6, at 43.

339

The Assessment Team recognizes that this is a complex area of law.”® However, in McCleskey,
the U.S. Supreme Court invited states to address the issue via legislation’? and—notably—the
burden- shifting model suggested by this Recommendation has proved workable in other
contexts.

F. Protocol #6

Jurisdictions should develop and implement educational programs applicable to all
parts of the criminal justice system to stress that race should not be a factor in any
aspect of the death penalty’s administration. To ensure that such programs are
effective, jurisdictions also should impose meaningful sanctions against any state
actor found to have acted on the basis of race in a capital case.

The principal actors in the criminal justice system are law enforcement officers, prosecutors and
defense counsel, and judges. The first part of Protocol #6 requires that these actors be educated
on the inappropriate consideration of race in administering the death penalty; the second part
pertains to the sanctions actors face for carrying out his/her duties on the basis of racial
considerations.

Actors at every level of the Virginia criminal justice system should be meaningfully educated
about the inappropriateness of considering race in the administration of justice and, in particular,
the seriousness of the implications that such considerations have in death penalty proceedings.
This is especially important given the pervasiveness of implicit bias and the harmful ways it can
manifest itself in criminal cases.*' Implicit bias “leaves open the possibility that even those
dedicated to the principles of a fair justice system may, at times, unknowingly make crucial
decisions and act in ways that are unintentionally unfair.”*’ While actors in the criminal justice
system may be aware that race in an inappropriate consideration in criminal proceedings,
grappling with implicit bias requires serious attention and instruction.®

7% See, e.g., N.C. GEN. STAT. § 154-2010 (2011) (repealed [in substantial part] in 2013); see also S.B. 461, 2009
REG. SESS., GEN. ASS. (N.C. 2009) (“No person shall be subject to or given a sentence of death or shall be executed
pursuant to any judgment that was sought or obtained on the basis of race.”), available at
http://www.ncleg. ions/2009/Bi [PDF/S461v6.pdf. See also Michael Mannheimer, Kentucky
Racial Justice Act: Workable Remedy or Window Dressing?, LEX LOCI, Dec. 2009, at 18-19.

McCleskey v. Kemp, 481 U.S. 279, 319 (1987) (“Legislatures [] are better qualified to weigh and ‘evaluate the
results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not
available to the courts.’” (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976))).

80 Id. at 352 (Blackmun, J. dissenting) (noting, in a portion of his dissent joined by three other justices, that in
Batson cases “[o]nce the defendant establishes a prima facie case, the burden shifts to the prosecution to rebut that

case”).
®! PAMELA M. CASEY ET AL., HELPING COURTS ADDRESS IMPLICIT BIAS: RESOURCES FOR EDUCATION (National
Center for State Courts, 2012). available at

http://www.ncsc.org/~/media/Files/PD F/T opics/Gender% 20and% 20Racial%20Fairness/IB_report_033012.ashx
(analyzing various states’ attempts to address implicit bias in the criminal justice system).

Id. at 2.
Studies have shown that “simply knowing about implicit bias and its potentially harmful effects on judgment
and behavior may prompt individuals to pursue corrective action.” Id. at app. G-5.

83

340

Law Enforcement Officers

The Virginia Department of Criminal Justice Services (DCJS) is charged with establishing
minimum training standards for law enforcement officers in Virginia and regulating Virginia’s
law enforcement training academies." DCJS publishes the Virginia Criminal Justice Training
Reference Manual, which provides “compulsory minimum entry-level, in-service and advanced
training standards for criminal justice officers and certified training academies.”® The training
standards state that a trainee must be tested on “identify[ing] factors that may contribute to
biased policing.”®° The manual also requires that officers be trained to identify the consequences
of bias-based policing and of impartial law enforcement, and to “identify methods that an officer
may use to prevent bias from determining a law enforcement intervention.”*” DCJS also has
published a Model Policy on Bias Reduction, which was last revised in 2010."° The policy states
that law enforcement officers

[S]hall exercise [their] sworn duties, responsibilities, and obligations in a manner
that does not discriminate on the basis of race, sex, gender, national origin,
ethnicity, age, or religion. ... Officers shall not stop, detain, arrest, search, or
attempt to search anyone based solely upon the person’s race, sex, sexual
orientation, gender, national origin, ethnicity, age, or religion.”

The policy also includes specific recommendations for training: “Officers . . . and all personnel
shall receive ongoing training in interpersonal communications skills, cultural, racial, and ethnic
diversity, and courtesy.”°°

With respect to sanctions, the policy provides, “Actions Prohibited by this order shall be cause
for disciplinary action, up to and including dismissal.”®! The model policy, however, is not
required to be adopted by individual law enforcement agencies.”

In addition, the Virginia Law Enforcement Professional Standards Commission (VLEPSC)
requires that accredited law enforcement agencies possess “[a] written directive prohibit[ing]
officers from engaging in bias-based policing,” which must include
a. A definition of bias-based policing;
b. A requirement that all sworn employees receive initial and on-going proactive
training in cultural diversity; and

51 VA. CODE ANN. § 9.1-102(2), (4), (13), (14) (2013). The issue of law enforcement training is also in Chapter
Two on Law Enforcement Identifications and Interrogations.

85 VCJTRM p. 1 of PDF (letter).

8 Td. at 169.

7 Td. at 98.

88 The Model Policies for Virginia Law Enforcement Agencies, VA. DEP’T OF CRIMINAL JUSTICE SERVS. (2010)
available at http://www.dcjs.virginia.gov/cple/sampleDirectives/ (follow hyperlink for “Bias Reduction/Cultural
Diversity”).

Id.

° Id.

1 Id
2 1a.

341

c. A requirement that all complaints of bias-based policing shall be thoroughly
investigated through the agency’s internal affairs process. ?

While state law does not require VLEPSC accreditation,“ as of May 2013, VLEPSC has
accredited eighty-four of Virginia’s 378 law enforcement agencies.”°

Prosecutors and Defense Counsel

All attomeys licensed to practice law in Virginia, including prosecutors and defense counsel,
must complete twelve hours of approved continuing legal education (CLE) each year, including
at least two hours in the area of legal ethics or professionalism.*° While it is possible that
Virginia offers CLE programs stressing that race should not be a factor in any aspect of the
administration of justice, there is no requirement that attorneys attend such programs.*” The
Principles of Professionalism, published by the Virginia State Bar Commission on
Professionalism, direct attorneys to “avoid all bigotry, discrimination, or prejudice.” 8 However,
the Principles do not serve as a basis for disciplinary action or civil liability.

Defense counsel appointed to represent indigent capital defendants and death row inmates
through the Virginia Indigent Defense Commission (VIDC) must complete ten hours of required
training every two years, but no training is required specifically on educating attorneys about the
impermissible use of race in the administration of justice.!°° However, attomeys employed by
the Regional Capital Defender offices may, through required training on jury selection, receive
training on identifying biased jurors during voir dire.”

Commonwealth’s Attorneys, including prosecutors who handle death penalty cases, do not have
any additional CLE requirements beyond the ten hours required of all attorneys in Virginia. It

93
94

Va. LAW ENFORCEMENT ACCREDITATION PROGRAM MANUAL ADM.02.05 8 (2010).

See Frequently Asked Questions, VA. DEP’T OF CRIMINAL JUSTICE SERVS.,
http://www.dcjs.virginia.gov/accred/fags.cfm (last visited May 16, 2013) (noting that an advantage to accreditation
is that it serves as the “best measure of an agency’s pli with p law ” but
not stating that accreditation is required).

% Accredited Agencies, VA. DEP’T OF CRIMINAL Justice SERVS.,
http://www.dcjs.virginia.gov/accred/agencies.cfm (last visited May 16, 2013).

96 MANDATORY CONTINUING LEGAL EDUCATION REGULATIONS (VA. STATE BAR) (2011), http://www.vsb.org/pro-
guidelines/index.php/mcle-regs (last visited on May 16, 2013).

For the summer of 2013, only one course of the more than 500 Virginia State Bar approved CLE courses
appeared to address bias or prejudice directly. See Course List Live and Pre-recorded Group Video programs
05/17/13—07/31/13, VA. STATE BAR, _http://www.vsb.org/docs/courses-live-051713-073113.pdf; Course List
Telephone Webcast 05/17/13—07/31/13, VA. STATE BAR, _http://www.vsb.org/docs/courses-phone-051713-
073113.pdf (course was entitled “Bias and Discrimination in the Legal Profession”).

%8 Principles of Professionalism, VA. STATE BAR COMM’N ON PROFESSIONALISM, http://www.vsb.org/pro-
guidelines/index. -php/main/print_view (last visited May 16, 2013).
Id.

100 ‘Statutory Authority and Qualifications, va. INDIGENT DEF. ComM’N,
http://www. indigentdefense.virginia.gov/serving.htm (last visited May 16, 2013).

101" See Protocol #7 for more information about defense counsel training on racial and ethnic discrimination claims.

12 Mandatory Continuing Legal Education Regulations, VA. STATE BAR, _http://www.vsb.org/pro-
guidelines/index.php/mcle-regs/ (last visited Feb. 21, 2013) (requiring that all licensed attomeys in Virginia

342

also does not appear that any recent course offerings by the Commonwealth’s Attorneys’
Services Council have addressed the impermissible use of race in the administration of justice.'”
While it is possible that some Commonwealth’s Attorneys offices may require their staff to
attend trainings on this issue, the Assessment Team was unable to obtain the necessary
information to make this determination.“

udges

Conduct of the Virginia Judiciary is govemed by the Virginia Canons of Judicial Conduct.!°
The Canons require that judges perform their “duties without bias or prejudice” and prohibit
judges from manifesting, or allowing court officials to manifest, any such “bias or prejudice
based upon race.”!° In addition, judges are responsible for prohibiting any persons appearing in
court “from manifesting, by words or conduct, bias or prejudice based upon race” except for
“legitimate advocacy” when race is an “issue[] in the proceeding.” The commentary to the
Canons specifies that, in addition to oral communication, judges’ facial expressions and body
language can give parties, lawyers, and jurors “an appearance of judicial bias,”18

Although Commonwealth judges are not required to complete any CLE hours pertaining to the
impermissible use of racial considerations in the criminal justice system, the Supreme Court
oversees a variety of mandatory and optional judicial trainings. In past years, mandatory
trainings covered topics such as “Recognizing Bias” and “Sentencing Philosophy,”!°° though
trainings on some important issues have not been offered recently due to the lack of new
judges.'!° Additionally, a special course, while not mandatory, is offered to judges who may
preside over capital cases.''! The course focuses on relevant law and addresses distinct issues
that may affect a capital case.'”” It is not clear whether this course includes training that relates
to recognizing and protecting against racial bias in death penalty proceedings.

The Commonwealth has established some sanctions for judges who are accused of misconduct.
The Judicial Inquiry and Review Commission is “vested with the power to investigate charges
which would be the basis for retirement, censure, or removal of a judge.”!8 The Commission is

complete twelve hours of inuing legal education (CLE) c ‘ik every year, including two hours on legal
ethics or professionalism).

103 Training Programs, COMMONWEALTH’S ATT'YS’ SERVS. CoUNCIL,
http://www.cas.state.va.us/traini htm (last visited May 16, 2013).

104" ‘Surveys on the prosecution of death penalty cases were submitted to the Commonwealth’s Attorney Offices of
the cities of Danville, Richmond, Roanoke, and Virginia Beach, as well as of the counties of Arlington, Chesterfield,
Henrico, Norfolk, Pittsylvania, and Prince William. Only one office retuned a completed survey to the Assessment
Team. See Analysis, Chapter Five on Prosecutorial Professionalism.

105 VA. CANONS OF JUD. CONDUCT, Preamble.

Id. at Canon 3(B)(5).

Id. at Canon 3(B)(6).

Id. at Canon 3(B)(6), Commentary.

who Vaz. Sup. Ct., Pre-Bench Orientation Curriculum (on file with the author).

11 ie

12° E-mail from Caroline Kirkpatrick, Caroline E. Kirkpatrick, Educational Services Dir., Office of the Executive
Secretary, to Sarah Turberville (Apr. 26, 2013) (on file with author).

"8" Va. Const. art. VI, § 10; VA. CODE. ANN. § 17.1-901 (2013).

106
107
108
105

343

authorized to conduct a preliminary investigation regarding any complaints of misconduct filed
against a Commonwealth judge.'* This extends to accusations that a judge has violated one of
the Canons of Judicial Conduct.'’® Any person may file a complaint, and the Commission is
authorized to conduct hearings and subpoena witnesses and documents to determine if the
complaint is “well-founded.”"”° If the Commission decides that the complaint is “well-founded,”
it may file a formal complaint with the Supreme Court, who may censure or remove the judge
from office if the court finds that the judge has “engaged in misconduct while in office” or
“engaged in conduct prejudicial to the proper administration of justice.”

Conclusion

Some actors in the Virginia criminal justice system, including law enforcement and judges,
receive mandatory education stressing that race should not be a factor in the administration of
justice. However, prosecutors and defense counsel are not necessarily educated about these
topics. Furthermore, it appears that only judges will face meaningful sanctions for acting on the
basis of racial bias or prejudice in the administration of justice. Thus, the Commonwealth of
Virginia partially complies with Protocol #6.

Recommendation

The Assessment Team recommends that law enforcement, prosecutors, defense counsel, and
judges receive mandatory instruction and training about relevant developments in the area of
racial bias. Defense counsel should receive mandatory education on how to identify and develop
claims of racial discrimination that occur during jury selection; in particular, this should be
required for capital certification of defense counsel representation at trial, appeal, state habeas,
and clemency proceedings.'!® Training and education of all actors in the criminal justice system
should also address the ways in which implicit bias may affect important decision-making in
criminal and capital cases.

Furthermore, individual law enforcement agencies should adopt the DCJS’s Model Policy on
Bias Reduction or implement their own functional equivalent.

"4 Va, Const. art. VI, § 10.

45 Tt does not appear that any judges have been sanctioned for violating Canon 3(B)(5) or 3(B)(6) specifically, but
judges have, on occasion, been investigated by the Review Commission and sanctioned by the Supreme Court for
violating other Canons and other sections of Canon 3. See, e.g., Judicial Inquiry & Rev. Comm’n of Va. v. Taylor,
685 S.E.2d 51 (Va. 2009).

48 Va. Const. art. VI, § 10; VA. CODE. ANN. § 17.1-903 (2013).

47 Va. CoNsr. art. VI, § 10; VA. CODE. ANN. § 17.1-903 (2013).

118 This issue is discussed in detail in Protocol #7, infra, notes 119-127.

344

G. Protocol #7

Defense counsel should be trained to identify and develop racial
discrimination claims in capital cases. Jurisdictions also should ensure that
defense counsel are trained to identify biased jurors during voir dire.

All attorneys appointed to represent indigent capital defendants and death row inmates, including
attomeys employed by the Regional Capital Defender (RCD) offices, the Virginia Capital
Representation Resource Center (VCRRC), as well as private counsel seeking appointment, must
meet the qualification requirements for capital defense representation established by the Virginia
Indigent Defense Commission (VIDC), the Supreme Court of Virginia, and the Virginia State
Bar.’° All attomeys seeking recertification for appointment to a death penalty case must
complete ten hours of required training every two years.” The qualification requirements,
however, do not require that capital trial, appellate, or state habeas counsel obtain training on
identifying and developing claims of racial discrimination or identifying biased jurors during
voir dire.

Individual RCD offices, however—including the Central, North, and Western RCDs—state that
their attorneys are “skill[ed] in trial advocacy, such as jury selection,” which may include skills
in identifying biased jurors during voir dire.’ Furthermore, the North and Westem RCDs state
that their attorneys receive “training on trial advocacy, including jury selection and Batson
issues,” which would cover identifying biased jurors, !23

During state habeas proceedings, most death row inmates are represented by VCRRC, a non-
profit law firm dedicated to representing Virginia’s death row inmates in post-conviction and
clemency proceedings.'*4 Although VCRRC attomeys possess the necessary post-conviction
experience under the VIDC requirements, VCRRC has not enacted any formal training standards
for its attorneys, such as requiring that counsel obtain training in the areas described in Protocol
#7.

49 Va. CODE ANN. § 19.2-163.7 (2013); Statutory Authority and Qualifications, Va. INDIGENT DEF. COMM’N,
http://www. indigentdefense.virginia.gov/serving.htm (last visited Mar. 8, 2013).
120 Id

121 Id.

12 See RCD Central Survey Response, provided by David Baugh, fmr. Capital Defender, to Paula Shapiro on
March 6, 2012, at 5 (on file with author); RCD North Survey Response, provided by Ed Ungvarsky, Capital
Defender, to Paula Shapiro on March 6, 2012, at 4 (on file with author) [hereinafter RCD North Survey Response];
RCD West Survey Response, provided by Steve Milani, Capital Defender, to Paula Shapiro on March 6, 2012, at 4
(on file with author) [hereinafter RCD West Survey Response].

"23 See RCD North Survey Response at 16; RCD West Survey Response at 17.

4 See Interview by Mark Pickett & Paula Shapiro with Robert E. Lee, Exec. Dir, Va. Capital Representation
Resource Ctr. (VCRRC), on Apr. 11, 2012 (on file with author). All but one Virginia death row inmate with a
pending state habeas, federal habeas, or clemency claim is represented by one attomey from VCRRC. The one
remaining inmate is represented by a former VCRRC attorney who continued to represent the inmate after she left
VCRRC. See also Mission VA. CAPITAL REPRESENTATION RES. CTR., http://www.vcrre.org (last visited
March 8, 2013).

25 See Va. Capital Representation Resource Ctr. (VCRRC) Survey Response, provided by Robert E. Lee, Exec.
Dir., VCRRC, to Paula Shapiro, 4 (Apr. 5, 2012) (on file with author).

345

With respect to available training for capital counsel, the VIDC-approved list of Continuing
Legal Education (CLE) programs for maintaining indigent defense certification includes one
program sponsored by VIDC entitled “Effective Voir Dire: Winning Every Jury Trial,” that may
address identifying biased jurors during voir dire or developing other racial discrimination
claims.'° The Criminal Law Section of the Virginia Bar Association also sponsors an annual,
two-day Capital Defense Workshop, although it does not appear that recent workshops in 2010,
2011, or 2012 have included specific programs on developing and identifying racial
discrimination claims or juror bias.’

Conclusion

Training on developing and identifying racial discrimination claims and juror bias is offered to
and completed by some capital counsel, but it is not required. Therefore, the Commonwealth of
Virginia is in partial compliance with Protocol #7.

Recommendation

All attorneys seeking recertification for appointment to a death penalty case should receive
mandatory training on identifying and developing claims of racial discrimination or identifying
biased jurors during voir dire. In addition, approved CLE courses that include instruction on
these topics should be offered to all indigent defense counsel.

H. Protocol #8

Jurisdictions should require jury instructions stating that it is improper for jurors
to consider any racial factors in their decision-making and that jurors should report
any evidence of racial discrimination in jury deliberations.

Instruction that racial bias or prejudice should not affect juror decision-making is particularly
important in capital cases, where defendant-specific considerations such as “future
dangerousness” play an important role.

The Virginia Model Instruction Committee promulgates many of the jury instructions used in
civil and criminal cases.'2° While the instructions are not mandatory, ”° they have been

6 See MCLE Approved Continuing Legal Educ. Programs Certified by the Va. Indigent Def. Comm'n for
Maintaining Indigent Def. Certification, VA. INDIGENT DEF. COMM’N,
http://www. indigentdefense.virginia.gov/PD F% 20documents/A pproved% 20CLE% 20for% 20C ertification% 20Feb%
2026-13%20-%202009%20Co.pdf (last visited March 8, 2013). See also VA. CODE ANN. § 19.2-163.01(A)(2), (5)
(2013).

27 See 20" Annual Capital Def. Workshop Agenda, VA. BAR ASS’N,
http://www. vba.org/associations/11069/files/2012CD WA genda.pdf (last visited March 8, 2013); 19" Annual Capital
Def. Workshop Agenda, THE VA. BAR Ass’N, http://www.vba.org/associations/11069/files/2011CDW A genda.pdf
(last visited March 8, 2013); 18" Annual Capital Def. Workshop Agenda, THE VA. BAR ASS’N,
http://vba.org/associations/11069/files/CapD ef-10% 20BF . pdf (last visited March 8, 2013).

228" ‘See Virginia Model Jury Instructions—Criminal.

“A proposed jury instruction submitted by the party, which constitutes and accurate statement of the law
applicable to the case, shall not be withheld from the jury solely for its nonconformance with the model jury
instructions.” VA. CODE. ANN. § 19.2-263.2 (2013).

129

346

favorably cited by the Supreme Court of Virginia and the Court of Appeals of Virginia in several
cases, !°° However, in none of the criminal model instructions are jurors instructed that it is
improper for them to consider race or ethnicity in their deliberations."’ In particular, the model
jury instructions for both the guilt and penalty phase of a capital murder trial do not discuss
racial bias or prejudice.!*

Conclusion
Virginia does not require that jurors be instructed that it is improper for them to consider any
racial factors when deliberating. Therefore, the Commonwealth is not in compliance with
Protocol #8.

Recommendation

Virginia should develop and deliver a model instruction to jurors that bias or prejudice should
not affect their decision-making.

I. Protocol #9

Jurisdictions should ensure that judges recuse themselves from capital cases when

any party in a given case Li ar ble basis for luding that the
judge’s decision-making could be affected by racially discriminatory factors.

Virginia Law on Judicial Recusal

The Virginia Code provides that when a trial court judge in a criminal proceeding “is so situated
in respect to the case as in his opinion to render it improper that he should preside at the trial...he
shall enter the fact of record...and another judge shall be appointed.”"“> The Virginia Canons of
Judicial Conduct state that “a judge shall disqualify himself or herself in a proceeding in which
the judge’s impartiality might reasonably be questioned, including where . . . [t]he judge has a
personal bias or prejudice concerning a party or a party’s lawyer.” While parties may waive
other grounds for disqualification, disqualification on the basis of personal prejudice or bias
conceming a party may not be waived.’ The Canons also mandate that “[a] judge shall not
hold membership in any organization that practices invidious discrimination on the basis of race,
sex, religion[,] or national origin,” because such membership “gives rise to perceptions that the
judge’s impartiality is impaired.”*°

0" See, e.g., Osman v. Osman, 737 S.E.2d 876, 882 (Va. 2013); Pryor v. Commonwealth, 661 S.E.2d 820, 821
(Va. 2008); Gaines v. Commonwealth, 575 S.E.2d 775, 777 (Va. App. 2003); Saunders v. Commonwealth, 523 S.E.
2d 509, 510 (Va. App. 2000). But see Turman v. Commonwealth, 667 S.E.2d 767, 771 (Va. 2008) (noting that the
model instructions “suffer[] from a significant defect” with respect to the instruction on flight from a crime scene as
evidence of guilt).

‘3! See Virginia Model Jury Instructions—Criminal.

‘2 Id. at Nos. G33.100, P33.120-P33.127.

SS Va. CODEANN. § 19.2-153 (2013).

VA. CANONS OF JUDICIAL CONDUCT 3(E)(1)(a) (2013).

88" Td. at 3(F).

86 Td. at 2(C).

347

The Supreme Court of Virginia has stated that “a judge must exercise reasonable discretion in
determining whether he or she possesses such bias or prejudice that would deny a litigant a fair
trial. [T]he judge must be guided not only by the true state of his impartiality, but also by the
public perception of his fairness.”’ Furthermore, it has stated that “the Canons of Judicial
Conduct are instructive, although not determinative in our review of a judge’s recusal
decision.”!** If the motion to recuse is denied by the trial judge, the Supreme Court of Virginia
will review the decision under an abuse of discretion standard.”

The Assessment Team found no instance in which the Supreme Court of Virginia addressed the
issue of judicial recusal based on racially discriminatory factors.'“°

Judicial Inquiry and Review Commission

In addition to judicial review of motions to recuse, a person who suspects a judge has failed to
disqualify him/herself in a proceeding in which impartiality reasonably might be questioned may
submit a complaint to the Judicial Inquiry and Review Commission (Commission), which will
investigate the complaint, and if necessary, take disciplinary action.'’ If the Commission finds
the charges against the judge to be well founded and of sufficient gravity to constitute the basis
for retirement, censure or removal, it will file a complaint against the judge in the Supreme Court
of Virginia“? None of the complaints filed by the Commission in the Supreme Court of
Virginia, however, have dealt with judicial recusal.'? The Commission also submits an annual
report on its activities to the Virginia General Assembly, which includes the number of inquiries

oa Wilson v. Commonwealth, 630 S.E.2d 326, 331 (Va. 2006).

i

“0 In 2004, Judge Ralph B. Robertson of the Richmond General District Court voluntarily retired “because of
remarks he made on an Internet message board that he acknowledged would be interpreted as racist.” Judge
Robertson did not preside over capital cases. Alan Cooper, Judge Quits Over Racist Talk The Longtime Jurist
Quickly Retires And Apologizes After Online Remarks About Blacks, RICH. TIMES-DISPATCH, March 5, 2004 at Al.
‘See About the Judicial Inquiry and Review Commission, VA. JUDICIAL INQUIRY & REV. COMM’N,
http://www.courts.state.va.us/agencies/jirc/about.html (last visited March 8, 2013). The Judicial Inquiry and Review
Commission was created in 2001 to investigate charges of judicial misconduct, or serious mental or physical
disability. The Commission has seven members consisting of three judges, two lawyers, and two citizens who are
not lawyers. The members are elected by the Virginia General Assembly for four-year terms.

12° Va. CODEANN. JUDICIAL INQUIRY & REV. COMM’N R. 15(A)(2) (2013).

43" See generally Judicial Inquiry & Rev. Comm’n v. Taylor, 279 Va. 699 (2009) (holding that juvenile court judge
violated judicial canons by ruling that an order was not appealable); Judicial Inquiry & Rev. Comm’n v. Shull, 274
Va. 657 (2007) (holding that judge who twice ordered litigant to lower her pants in the courtroom violated judicial
canons); Judicial Inquiry & Rev. Comm’n vy. Peatross, 269 Va. 428 (2005) (holding that judge did not violate
judicial canons for removing an attomey from a case and later communicating with Supreme Court justice regarding
resignation from Judicial Council pending JIRC charges); Judicial Inquiry & Rev. Comm’n v. Lewis, 264 Va. 401
(2002) (censuring juvenile court judge for attempting to enforce an order that had been stayed by the circuit court).

348

based on “bias or prejudice”; however the reports do not elaborate on the specific types of
complaints encompassed by that phrase.!“*

Conclusion

As the Assessment Team found no instance in which a judge failed to recuse him/herself,
Virginia appears to be in compliance with Protocol #9.

J. Protocol #10

States should permit defendants or inmates to raise directly claims of racial
discrimination in the imposition of death sentences at any stage of judicial
proceedings, notwithstanding any procedural rule that otherwise might bar such
claims, unless the State proves in a given case that a defendant or inmate has
knowingly and intelligently waived the claim.

Virginia places strict procedural limitations on the types of claims that can be considered on
direct appeal and in state habeas proceedings. The Supreme Court of Virginia will not consider
an alleged trial error on direct appeal “unless an objection was stated with reasonable certainty at
the time of the ruling [at trial], except for good cause shown or to enable [the Supreme] Court to
attain the ends of justice.”! The Court has held that “[w]hether the ends of justice provision
should be applied involves two questions: (1) whether there is error as contended by the
appellant; and (2) whether the failure to apply the ends of justice provision would result in a
grave injustice.”!“° This ends of justice exception has rarely been applied.!*”

With respect to state habeas proceedings, the Supreme Court of Virginia has held that claims of
trial error that could have been raised at trial and on direct appeal are “not cognizable in a
petition for a writ of habeas corpus.” Under this rule, no claim can be raised in state habeas
proceedings if it relates to a trial error that should have been objected to at trial.!4°

“See Report to the Va. Gen. Assembly, VA. JupiciaL INQUIRY & REV. COMM’N,

http://leg2.state.va.us/dls/h&sdocs.nsf/By+Y ear/RD622013/$file/RD62.pdf (last visited March 8, 2013) (annual

report on the activities of the Commission for the prior year including the number of complaints filed; the number of

complaints originating from attomeys, judges, court employees, or the general public; the number of complaints

dismissed based on (i) failure to fall within the jurisdiction of the Commission, (ii) failure to state a violation of the

Canons of Judicial Conduct, or (iii) failure of the Commission to reach a conclusion that the Canons were breached;

the number of c ints for which the C ission concluded that the Canons of Judicial Conduct were breached;

and the number of cases from which the staff or any member of the Commission recused himself due to an actual or
ossible conflict).

“Va. Sup. CT. R. 5:25.

M® Gheorghiu v. Commonwealth, 701 S.E.2d 407, 413 (Va. 2010) (citing Charles v. Commonwealth, 613 S.E.2d

432, 433 (Va. 2005)).

‘7 ‘For a discussion of the limited application of the ends of justice exception, see Chapter Eight on State Habeas

Corpus Proceedings, Protocol #6.

ue Teleguz v. Warden, 688 S.E.2d 865, 872 (Va. 2010) (citing Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.

1974)).

149 See Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (“A petition for a writ of habeas corpus may not be

employed as a substitute for an appeal or a writ of error.”).

349

The Supreme Court of Virginia has not recognized any exceptions to these rules based on claims
of unconstitutional racial discrimination. For example, in the case of Buck v. Commonwealth,
the defendant was sentenced to forty years for possession of cocaine with intent distribute after
the prosecution used peremptory challenges at trial to strike two of the three African Americans
from the jury panel.""° When asked to give their reasons for the strike, the prosecution stated
that one stricken juror was “relatively young when compared with the rest of the venire and did
not have children,” while the other was “wearing a college athletic jacket” and was from an area
that had “a significant drug problem.”!>! A subsequent review revealed that another juror who
was not stricken was also “relatively young” and had no children, and that the j juror stricken for
his residence was actually from a different town than the prosecution stated.’ However, the
Supreme Court would not consider whether the reasons offered were pretextual because the
defendant had failed to adequately preserve the issue at trial.!°? In another case, the Court
expressly rejected the argument that “because racial discrimination in the selection of grand
jurors is prohibited by the Fourteenth Amendment, the right to object to it at any time cannot be
waived.”

Conclusion

Because Virginia does not permit defendants or inmates to raise directly claims of racial
discrimination in the imposition of death sentences, notwithstanding procedural rules that
otherwise bar such claims, Virginia is not in compliance with Protocol #10.

Recommendation

Virginia should permit a narrow exception to its procedural default rules that would permit a
death-sentenced defendant to raise a claim of racial discrimination in the imposition of the death
penalty, notwithstanding any procedural default rules. In particular, the Supreme Court of
Virginia should reexamine the application of the “ends of justice” exception, which could
provide a means for the court to consider such claims of racial discrimination. A death sentence
imposed based on racial considerations of either the defendant or the victim constitutes the sort
of “grave injustice” contemplated by this exception.

‘8° Buck v. Commonwealth, 443 S.E.2d 414, 415 (Va. 1994).
Id.

132 See id. (Noting that “[nJothing in [the defendant’s] statement informed the trial court that [he] believed that the
reasons advanced were pretextual.”).

153. See id.

‘Prieto v. Commonwealth, 721 S.E.2d 484, 504 (Va. 2012).

350

CHAPTER THIRTEEN
MENTAL RETARDATION AND MENTAL ILLNESS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
Mental Retardation’

In Atkins v. Virginia,’ the U.S. Supreme Court held that the application of the death penalty to
persons with mental retardation violates the Eighth Amendment’s prohibition on cruel and
unusual punishment. However, Atkins did not define the parameters of mental retardation, nor
did the decision explain what process capital jurisdictions should employ to determine if a capital
defendant or death row inmate has mental retardation. Without a sound definition and clear
procedures, the execution of persons with mental retardation could occur.

In an effort to assist capital jurisdictions in determining who meets the criteria of mental
retardation, the ABA adopted a resolution opposing the execution or sentencing to death of any
person who, at the time of the offense, “had significant limitation in both their intellectual
functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive
skills, resulting from mental retardation, dementia, or traumatic brain injury.”> The ABA policy
reflects language adopted by the American Association on Intellectual and Developmental
Disabilities and the American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders.’

Some states, however, do not define mental retardation in accordance with these commonly
accepted definitions. Moreover, some states impose upper limits on the intelligence quotient

| While “intellectual disability” is the preferred term to describe the same condition known as mental retardation,

the ABA Assessment Reports will continue to use the term mental dation for reader ion. “Mental
retardation” is the term used in death penalty jurisprudence in such definitive decisions as Atkins v. Virginia, 536
U.S. 304 (2002), as well as in current Virginia statutory and case law. Furthermore, ABA policy refers explicitly to
mental dation in its long-standing ition to the ion of people with this condition, and use of the term
mental retardation maintains consistency with previous reports authored by the ABA and its jurisdictional
assessment teams on the death penalty. See also FAQ on Intellectual Disability, AM. ASS’N ON INTELLECTUAL &
DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_104.cfm (last visited June 27, 2012).

2 Atkins, 536 U.S. 304.

ABA, RECOMMENDATION 122A, 2006 Ann. Mtg, 4 (adopted Aug. 7-8, 2006), available at
http://www.americanbar.org/content/dam/aba/directories/policy/2006_am_122a.authcheckdam.pdf. See AM. Ass’N
ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, & SYS. OF SuPPORTS 13 (10th
ed. 2002); AM. PSYCHIATRIC ASS’N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 49 (text rev. 4th
ed. 2000) [hereinafter DSM]. The American Association on Mental Retardation (AAMR) later changed its name to
the American A iation on I] il and Devel: i Disabilities (AAIDD). About Us, AM. Ass’N ON
INTELLECTUAL & DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_2383.cfm?navID=2 (last visited
Sept. 14, 2012).

For example, the AAIDD defines mental retardation as “a disability characterized by significant limitations both
in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of
everyday social and practical skills[, and which] originates before the age of 18.” FAQ on Intellectual Disability,
supra note 1. The DSM defines a person as mentally retarded if, before the age of eighteen, s/he exhibits
“signi ly subaverage intell 1 functioning and concurrent deficits or impairments in present adaptive
functioning.” DSM, supra note 3, at 39.

351

score necessary to prove mental retardation that are lower than the range that is commonly
accepted in the field (approximately seventy to seventy-five or below). In addition, lack of
sufficient knowledge and resources often precludes defense counsel from properly raising and
litigating claims of mental retardation. In some jurisdictions, the burden of proving mental
retardation is not only placed on the defendant, but also requires proof greater than a
preponderance of the evidence. Accordingly, considerable additional work is required to make
the intent of the Atkins holding a reality.

The ABA resolution also encompasses dementia and traumatic brain injury, disabilities
functionally equivalent to mental retardation but which typically manifest after age eighteen.
While these disabilities are not expressly covered in Atkins, the ABA opposes the application of
the death penalty to any person who suffered from significant limitations in intellectual
functioning and adaptive behavior at the time of the offense, regardless of the cause of the
disability.

Mental Illness

In Atkins, the Court held that mentally retarded offenders are less culpable than other offenders
because of their “diminished capacities to understand and process information, to communicate,
to abstract from mistakes and learn from experience, to engage in logical reasoning, to control
impulses, and to understand the reactions of others.”” This same reasoning must logically extend
to persons suffering from a severe mental disability or disorder that significantly impairs their
cognitive or volitional functioning at the time of the capital offense.

In 2006, the ABA adopted a policy opposing imposition of the death penalty on persons who, at
the time of the offense, suffered from a severe mental disability or disorder that affected (1) their
capacity to appreciate the nature, consequences or wrongfulness of their conduct; (2) their ability
to exercise rational judgment in relation to their conduct; or (3) their capacity to conform their
conduct to the requirements of the law.°

Mental Illness after Sentencing

Concerns about a prisoner’s mental competence and suitability for execution also arise long after
the prisoner has been sentenced to death. Almost 13% of all prisoners executed in the modem
death penalty era have been “volunteers,” or prisoners who elected to forgo all available
appeals.’ When a prisoner seeks to forgo or terminate post-conviction proceedings, jurisdictions
should implement procedures that will ensure that the prisoner fully understands the
consequences of that decision, and that the prisoner’s decision is not the product of his/her

mental illness or disability.

Given the irreparable consequences that flow from a death row inmate’s decision to waive
his/her appeals, the ABA also opposes execution of prisoners whose mental disorders or
disabilities significantly impair their capacity (1) to make rational decisions with regard to post-

Atkins, 536 U.S. at 318.
ABA, supra note 3.
John Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Micu. L. REV. 939, 959 (2005).

352

conviction proceedings; (2) to assist counsel in those proceedings; or (3) when facing an
impending execution, to appreciate the nature and purpose of the punishment or reason for its
imposition.

Regardless of a state’s law on the application of the death penalty to offenders with mental
retardation or mental illness, these disabilities and disorders can affect every stage of a capital
trial. Evidence of mental illness is relevant to the defendant’s competence to stand trial, it may
provide a defense to the murder charge, and it can be the centerpiece of the mitigation case.
Conversely, when the judge, prosecutor, defense attorney, or jury is uninformed about the nature
of mental illness and its relevance to the defendant’s culpability and life experience, tragic
consequences often follow for the defendant.

Unfortunately, jurors often treat mental illness as an aggravating factor rather than a mitigating
factor in capital cases. States, in tum, have failed to provide jurors with a clear vehicle for
considering mental illness as a mitigating factor. For example, a state’s capital sentencing statute
may provide a list of mitigating factors that implicate mental illness, such as whether the
defendant was under “extreme mental or emotional disturbance” or whether the defendant had
the capacity to “appreciate the criminality (wrongfulness) of his conduct” at the time of the
offense. However, these factors are read to jurors without further explanation or without any
discussion of their relationship to mental illness.® One study specifically found that jurors’
consideration of “extreme mental or emotional disturbance” in capital cases correlated positively
with decisions to impose death sentences.°

Mental illness particularly weighs against a capital defendant when it is considered in the context
of determining “future dangerousness,” a criterion for imposing the death penalty in some
jurisdictions. One study showed that a judge’s instructions on future dangerousness led mock
jurors to believe that the death penalty was mandatory for mentally ill defendants. This
perception unquestionably affects decisions in capital cases. In addition, the medication some
mentally ill defendants receive during trial often causes them to appear detached and
unremorseful. This, too, can lead jurors to impose a sentence of death.

8 State death penalty statutes based upon the Model Penal Code list three mitigating factors that implicate mental

illness: (1) whether the defendant was under “extreme mental or emotional disturbance” at the time of the offense;
(2) whether “the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform
his conduct to the requirements of law was impaired as a result of fieniel disease or defect or intoxication;” and (3)
whether “the murder was under which fendant believed to provide a moral
justification or extenuation of his conduct.” MODEL PENAL CODE § att 6(1) (f) 960), In 2009, the American Law
Institute formally withdrew all Model Penal Code provisions related to the imposition of capital punishment. Adam
Liptak, Group Gives Up Death Penalty Work, N.Y. Times, Jan. 5, 2010, at A11

David Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and
Legal Overview, with Recent Findings from Philadelphia, 83 CORNELL L. REV. 1638, 1688-89 (1998) (noting, in
Table 6, that submission of a defendant’s “extreme emotional disturbance” as a mitigating circumstance increased
the likelihood of a death sentence in capital cases in Philadelphia from 1983 to 1993).

353

I, FACTUAL DISCUSSION: VIRGINIA OVERVIEW
A. Mental Retardation in Death Penalty Cases

In 2002, the U.S. Supreme Court held, in Atkins v. Virginia, that executing persons with mental
retardation violates the Eighth Amendment’s prohibition on cruel and unusual punishment.!°
The Court, however, allowed individual states to determine the procedure for deciding whether
an offender is a person with mental retardation.!

Shortly after the Atkins decision, the Virginia General Assembly enacted legislation prohibiting
the application of the death penalty to those with mental retardation.'? Virginia law defines
mental retardation as

a disability, originating before the age of 18 years, characterized concurrently by
(i) significantly subaverage intellectual functioning as demonstrated by
performance on a standardized measure of intellectual functioning administered in
conformity with accepted professional practice, that is at least two standard
deviations below the mean and (ii) significant limitations in adaptive behavior as
expressed in conceptual, social and practical adaptive skills. '°

1. Determinations of Mental Retardation at Trial

A capital defendant must provide notice to the prosecution of his/her intent to raise mental
retardation as a bar to the death penalty at least twenty-one days before trial.'* If the defendant
fails to provide proper notice, “then the court may, in its discretion, upon objection of the
[prosecution], either allow the [prosecution] a continuance or, under appropriate circumstances,
bar the defendant from presenting such evidence.”!°

Following a motion by the defendant and a finding by the trial court that the defendant is
financially unable to pay for expert assistance, “the court shall appoint one or more qualified
mental health experts to assess whether or not the defendant is mentally retarded and to assist the
defense in the preparation and presentation of information concerning the defendant’s mental
retardation.”!° The expert, who is appointed by the court, must be

(1) A psychiatrist, a clinical psychologist or an individual with a doctorate degree in
clinical psychology;

(2) Skilled in the administration, scoring and interpretation of intelligence tests and
measures of adaptive behavior; and

10 Atkins v. Virginia, 536 U.S. 304, 321 (2002).
See id.

2 Va. CODE ANN. § 18.2-10(a) (2013).

'S Va. CODE ANN. § 19.2-264.3:1.1(A) (2013).
. VA. CODE ANN. § 19.2-264.3:1.2(E) (2013).
5 Id.

‘6 Va. CODE ANN. § 19.2-264.3:1.2(A) (2013).

354

(3) Qualified by experience and by specialized training, approved by the
Commissioner of Behavioral Health and Developmental Services, to perform
forensic evaluations.’

Under the Virginia rules, “(t]he defendant shall not be entitled to a mental health expert of the
defendant’s own choosing or to funds to employ such expert.”'® The court must appoint a
similarly-qualified expert to assist the prosecution at the prosecution’s request. a

Whether a defendant is mentally retarded “shall be determined by the jury as part of the
sentencing proceeding” of the capital trial.?” Similarly, if the trial is before a judge, the judge
will determine whether the defendant is mentally retarded as part of the sentencing proceeding. *
There is no provision that allows mental retardation to be determined in a pretrial hearing. The
defendant Sbearl s] the burden of proving that he is mentally retarded by a preponderance of the
evidence.”

2. Determinations of Mental Retardation in Appellate and State Habeas Proceedings

Only a limited number of persons sentenced to death in Virginia have been permitted by law to
present claims of mental retardation in state appellate and habeas proceedings. Specifically, any
death row inmate whose direct appeal or state habeas petition was pending as of April 29, 2003,
the date of enactment of the Commonwealth’s statute excluding those with mental retardation
from the death penalty, was permitted to present his/her claim of mental retardation to the
Supreme Court of Virginia in his/her direct appeal brief or habeas petition, respectively.”* If the
Supreme Court determined that the mental retardation claim was “not frivolous,” it was required
to remand the case to the trial court.”* If the case was before the Supreme C ourt on direct appeal,
the trial court was required to empanel a new jury to determine the issue of mental retardation.”
If the claim was remanded in state habeas proceedings, the trial court made the determination in
a hearing.”” Otherwise, the trial-level procedure for determining mental retardation governed
these proceedings.””

The statute provides, however, that if the defendant had “completed both a direct appeal and a
habeas corpus proceeding” as of April 29, 2003, s/he was not entitled to have his/her mental

retardation claim considered and the person’s “sole remedy shall lie in federal court.””°

7 Id.
eg.
"VA. CODE ANN. § 19.2-264.3:1.2(F)(1) (2013).

a Va. CODE ANN. § 19.2-264.3:1.1(C) (2013).
Id

2 Td.
3 Va. CODEANN. § 8.01-654.2 (2013).
Id.

355

B. Mental Illness and Disability as Mitigating Evidence

The U.S. Supreme Court has held that the trier of fact in the sentencing phase of a capital trial
must be permitted to consider “as a mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.”* Accordingly, Virginia law permits a capital defendant to present
evidence related to his/her “history, character, or mental condition” during the sentencing phase
of the trial.°°

Virginia law also enumerates six statutory mitigating factors, three of which relate to the
defendant’s mental state or mental capacity: (1) “the capital felony was committed while the
defendant was under the influence of extreme mental or emotional disturbance”; (2) “at the time
of the commission of the capital felony, the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was significantly
impaired”; and (3) “even if [Virginia’s mental retardation statute] is inapplicable as a bar to the
death penalty, the subaverage intellectual functioning of the defendant.” However, Virginia
trial courts are not required to instruct the jury on these individual factors, regardless of whether
the defendant proffers evidence to support them.”

A Virginia statute, nearly identical to the statute that permits the appointment of mental
retardation experts, requires the appointment of mental health experts to determine

(i) whether the defendant acted under extreme mental or emotional disturbance at
the time of the offense; (ii) whether the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of the
law was significantly impaired at the time of the offense; and (iii) whether there
are any other factors in mitigation relating to the history or character of the
defendant or the defendant’s mental condition at the time of the offense.

C. Mental Illness and Disability as Evidence of the Defendant's Continuing Serious Threat
to Society

If an expert is appointed to assist a capital defendant in evaluating the defendant’s mental
condition, the prosecution is entitled to have an expert appointed to determine “the existence or
absence of mitigating circumstances relating to the defendant’s mental condition at the time of
the offense.”** However, once appointed, this expert’s evaluation and subsequent testimony is
not limited to the presence of mitigating evidence.” The expert may also testify regarding the
defendant’s continuing serious threat to society.*° The question of whether the defendant is a

Lockett v. Ohio, 438 U.S. 586, 604 (1978).
8° Va. CODEANN. § 19.2-264.3:1(A) (2013), See also VA. CODE ANN. § 19.2-264.4(B) (2013).
3! Va. CopE ANN. § 19.2-264.4(B) (2013).
32 Buchanan v. Angelone, 103 F.3d 344, 347-48 (4th Cir. 1996).
33 Va. CODE ANN. § 19.2-264.3:1(A) (2013).
4 Va. CODEANN. § 19.2-264.3:1(F)(1) (2013).
. Stewart v. Commonwealth, 427 S.E.2d 394, 407-08 (Va. 1993).
Id.

356

continuing serious threat to society is one of Virginia’s two statutory aggravating factors, one of
which must be found by the jury in order to sentence the defendant to death.”

D. Competency

1. Competency to Stand Trial

In Dusky v. United States, the U.S. Supreme Court held that a defendant is mentally incompetent
and thus cannot be tried for a criminal offense if s/he lacks “sufficient present ability to consult
with [counsel] with a reasonable degree of rational understanding,” or does not have “a rational
as well as factual understanding of the proceedings.”** In accordance with this decision, Virginia
statutory law provides that if, at any time before trial,

the court finds, upon hearing evidence or representations of counsel for the
defendant or the attorney for the Commonwealth, that there is probable cause to
believe that the defendant . . . lacks substantial capacity to understand the
proceedings against him or to assist his attorney in his own defense, the court
shall order that a competency evaluation be performed by at least one psychiatrist
or clinical Psychologist who is qualified by training and experience in forensic
evaluation.”

The expert appointed to perform the evaluation is required to submit a report on the defendant’s
competency to the court.”” After receiving the report, the court must “promptly” determine
whether the defendant is competent.*! An evidentiary hearing on the issue “is not required
unless one is requested by the attomey for the Commonwealth or the attorney for the defendant,
or unless the court has reasonable cause to believe the defendant will [require inpatient
hospitalization to restore his/her competency.]”” If a hearing is held, the party alleging the
defendant is incompetent bears the burden of proving the incompetency by a preponderance of
the evidence.*®

A defendant who is found incompetent must be ordered to “receive treatment to restore []
competency on an outpatient basis or, if the court specifically finds that the defendant requires
inpatient hospital treatment, at a hospital designated by the Commissioner of Behavioral Health
and Developmental Services.”“* If the facility treating the defendant’s incompetency believes

57 Va. CoDE ANN. § 19.2-264.4(C) (2013). This aggravating factor requires the jury to find, beyond a reasonable

doubt, that “there is a probability based upon evidence of the prior history of the defendant or of the circumstances
surrounding the commission of the offense of which he is accused that he would commit criminal acts of violence
that would constitute a continuing serious threat to society.” Id.
Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam).
%® Va. CODE ANN. § 19.2-169.1(A) (2013).
40 Va. CODE ANN. § 19.2-169.1(D) (2013).
° Va. CODE ANN. § 19.2-169.1(E) (2013).
8 id
4 Va. CODE ANN. § 19.2-169.2(A) (2013).

357

his/her competency has been restored, it must send a report to the court, and the court must again
rule on the defendant’s competency as previously described.”

Virginia’s competency statutes also include provisions for dismissing charges against a
defendant who is “unrestorably incompetent.”“° However, Virginia law provides that when a
defendant is charged with capital murder “the charge shall not be dismissed and the court having
jurisdiction over the capital murder case may order that the defendant receive continued
treatment. . . without limitation.”””

2. Other Competency Issues

Virginia courts will also consider a defendant’s mental illness or mental disability as a factor in
determining whether s/he is competent to waive other rights, including Miranda rights, the right
to trial, and the right to direct appeal.”®

E. Mental Conditions Affecting Criminal Liability

1. Not Guilty by Reason of Insanity

Virginia courts have held that a defendant is not guilty by reason of insanity if the defendant can
prove to the jury (1) that at the time of the offense, the defendant “was labouring under such a
defect of reason, from disease of the mind, as not to know the nature and quality of the act he
was doing; or, if he did know it, that he did not know he was doing what was wrong”; or (2) that
the defendant’s “mind has become so impaired by disease that he is totally deprived of the
mental power to control or restrain his act.”*?

If a defendant intends to introduce evidence of insanity at trial s/he must “give notice in writing
to the attorney for the Commonwealth, at least 60 days prior to his trial.”®° If proper notice is not
given, “then the court may in its discretion, either allow the Commonwealth a continuance or,
under appropriate circumstances, bar the defendant from presenting such evidence.”*!

2. Diminished Capacity

Some states permit a defendant to present evidence of mental illness or mental disability to prove
that s/he was incapable of specific intent or premeditation.*” If such a defense is successful, a

‘5 Va. CODE ANN. § 19.2-169.2(B) (2013).

46 Va. CODE ANN. § 19.2-169.3 (2013).

“Va. CopE ANN. § 19.2-169.3(F) (2013).

For further discussion on the manner in which these competency determinations are made, see Mental
Retardation and Mental Illness Protocols #3 and #4, infra notes 104-116, and Protocols #7 and #8, infra notes 176.
198, and accompanying text.

a Morgan v. Commonwealth, 646 S.E.2d 899, 902 (Va. Ct. App. 2007). These standards are known as the
M’Naghten Rule and the irresistible impulse test, respectively. Id.

50 Va. CODE ANN. § 19.2-168 (2013). “However, if the period between indictment and trial is less than 120 days,
the [defendant] shall give such notice no later than 60 days following indictment.” Id.

” Id

2 See, e.g., State v. Walkup, 220 S.W.3d 748, 750-51 (Mo. 2007) (en banc).

358

capital murder defendant will be convicted of a lesser offense that does not require proof of
premeditation, such as second-degree murder.” Virginia courts, however, do not allow evidence
of mental illness or mental disability to be used for this purpose.

5 See id.
i Stamper v. Commonwealth, 324 S.E.2d 682, 688 (Va. 1985).

359

II. ANALY SIS: MENTAL RETARDATION AND MENTAL ILLNESS

Below are the ABA Benchmarks, or “Protocols,” used by the Assessment Team in its evaluation
of Virginia’s death penalty system. Each Protocol is followed by the Assessment Team's
analysis of the Commonwealth’s compliance with the Protocol and, where appropriate, the
Assessment Team’s rec dations for reform.

While “intellectual disability” is the preferred term to describe the same condition formerly
known as mental retardation, the ABA Assessment Reports use the term “mental retardation” for
improved readability .°° Mental retardation, for example, is the term used by the wu. S. Supreme
Court in Atkins v. Virginia,°® as well as in current Virginia statutory and case law.°”

A. Protocol #1

All actors in the criminal justice system, including police, court officers, defense
attorneys, prosecutors, judges, jailers, and prison authorities, should be trained to

recog mental ion in capital d and death row inmates.

B. Protocol #2

All actors in the criminal justice system, including police officers, court officers,
prosecutors, defense attorneys, judges, jailers, and prison authorities, should be
trained to recognize mental illness in capital defendants and death row inmates.

Mental retardation and mental illness can have a profound impact on a capital case. The
defendant’s mental state may affect his/her eligibility for the death penalty, presentation of
mitigating evidence, and competency to stand trial. Furthermore, as discussed in more detail in
Protocols #3 and # below, defendants with mental retardation or mental illness are much more
likely to falsely confess to a crime.*® For these reasons, all actors in the Virginia criminal justice
system should be trained to recognize and appropriately address the limitations of persons with
mental retardation or mental illness.

Law Enforcement Officer Training”?

The Virginia Department of Criminal Justice Services (DCJS) is empowered to “[e]stablish
compulsory minimum training standards” for Virginia law enforcement officers. DCIJS’s
training standards require officers to be trained to identify “specific audiences that may require
an officer to adjust [his/her] manner of communication” including “persons with mental

See FAQ on Intellectual Disability, AM. Ass’N ON INTELLECTUAL & DEVELOPMENTAL DISABILITIES,
http://www. aaidd.org/content_104.cfm (last visited June 27, 2012).

Atkins v. Virginia, 536 U.S. 304 (2002).

ABA policy refers explicitly to mental retardation in its long-standing opposition to the execution of people
with this condition, and use of the term mental retardation maintains consistency with previous reports authored by
the ABA and its jurisdictional assessment teams on the death penalty.

58 See infra notes 80-103 and accompanying text.

5° For further discussion on law enforcement training in Virginia, see Chapter Two on Law Enforcement
Identifications and Interrogations.

50 Va. CODE ANN. § 9.1-102(2) (2013). See also 6 VA. ADMIN. CoDE § 20-20-20 (2013).

360

retardation.”°! Officers are further trained to “Tijdentify behaviors that may indicate possible

mental illness or other maladaptive and/or dangerous speech or actions that require law
enforcement intervention.”

In addition, some of the individual law enforcement agencies the Assessment Team surveyed
reported some training related to recognizing mental retardation.® The Virginia State Police has
adopted a plan for training officers to “recogniz[e] and efficiently manag[e] interactions with
individuals having a mental illness.” The plan includes guidelines for recognizing mental
retardation. The Danville Police Department has implemented a general order related to
“handling the mentally ill,” but the order does not specifically mention persons with mental
retardation. The Norfolk Police Department indicated that it has implemented a similar order. °”

Defense Counsel Training™

Defense counsel training on issues related to mental retardation is discussed in Mental
Retardation Protocol #3.

Prosecutor Training”?

Virginia law does not require Virginia prosecutors to receive any specialized training beyond the
continuing legal education courses that all Virginia attorneys must complete. The Virginia
General Assembly has established the Commonwealth’s Attorneys’ Services Council (CASC)
“to ensure the upgrading of criminal justice administration by providing and coordinating
training, education and services for attorneys for the Commonwealth.”” While CASC offers
some training programs related to mental retardation and other mental health issues, these
programs are limited to training on methods for opposing mental health claims by the
defendant.” For instance, a training on mental retardation would address strategies for
successfully opposing a capital defendant’s mental retardation claim, rather than how to
recognize mental retardation in a defendant.”

61 Va. DEP’T OF CRIMINAL JUSTICE SERVS., PERFORMANCE OUTCOMES, TRAINING OBJECTIVES, CRITERIA AND

LESSON PLAN GUIDES FOR COMPULSORY MINIMUM TRAINING STANDARDS FOR LAW ENFORCEMENT OFFICERS, 3-23
(1997), available at http://www.dcjs. virginia.gc dardsTraining/d ‘performanceOutcomes/

entireM anual.pdf.

® Id. at 4-23.

83 For a complete list of the Virginia law agencies that ded to the A Team’s survey,
see Chapter Two on Law Enforcement Identifications and Interrogations.

® Va. Dep’t of State Police Survey Response, provided by Capt. Lenmuel S. Terry, Training Dir., to Mark Pickett,
6 (Feb. 13, 2012) (Attachment #11 and on file with author).

° Id.

6 Crry oF DANVILLE POLICE DEp’T, GENERAL ORDER OPR.117 (1998) (on file with author).

City of Norfolk Police Dep’t Survey Response, provided by Capt. Ed Ryan, to Mark Pickett, 5 (Feb. 14, 2012)
(on file with author).
®8 For further discussion on the training of defense counsel, see Chapter Six on Defense Services.
8° For further discussion on the training of prosecutors, see Chapter Five on Prosecutorial Professionalism.
70 Va. CODE ANN. § 2.2-2617(A) (2013).

Telephone Interview by Mark Pickett with Robert Q. Harris, Dir., Commonwealth’s Att’ys Servs. Council (June
8, 2012) (on file with author).

Id.

361

While it is possible that some Virginia prosecutors have attended other training programs
relevant to recognizing mental retardation, the Assessment Team could not determine the extent
to which such trainings are attended.”°

u Trainin

The Educational Services Department of the Office of the Executive Secretary of the Supreme
Court of Virginia is responsible for organizing “yearly continuing education opportunities and
training for all Virginia court system employees,” including judges. ™ The Department does not,
however, offer any judicial training programs relevant to recognizing mental retardation or
mental illness.”°

Prison Authority Training

As with law enforcement officers, training for Virginia correctional officers is regulated by
DCJS.” DCJS minimum training standards require correctional officers to receive training on
the identification of “mentally disturbed inmates.””” Officers are trained to recognize mental
illnesses and mental disabilities, including mental retardation, and report what they observe to
on-staff mental health professionals.”® Additional training is required for officers assigned to
mental health units.”°

Conclusion

Some actors in the Virginia criminal justice system, including law enforcement and corrections
officers, receive training relevant to recognizing mental retardation and mental illness in capital
defendants and death row inmates. However, Virginia judges, including circuit judges who hear
capital cases, do not receive any training on recognizing mental retardation or other disabilities.
Additionally, Virginia prosecutor training appears to be limited to litigation strategies on mental
retardation issues. Accordingly, Virginia is in partial compliance with Protocols #1 and #2.

Recommendation
The Assessment Team recommends that Virginia require all relevant actors in the criminal

justice system to be educated on issues related to mental retardation and mental illness. Circuit
judge education, most importantly, should include programs related to recognizing and

73 See Letter from David N. Grimes, President, Va. Ass’n of Commonwealth’s Att’ys, to John Douglass, Chair,

Va. Assessment Team on the Death Penalty (Apr. 23, 2012), infra Appendix (declining to respond to a survey
submitted by the Assessment Team to several elected Commonwealth’s Attorneys in Virginia).

Education Services, Va.’s JUDICIAL Sys., http://www.courts.state.va.us/courtadmin/aoc/ed/home.html (last
visited June 11, 2012).
75 Telephone Interview by Mark Pickett with Caroline Kirkpatrick, Dir., Educ. Servs. Dep’t of the Office of the
Exec. Sec’y of the Supreme Court of Va. (June 6, 2012) (on file with author).
, 6 Va. ADMIN. CobE § 20-100-20 (2013),

Id.

Telephone Interview by Mark Pickett with David Rogers, Assistant Training Manager, Va. Dep’t of Corr. Acad.
for Staff Dev. (May 21, 2012).

Id.

362

understanding the effects of mental retardation and other mental disabilities. Virginia’s trial
judges may be called upon to assess the admissibility of evidence in mental retardation claims,
determine a defendant’s capacity to stand trial, and rule on other issues related to mental health.
As such, a trial judge’s understanding of mental retardation and other mental health issues is
critically important to the functioning of Virginia’s criminal justice system. In addition,
prosecutors should receive training on recognizing mental retardation and mental illness in
defendants, witnesses, and other persons. While training on strategies for opposing mental
retardation claims may be important, prosecutors also must be able to assess how a defendant’s
intellectual capacity and mental condition might affect his/her eligibility for the death penalty, as
well as other aspects of the case.

C. Protocol #3
During police investigations and interrogations, special steps should be taken to
ensure that the Miranda rights of a mentally retarded person are sufficiently
protected and that false, coerced, or garbled confessions are not obtained or used.
Protocol #4

During police investigations and interrogations, special steps should be taken to
ensure that the fa rights of a tally ill person are suffi h d and
that false, coerced, or garbled confessions are not obtained or used.

Mental Retardation
The Risk of False or Coerced Confessions

The U.S. Supreme Court has observed that “[m]entally retarded defendants . . . face a special risk
of wrongful execution” because of the possibility that they will confess to crimes they did not
commit.” Social scientific research on the topic confirms this observation. One study, for
instance, found that 50% of mildly mentally retarded study participants “could not correctly
paraphrase any of the five Miranda components,” compared to less than 1% of the general
population.” Moreover, because mentally retarded persons are more likely to “change accounts
in response to suggestive questioning” and “possess less confidence in their own memories and
beliefs,” these individuals are more likely to falsely confess to a crime.”

False confessions are a common cause of wrongful convictions in the United States. According
to the Innocence Project, in approximately 25% of DNA exoneration cases (both capital and non-
capital), “innocent defendants made incriminating statements, delivered outright confessions or
pled guilty.”®

80 Atkins v. Virginia, 536 U.S. 304, 321 (2002).
®! Saul M. Kasin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum.
BEHAV. 3, 21 (2010) (emphasis in original) (citing Michael J. O'Connell et al., Miranda Comprehension in Adults
with Mental Retardation and the Effects of Feedback Style on Suggestibility, 29 LAW & HUM. BEHAV. 359 (2005).
® William C. Follette, Deborah Davis & Richard A. Leo, Mental Health Status and Vulnerability to Police
Interrogation Tactics, 22 CRIM. Just. 42, 48-49 (2007).

False Confessions, INNOCENCE PROJECT, http://www.innocenceproject. False-C.
(last visited Jan. 2, 2012).

fe php

363

In Virginia, the case of Earl Washington demonstrates the increased risk that a mentally retarded
person will falsely confess to a crime. Washington, who is mildly mentally retarded," was
interrogated by police for two days regarding the 1982 rape and murder of Rebecca Lynn
Williams and other unrelated offenses.*° Washington eventually confessed to the rape and
murder, although several of the details he provided to police were inconsistent with the facts.°°
For instance, he told police that he had stabbed Williams two or three times, when in fact she had
thirty-eight stab wounds.®’ Based largely on this confession, Washington was convicted and
sentenced to death.®* In 1993, however, DNA testing proved that Washington was innocent of
the offense, and Govemor Douglas Wilder commuted his sentence to life in prison." Following
additional DNA testing, Governor James Gilmore granted Washington a full pardon and he was
released in 2000 after serving seventeen years in prison for a crime he did not commit.°
Governor Tim Kaine formally declared Washington’s “actual innocence” in 2007." After his
release, Washington was awarded $2.25 million by a jury in a federal civil rights lawsuit related
to his wrongful conviction; upon further negotiations with the Commonwealth, Washington
received a $1.9 million settlement.”

While Washington was on death row for a murder he did not commit, the actual perpetrator
remained at large and free to commit more violent crimes. The DNA testing that exonerated
Washington also implicated another man, Kenneth Maurice Tinsley, in Rebecca Williams’
murder.*? In 2007, Tinsley pleaded guilty to Williams’ rape and murder and was sentenced to
life in prison. Tinsley, however, was already serving two life sentences for a rape he
committed in 1984, two years after he murdered Williams.~’ Had Tinsley been apprehended and
convicted instead of Washington, the 1984 rape would not have occurred.

Persons with mental retardation or other mental impairments have falsely confessed in non-
capital cases in Virginia as well. In 1997, Ricky Cullipher was convicted of shooting his friend
Danny Caldwell in the head and seriously injuring him. Cullipher, who suffered from a
learning disability, had confessed to the crime.°’ A subsequent newspaper investigation,
however, revealed numerous problems with the case, including the fact that “Caldwell was []
recorded on a grainy videotape laughing with a friend about how he had actually shot himself

a Washington v. Buraker, 322 F. Supp. 2d 702, 713 (W.D. Va. 2004).
® Earl Washington, INNOCENCE PROJECT, http://www.innocenceproject.org/C ontent/Earl_Washington.php (last
visited May 22, 2012).
© Id.
7 Id.
88 Washington, 322 F. Supp. 2d at 707.
Id.

90 CF

See id.
$1 Maria Gold, Former Death-Row Inmate Officially Declared Innocent, WAsH. Post, Jul, 7, 2007.
Email from Steve D. Rosenfield, Att’y for Earl Washington, to Joseph Flood (Jan. 31, 2013) (on file with
author).
°8 Frank Green, Tinsley Pleads Guilty in ‘82 Death: Two Life Terms Imposed in the Attack for which Earl
Washington Was Exonerated, RICHMOND TiMES-DispATcu, Apr. 12, 2007, at B1.

Id

8 ig.

% Holly Roberson & Kimberly Lenz, Ricky Free: Judge Says Cullipher Deserves New Trial; Prosecutor Drops
Case, Daly Press (Newport News, Va.), May 25, 2001, at Al.
"Id.

364

while playing Russian roulette.”®® In 2001, Cullipher’s conviction was overturned by a federal
judge who found several errors in the case, and prosecutors subsequently dismissed the case. °°
Cullipher had explained that “he told the officers what he thought they wanted to hear so they
would leave him alone.”!”

In another Virginia case, David Vasquez pleaded guilty to the rape and murder of a woman in
1984.'°! Vasquez, who had an IQ below seventy, confessed to the crime after police falsely told
him that his fingerprints were found at the scene of the crime.!” After spending nearly four
years in prison, however, DNA testing implicated another man in the crime, and Vasquez was
pardoned by the Governor. !°3

Protection from Miranda Waivers

In Miranda v. Arizona, the U.S. Supreme Court held that the Fifth Amendment’s protection from
self-incrimination requires law enforcement officers to inform a sus pect of his/her right to
remain silent and right to an attorney prior to a custodial interrogation." A suspect, however,
may waive his/her Miranda rights if the waiver is knowingly and intelligently made.'° The
Supreme Court of Virginia has held that the test for the validity of a Miranda waiver is “whether
the statement is the product of an essentially free and unconstrained choice by its maker, or
whether the maker’s will has been overborne and his capacity for self-determination critically
impaired.”!°° In making this determination, the court will “examine the totality of the
circumstances, which include the defendant’s background and experience as well as the conduct
of the police in obtaining the waiver of Miranda rights and confession.”

While the court will consider evidence of mental retardation or mental illness as part of this
determination, such a defendant may still waive his/her Miranda rights and is not entitled to any
additional protections to ensure that his/her Miranda waiver is valid." In the Earl Washington
case, for instance, the Supreme Court of Virginia held that Washington’s Miranda waiver was
valid despite his mental retardation because he was familiar with the criminal justice system and

98

0 Peter Dujardin, A Prosecutor Reflects, DAILY PRESS (Newport News, Va.), Feb. 5, 2012, at Al.

Roberson & Lenz, supra note 96.

Id.

101 Donald P. Baker & Dana Priest, Va. Senate Allows Compensation for Innocent Man, Wasu. Post, Feb. 14,
1990, at F5.

12 Id.; Jim Mason, Vasquez Was ‘Brainwashed’ into Guilty Plea, Mother Says, RICHMOND TIMES-DISPATCH, Jan.
6, 1989, at 5.

103 Baker & Priest, supra note 101.

14 Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).

105 Id. at 479.

Jackson v. Commonwealth, 590 S.E. 2d 520, 527 (Va. 2004) (quoting Jenkins v. Commonwealth, 423 S.E.2d
360, 366 (Va. 1992)) (intemal quotation marks omitted).

Id. The U.S. Supreme Court has clarified that “a suspect who has received and understood the Miranda
wamings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced
statement to the police.” Berghuis v. Thompkins, 130 S.Ct. 2250, 2264 (2010). The suspect must affirmatively
invoke the right to silence by telling police s/he does not wish to be questioned. Id. at 2260.

108 Washington v. Commonwealth, 323 S.E.2d 577, 585-86 (Va. 1984).

365

there was no evidence that he was “subjected to physical or psychological coercion of any
kind.”

Protection from False Confessions

In addition to the requirement that the defendant’s Miranda waiver be knowing and voluntary,
the confession itself must be voluntary to be admissible.” The U.S. Supreme Court has held
that a court must consider the totality of the circumstances to determine whether the defendant’s
statements “were the product of his free and rational choice.”!!! However, the Court held in
Colorado v. Connelly that “coercive police activity is a necessary predicate to the finding that a
confession is not ‘voluntary.’”!"? The Court of Appeals of Virginia, in adopting the Connelly
standard, has held that while the “mental condition of the defendant is surely relevant to [his]
susceptibility to police coercion . . . , evidence of coercive police activity is a necessary predicate
to the finding that a confession is not ‘voluntary.””1!3

The Supreme Court of Virginia has held, however, that a mentally retarded defendant is entitled
to have expert witnesses testify on the reliability of his/her confession.'"* In Pritchett v.
Commonwealth, a capital case in which the defendant was sentenced to life imprisonment at trial,
the trial court refused to permit the testimony of two mental health experts who would have
testified that the defendant’s mental retardation made him prone to false confessions."° On
appeal, however, the Supreme Court of Virginia held that such testimony is admissible “so long
as the expert does not opine on the truth of the statement at issue” because mental retardation is
not within the range of common experience of the average juror. '"°

Mental Illness

As with persons with mental retardation, the mentally ill also face an increased risk of falsely
confessing to a crime because they often lack confidence in their own memories and are more
susceptible to coercive interrogation tactics.!!” Curtis Moore, for instance, who suffered from
schizophrenia,'!® was convicted of the rape and murder of an elderly woman in 1975 in Emporia,
Virginia." Police officers, who were aware that Moore had been hospitalized for mental

109 Id.
0 Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602
(1961)).
11 Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968) (per curiam).
12° Colorado v. Connelly, 479 U.S. 157, 167 (1986).
13 Commonwealth v. Peterson, 424 S.E.2d 722, 723 (Va. Ct. App. 1992) (quoting Connelly, 479 U.S. at 164)
(internal quotations omitted).
is Pritchett v. Commonwealth, 557 S.E.2d 205, 207-08 (Va. 2002).

° Id.
U6 Id. at 208.
47 Follette, supra note 82, at 48-49.
48" Frank Green, Arrest Made in ‘75 Slaying: DNA Leads to New Suspect in Killing of Emporia Teacher; Man Now
Dead Was Convicted, RICHMOND TIMES-DIsPATCH, Aug. 12, 2008, at Al.
49" Moore v. Ballone, 488 F. Supp. 798, 800 (E.D. Va. 1980). The Supreme Court of Virginia affirmed Moore’s
conviction without opinion. Id. at 802. Moore was sentenced to life imprisonment at trial. Meet the Exonerated:
Virginia, NORTHWESTERN LAW BLUHM LEGAL CLINIC: CTR. ON WRONGFUL CONVICTIONS,
hittp://www.law. n.edu/wrongfulconvictions/ ions/valndex. html (last visited Jan. 31, 2013).

366

disorders, questioned him about the crime after receiving “several complaints about his
suspicious behavior.”!”° After being interrogated for several hours at the police station, Moore
made “{s]everal inconsistent but incriminating statements.”!*! “The police [then] escorted
[Moore] to the victim’s home, where... he made further statements placing himself at the
victim’s home on the night of the murder.”’”? Moore was subsequently convicted of the offense
based largely upon this confession. 7°

In 1980, however, the U.S. District Court for the Eastern District of Virginia granted Moore’s
habeas petition, finding that “there was an insufficient showing of a waiver of [his] Miranda
rights” and noting that Moore was “surely mentally disoriented” during his interrogation.
Moore was not retried for the offense.'?° In 2008, DNA testing revealed that another man,
Thomas Pope, had committed the rape and murder.’*° Although Pope was subsequently
convicted of the offense,!” the delay in his apprehension gave him the opportunity to commit
additional crimes: in 1991, he was convicted of abducting and forcibly sodomizing a nine-year-
old girl.

Virginia Law Enforcement Practices

Virginia law enforcement officers receive some training relevant to recognizing and
communicating with persons who have mental retardation and mental illness.’° The extent to
which this training incorporates special steps to be taken while interrogating a person who may
have mental retardation or a mental illness, however, is less clear. The Virginia State Police
indicates that it “does not disseminate information on techniques of interview and interrogation,”
including information related to the interrogation of the mentally retarded and the mentally ill. 1%°
While the Danville Police Department has some policies related to “handling the mentally ill,”
none of these policies relate specifically to interrogation techniques.'*! The Norfolk Police
Department has not promulgated special policies for interrogating the mentally retarded and
mentally ill, but it states that it is “common practice” for any indication of mental impairment or
disability “to be noted in statement or notes.”'” Similarly, the Arlington County Police
Department stated that it does not have guidelines regarding the interrogation of persons with

120° Moore, 488 F. Supp. at 800.

21 Td. at 800-01.

122" Id. at 801.

123 See id.

4 Td. at 808. The order was subsequently affirmed by the U.S. Court of Appeals for the Fourth Circuit. Moore v.
Ballone, 658 F.2d 218 (4th Cir. 1981).

125 Green, supra note 118.

126 Id.

27 Frank Green, Second Conviction in'75 Emporia Murder Leaves Many Pleased, RICHMOND TimEs-DISPATCH,
Mar. 26, 2010.

128 Green, supra note 118.

See supra notes 60-67 and accompanying text.

Va. Dep’t of State Police Survey Response, supra note 65, at 5.

Crry OF DANVILLE POLICE DEpP’T, GENERAL ORDER OPR.117 (1998) (on file with author).

‘2 City of Norfolk Police Dep’t Survey Response, provided by Capt. Ed Ryan, to Mark Pickett, 5 (Feb. 14, 2012)
(on file with author).

367

mental retardation or mental illness, but that officers are required to “advise the magistrate” if
they believe that the suspect is mentally ill.'"°

Conclusion

Virginia provides some measures to ensure that the Miranda rights of a mentally retarded or
mentally ill person are sufficiently protected and that false or coerced confessions are not
obtained or admitted into evidence. In particular, Virginia law permits expert testimony on
mental health factors that might affect the validity of a confession. Virginia courts will also
consider a defendant’s mental retardation or mental illness when determining whether a Miranda
waiver or confession was voluntary. However, Virginia does not require law enforcement
officers to follow any special procedures when interrogating a suspect with mental retardation or
mental illness. Accordingly, Virginia is in partial compliance with Protocols #3 and #4.

Recommendation

As past cases demonstrate, there is a legitimate and serious risk that suspects with mental
retardation or mental illness will falsely confess to crimes in Virginia, even in the case of capital
prosecutions. Therefore, the Assessment Team recommends that Virginia adopt policies and
procedures to ensure that all law enforcement officers are trained to identify these suspects and
employ appropriate interrogation techniques that are not likely to lead to false confessions.

For instance, social scientific research has demonstrated that suspects with mental retardation
“are more susceptible to interrogation techniques such as ‘maximization’ (statements such as ‘if
you do not waive now, you will get the death penalty’) and ‘minimization’ (statements such as ‘I
just need to go over some formalities’).”!* As such, officers should be trained to avoid these
techniques when interrogating a suspect who exhibits signs of mental retardation. Officers

should also ask suspects to explain the Miranda waming in their own words to_gauge

comprehension and to ensure that the suspect’s waiver is knowingly made.’”” To ensure that the
confession matches what law enforcement knows about the crime scene, officers should ask

suspects detailed questions about the crime that would not be known to the general public. Any
discrepancies should be scrupulously noted by the officer. '%°

Finally, fully recording police interrogations would provide courts with a better means to assess
whether a confession was false or coerced.'*”

183 arlington Cnty. Police Dep’t Survey Response, provided by Capt. Michelle Nuneville, to Mark Pickett, 5 (June
2012) (on file with author).

4 Andrew Guthrie Ferguson, The Dialogue Approach to Miranda Warnings and Waiver, 49 AM. CriM. L. REV.
1437, 1461 (2012).

185 Td. at 1468-75 (explaining a standard for assessing Miranda comprehension).

‘86 In the Earl Washington case, the interrogating officer told Washington specific details about the crime scene;
Washington then repeated these details back to the officer in his own confession, creating the false appearance that
Washington knew detailed facts about the murder. Zinie Chen Sampson, Va. Jury Awards Exonerated Death-Row
Inmate $2.25 Million from Investigator ’s Estate, ASSOCIATED PRESS, May 7, 2006.

‘87 This issue is discussed further in Chapter Two on Law Enforcement Identifications and Interrogations, Protocol

368

D. Protocol #5

The jurisdiction should have in place policies that ensure that persons who may
have mental retardation are represented by attorneys who fully appreciate the
significance of their client’s mental limitations. These attorneys should have
training sufficient to assist them in recognizing mental retardation in their clients
and understanding its possible impact on their clients’ ability to assist with their
defense, on the validity of their fessions” (where licable) and on their
eligibility for capital punishment. These attorneys should also have sufficient funds
and resources (including access to appropriate experts, social workers and
investigators) to determine accurately and prove the mental capacities and adaptive
skills deficiencies of a d dant who counsel beli may have mental retardation.

Protocol #6

The jurisdiction should have in place policies that ensure that persons who may
have mental illness are represented by attorneys who fully appreciate the
significance of their client’s mental disabilities. These attorneys should have
training sufficient to assist them in recognizing mental disabilities in their clients
and understanding its possible impact on their clients’ ability to assist with their
defense, on the validity of their fessi ” (where licable) and on their initial
or subsequent eligibility for capital punishment. These attorneys should also have
sufficient funds and resources (including access to appropriate experts, social
workers, and investigators) to determine accurately and prove the disabilities of a
defendant who counsel believes may have mental disabilities.

Defense Counsel Training’**

Virginia does not require capital defense counsel to receive any special taining on recognizing
or assessing mental retardation or other mental health issues in their clients, °° However, the
Virginia Indigent Defense Commission (Commission), which oversees indigent defense counsel
qualification standards,“° requires all attorneys seeking recertification to provide capital
representation at trial, on direct appeal, or during state habeas corpus proceedings to receive ten
hours of capital defense training every two years.’ Capital defense counsel may obtain training
on issues related to mental retardation and mental illness as part of this requirement.

Attorneys at each of Virginia’s four Regional Capital Defender Offices (RCDs), whose attorneys
represent most capital defendants at trial and on direct appeal, may have received training on
issues related to mental retardation and mental illness irrespective of the Commission

138 For further discussion on training of defense counsel, see Chapter Six on Defense Services.

189 Va, Indigent Def. Comm’n Survey Response, provided by Jae K. Davenport, Standards of Practice Enforcement
Attomey, Va. Indigent Def. Comm'n, to Paula Shapiro, 21, (Apr. 4, 2012) (on file with author) [hereinafter VIDC
Survey Response]. The Commission reported that “[t]here is no requirement that the attorney must specifically be
trained on [mental retardation and mental illness].” Id.

MO See VA. CODE ANN. § 19.2-163.01(A) (2013).

Statutory Authority and Qualifications, VA. INDIGENT DEF. COoMM’N,
http://www. publicdefender.state.va.us/serving.htm#CAPITALTRIALCOUNSEL (last visited Jan. 30, 2012);
Attorney Certification System (ACeS), INDIGENT DEF. Comm’N,

VA.
http://www. publicdefender.state.va.us/certapp.htm (last visited Feb. 22, 2012).

369

requirements. With respect to mental retardation, RCD West states that its staff attorneys are
“trained to look for deficits in adaptive functioning [through] family interviews” and to examine
“school/mental health records that may document formal IQ testing.”"“? RCD Southeast reports
that it “conduct[s] in-house training on intellectual disabilities and mental health issues relevant
to [its] work.”"“° RCD North also indicates that its attomeys are trained on mental retardation
issues.'“* In April 2012, RCD Central indicated that its attorneys are not trained on issues related
to mental retardation.’ In addition, staff attomeys for the Virginia Capital Representation
Resource Center (VCRRC), the non-profit organization which represents most Virginia death
row inmates in state and federal habeas proceedings, receive some training on mental retardation
and mental disorders, but generally do not receive formal training on screening death row
inmates for the presence of mental or psychological disorders. '“°

However, capital defense counsel training on mental retardation and other issues may be limited
by funding constraints. The Commission has acknowledged that its appropriations may be
inadequate for the effective training, professional development, and continuing education of
capital defense counsel and other members of the defense team.'’ Virginia Capital Defenders
have also stated that their offices do not receive “proper funding and resources to adequately
train its capital defenders in all aspects of litigation.” “*

Some capital defendants in Virginia have waived significant constitutional rights during their
capital proceedings. Of the thirty-five defendants sentenced to death in Virginia since 2000, four
have waived one or more constitutional rights, such as the right to counsel, right to trial, or right
to direct appeal, at some stage of their respective cases.

The Robert Gleason case, for example, illustrates the need for capital defense counsel in Virginia
to be trained to recognize and present potential mental illness claims. Gleason was serving a life

‘2 Capital Defender Office West Survey Response, provided by Steve Milani, Capital Defender, RCD West to
Paula Shapiro, 17-18 (Apr. 2, 2012) (on file with author) [hereinafter RCD West Survey Response].

“3 Capital Defender Office Southeast Survey Response, provided by Doug Ramseur, Capital Defender, RCD
Southeast to Mark Pickett, 21 (Mar. 19, 2012) (on file with author) [herei RCD Survey Response]
Capital Defender Office North Survey Response, provided by Ed Ungvarsky, Capital Defender, RCD North to
Paula Shapiro & Mark Pickett, 7 (Apr. 4, 2012) (on file with author) [hereinafter RCD North Survey Response].

“5 Capital Defender Office Central Survey Response, provided by David Baugh, Capital Defender, RCD Central
to Paula Shapiro, 19 (Apr. 4, 2012) (on file with author) [hereinafter RCD Central Survey Response].

46 Interview by Mark Pickett and Paula Shapiro with Robert E. Lee, Exec. Dir, VCRRC (Apr. 11, 2012) (on file
with author) [hereinafter VCRRC Interview Apr. 2012].

‘47 VIDC Survey Response, supra note 139, at 22 (noting that the RCDs are limited in terms of the availability of
funds, not the availability of appropriate training pro: ).

“48 RCD Central Survey Response, supra note 145, at 19; RCD Southeast Survey Response, supra note 143, at 23
(‘This office could benefit from increased amounts of funding for training.”); RCD North Survey Response, supra
note 144, at 16 (“not enough money to send staff to national trainings”). However, the Capital Defender West
considers the funding adequate for the effective training of all members of his defense team. RCD West Survey
Response, supra note 142, at 19.

449 ‘In addition to the Gleason case discussed after this footnote, David Overton waived his right to trial, requested a
death sentence from the trial judge, and later waived direct appeal. Overton v. Commonwealth, 539 S.E.2d 421(Va.
2000). Thomas Akers waived his right to trial, pleaded guilty, waived his right to present mitigating evidence,
waived direct appeal, and waived state habeas di Akers v. C Ith, 535 S.E.2d 674, 676-77 (Va.
2000); Akers ex rel. Lee v. Angelone, 147 F. Supp. 2d 447 (W.D.Va. 2001). John Allen Muhammad waived his
Tight to counsel during a portion of his capital trial. Muhammad v. Kelly, 575 F.3d 359, 370-71 (4th Cir. 2009).

370

sentence for murder when he killed two fellow inmates by strangulation in separate incidents in
2009 and 2010.’ During trial court proceedings for the 2009 murder, Gleason admitted 2
committing the crime and told the court that he wanted to receive the death penalty.’

further explained that he “already had a few [other] inmates lined up, just in case [he] didn’t ie
the death penalty, that [he] was gonna take out.”!>? Because his defense counsel were attempting
to negotiate a plea agreement for a life sentence, Gleason dismissed them.'°? Despite Gleason’s
clearly-stated desire to receive a death sentence, and although the issue of his competence to
stand trial had been raised, his attorneys did not object to the dismissal or take issue with
Gleason’s competence to represent himself.’*4 Gleason subsequently pleaded guilty and was
sentenced to death.!°° He also waived his right to direct appeal and was executed in 2013.!°°

Access to Investigators and Experts!®”
Trial

While Virginia law does not require the appointment of a mitigation specialist or of investigators
to a capital defense team, capital defendants represented at trial or on direct appeal by one of the
four RCDs have access to the representing office’s staff investigators and mitigation
specialists.!°® The Commission states that RCD staff mitigation specialists are required to have a
bachelor’s degree in social work, psychology or a related degree in mental health or substance
abuse.’ In addition, each RCD states that it seeks to hire staff investigators and mitigation
specialists with a background in psychology or related mental health issues. According to RCD
North, one member of the defense team is “almost always, but not necessarily” trained to screen
for the presence of mental or psychological disorders or impairments.’ RCD West and Central
report that their staff mitigation specialists typically handle the task of screening for the presence

150 Gleason v. Commonwealth, 726 S.E.2d 351, 352 (Va. 2012).
Id.

‘82 Td. Ina later telephone interview, Gleason explained that he did not seek the death penalty because of a desire
to die. Michael Owens, Gleason: ‘People Think I'm Doing This Because I Want To Die’, BRISTOL HERALD
Courier (Va.), May 7, 2012. Rather, he said that a death sentence is “the only way he can keep a promise made to
“someone close’ not to hurt any prison guards.” Id. Gleason did not, however, identify this person. Id.

153 Qwens, supra note 152.

4 Trial Transcript of Pretrial Motions Hearing, Commonwealth v. Gleason, No. F09-279 (Wise Cnty., Va Cir. Ct.
May 28, 2010) (on file with author). The U.S. Supreme Court has held that a defendant who has been found
competent to stand trial may nonetheless be i to represent him/herself at trial. Indiana v. Edwards, 554
US. 164, 178 (2008).

‘85 Gleason, 726 S.E.2d at 353.

156 Id; Justin Jouvenal, Va. Executes Convicted Killer Who Sought Death Penalty, WASH. Post, Jan. 16, 2013,

available http://www. washi ites-convicted-killer-who-sought-death-
peay213011 0200 6015-11e2-9940- Sola Steod story. hn,

r further on access to i and experts for defense counsel, see Chapter Six on Defense
Servos

158 VIDC Survey Response, supra note 139, at 9.
‘8° Sentencing Advocates/Mitigation Specialists and Investigators, Sample Position Job Descriptions, as provided
by the VIDC (Apr. 3, 2012) (on file with author).

‘© RCD North Survey Response, supra note 144, at 17.

371

of mental disorders.’ Capital defendants represented solely by private court-appointed counsel
or privately-retained counsel whose clients are financially unable to afford the cost of
investigators and mitigation specialists must petition the trial court for funding. 1

With respect to experts on mental retardation, Virginia statutory law provides that upon a finding
by the trial court that the defendant is financially unable to pay for expert assistance, “the court
shall appoint one or more qualified mental health experts to assess whether or not the defendant
is mentally retarded and to assist the defense in the preparation and presentation of information
concerning the defendant’s mental retardation.”"*? The defendant is not entitled to choose
his/her own expert under this statute.'° The expert selected by the court must be

(1) A psychiatrist, a clinical psychologist or an individual with a doctorate degree in
clinical psychology;

(2) Skilled in the administration, scoring and interpretation of intelligence tests and
measures of adaptive behavior; and

(3) Qualified by experience and by specialized training, approved by the
Commissioner of Behavioral Health and Developmental Services, to perform
forensic evaluations. '®

The RCDs state that they regularly request and receive the appointment of mental health experts
pursuant to this statute, °°

Virginia law governing the provision of experts on mental illness in capital cases is similar to the
law governing the provision of mental retardation experts.'®’ Upon a motion by the defendant
and a finding by the trial court that the defendant is unable to afford expert assistance,

the court shall appoint one or more qualified mental health experts to evaluate the
defendant and to assist the defense in the preparation and presentation of
information concerning the defendant’s history, character, or mental condition,
including (i) whether the defendant acted under extreme mental or emotional
disturbance at the time of the offense; (ii) whether the capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was significantly impaired at the time of the offense; and
(iii) whether there are any other factors in mitigation relating to the history or
character of the defendant or the defendant’s mental condition at the time of the
offense.

‘81 RCD West Survey Response, supra note 142, at 18 (“Mitigation specialists handle this task in most cases.”);
RCD Central Survey Response, supra note 145, at 20 (noting that the in-house mitigation specialist is trained to
screen for the presence of mental or psychological disorders or impairments).
12 VIDC Survey Response, supra note 139, at 2, 9.
i VA. CODE ANN. § 19.2-264.3:1(A) (2013).
165
165 RCD West Survey Response, supra note 142, at 9; RCD Central Survey Response, supra note 145, at 11; RCD
Southeast Survey Response, supra note 143, at 12; RCD North Survey Response, supra note 144, at 9.

See supra notes 163-166 and accompanying text.
‘8 Va. CODEANN. § 19.2-264.3:1(A) (2013).

372

The expert, who is selected by the court, must be “(i) a psychiatrist, a clinical psychologist, or an
individual with a doctorate degree in clinical psychology who has successfully completed
forensic evaluation training as approved by the Commissioner of Behavioral Health and
Developmental Services and (ii) qualified by specialized training and experience to perform
forensic evaluations.” As with mental retardation experts, the RCDs state that they regularly
request the court to appoint mental health experts pursuant to this statute.!? However, there is
no provision for the appointment of experts on direct appeal.

State Habeas Proceedings

Since the Supreme Court of Virginia was granted exclusive jurisdiction over state habeas
proceedings in death penalty cases in 1995, it has not authorized appointment of any mitigation
specialist, investigator, or expert to assist in the case of a death row inmate petition: ng for state
habeas relief, including inmates with claims of mental retardation or mental illness.” VCRRC
must instead cover the costs associated with the hiring of mitigation specialists and investigators.
State funds appropriated to the agency cannot be used for this purpose.’ As a result, the
organization currently employs only one staff mitigation specialist who serves as the mitigation
specialist and investigator for all its pending cases, which includes the vast majority of Virginia
capital cases currently in state habeas, federal habeas, and clemency proceedings. 3 VCRRC
does not have any other investigators or experts on staff.!”* When expert services are necessary,
VCRRC often requests the expert, such as a mental health specialist, to perform his/her services
pro bono.

Conclusion

Many Virginia capital defense attomeys receive training relevant to recognizing and assessing
mental retardation. However, this training is not required, and it appears that at least some
attorneys have not received training in this area. Moreover, while trial-level defense counsel
have access to investigators, mitigation specialists, and experts qualified to assess mental
retardation, such assistance is not provided by the Commonwealth in state habeas proceedings.
Thus, Virginia is in partial compliance with Protocols #5 and #6.

Recommendation

Given the likelihood of waiver in defendants with mental illness and mental retardation, as well
as the prevalence of such waivers in Virginia capital cases, it is especially important for counsel
to be fully trained to recognize and litigate competency issues. Thus, to ensure that mental
retardation and mental illness are recognized and effectively litigated at all stages of a capital

169 14

1 RCD West Survey Response, supra note 142, at 9; RCD Central Survey Response, supra note 145, at 11; RCD
Southeast Survey Response, supra note 143, at 12; RCD North Survey Response, supra note 144, at 9.

oe Interview with Robert E. Lee, supra note 146.

us Id; VCRRC Survey Response, provided by Robert E. Lee to Paula Shapiro and Mark J. Pickett, 7 (Apr. 5,
2012) (on file with author); Email from Robert E. Lee to Sarah Turberville (Mar. 13, 2013) (on file with author).
Id.

15 14.

373

case, the Assessment Team recommends that Virginia amend its capital defense counsel
qualification standards, applicable to all counsel seeking appointment to a death penalty case, to
guarantee at least one member of the defense team is trained to screen capital clients for mental
retardation and mental illnesses. In particular, capital defense counsel should be trained to
recognize and litigate specific incompetency claims, including competence to stand trial,
represent oneself, waive mitigation, waive direct appeal, and waive state habeas proceedings.

In addition, Virginia should provide for the appointment of investigators, mitigation specialists,
and mental health experts in state habeas proceedings.

E. Protocol #7

The jurisdiction should have in place mechanisms to ensure that, during court
proceedings, the rights of mentally retarded persons are protected against
“waivers” that are the product of their mental disability.

Protocol #8

The jurisdiction should have in place mechanisms to ensure that, during court
proceedings, the rights of persons with mental disorders or disabilities are protected
against “waivers” that are the product of a mental disorder or disability. In
particular, the jurisdiction should allow a “next friend” acting on a death row
inmate’s behalf to initiate or pursue available remedies to set aside the conviction or
death sentence, where the inmate wishes to forego or terminate post-conviction
proceedings but has a mental disorder or disability that significantly impairs his or
her capacity to make a rational decision.

The U.S. Supreme Court has noted that capital defendants with mental retardation “face a special
risk of wrongful execution” because they are less able “to make a persuasive showing of
mitigation in the face of prosecutorial evidence” and “less able to give meaningful assistance to
their counsel” at trial.!° When a defendant with mental retardation waives his/her rights, such as
the right to counsel or the right to present mitigating evidence, these risks are magnified, because
his/her poor decision-making and communication skills are no longer buffered by the aid of
attorneys. Accordingly, defendants with mental retardation should be protected against waivers
that are the result of their disability.

Similarly, there is a risk that the mentally ill will waive their rights due to their mental illness. '””
A study conducted in 2005 found that, of the 106 death row inmates in the United States who
had waived their appeals and volunteered for the death penalty, at least 77% suffered from a
mental illness.!” Thus, it is important for the mentally ill to be protected from waivers that are
caused by their disability rather than by a rational choice.

"Atkins v. Virginia, 536 U.S. 304, 320-21 (2002).
‘77 See supra note 176 and accompanying text.
18 Blume, supra note 7, at 962.

374

Right to Counsel

In Faretta v. California, the U.S. Supreme Court held that a criminal defendant has the
constitutional right to waive his/her right to counsel and proceed pro se, provided the defendant’s
waiver is “knowingly and intelligently” made.!” The Court held in Indiana v. Edwards,
however, that a trial court may deny a defendant’s request for self-representation and insist upon
appointment of counsel for defendants who “suffer from severe mental illness to the point where
they are not competent to conduct trial proceedings by themselves.” a

The Supreme Court of Virginia has held that, for a defendant’s waiver of his/her right to counsel
to be valid, it must be “timely, clear, and unequivocal, and . . . must be voluntarily, knowingly,
and intelligently made.”'®! The validity of the waiver must be demonstrated by “clear, precise
and unequivocal evidence.”!® Trial courts will typically conduct colloquies with defendants to
determine whether they understand the nature and potential hazards of their decisions to
represent themselves.!®° Virginia does not, however, require the trial court “to put the defendant
through any particular ritual” to determine whether the waiver of counsel is valid.’ For
instance, in the previously discussed Robert Gleason case, the defendant was permitted to
dismiss his attorneys and proceed pro se without the trial court conducting an evidentiary
hearing.

For the waiver to be considered voluntary, knowing, and intelligent, the trial court must ensure
that the defendant is aware “of the dangers and disadvantages of self-representation, so that the
record will establish that he knows what he is doing.” ® The court also must consider “the
particular circumstances of [the] case, including the defendant’s background, experience, and
conduct.”'®” However, it is not clear the extent to which a Virginia court will consider a
defendant’s mental retardation or mental illness when determining whether the decision to waive
counsel is voluntary, knowing, and intelligent.

Right to Trial

Virginia case law permits a defendant to waive his/her right to a trial and plead guilty if the trial
court determines that the plea was “made freely and voluntarily following full consultation with
counsel.”'®* If a capital defendant pleads guilty and the prosecution intends to seek the death

19 Faretta v. Califomia, 422 U.S. 806, 835 (1975) (intemal quotations omitted).

‘80 Indiana v. Edwards, 554 U.S. 164, 178 (2008).

181 Thomas v. Commonwealth, 539 S.E.2d 79, 82 (Va. 2000) (citing United States v. Frazier-E], 204 F.3d 553, 558
(4th Cir. 2000)). A defendant’s motion to represent hinvherself is “timely” if it is made before “meaningful trial
proceedings have commenced.” Id.

2 Church v. Commonwealth, 335 S.E.2d 823, 827 (Va. 1985) (quoting White v. Commonwealth, 560, 203 S.E.2d
443, 444 (Va. 1974)).

183 “See Thomas, 539 S.E.2d at 83.

‘8! Church, 335 S.E.2d at 828.

"See supra notes 150-156 and accompanying text.

186 Edwards v. Commonwealth, 644 S.E.2d 396, 402 (Va. Ct. App. 2007) (quoting Iowa v. Tovar, 541 U.S. 77, 89

(2004)).
‘87 Church, 335 S.E.2d at 828.

18 Royal v. Commonwealth, 458 S.E.2d 575, 576 (Va. 1995). This standard was first adopted by the U.S.
Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969).

375

penalty, the defendant “must [also] waive his right to have a jury determine his sentence.” !®

The trial court will instead conduct the sentencing hearing and determine whether to sentence the
defendant to death or life in prison.'%

The trial court will typically conduct a plea colloquy with the defendant before making this
determination, although it does not appear that Virginia law requires the court to follow any
particular format.!*' The Court of Appeals of Virginia has stated that it is “standard” for the trial
court to ask the defendant whether s/he “understood the charges, entered the pleas voluntarily,
... discussed [the plea] with his[/her] lawyer . . . [and] comprehended the maximum
sentences.”!°? The Virginia Supreme Court Rules also provide a form with “suggested
questions” for the trial court to ask the defendant. me

The extent to which the trial court must consider evidence of mental retardation or mental illness
in determining whether a guilty plea is freely and voluntarily made is unclear. In Lewis v.
Commonwealth, a capital case, the trial court “considered a competency assessment” made by a
psychiatrist before determining that the defendant, Teresa Lewis, was competent to plead
guilty.'* While Lewis’s IQ of seventy-two placed her in the “borderline range of mental
retardation,” the psychiatrist “opined that [she] had the capacity to enter pleas of guilty to
charges of capital murder and had the ability to understand and appreciate the possible penalties
that might result from her pleas.’!®° However, a trial court is not required to order such an
assessment before determining whether a defendant who may have mental retardation is
competent to plead guilty.

Right to Direct A ppeal

Virginia law permits a defendant to waive his/her right to direct appeal.!°° As with other waivers
previously discussed, the trial court in which the defendant was convicted must determine
whether the waiver was “knowingly, voluntarily, and intelligently” made.’®” In some cases in
which the defendant was sentenced to death, the Supreme C ourt of Virginia has ordered the trial
court to conduct an evidentiary hearing to determine if the defendant’s waiver is valid, although
there is no rule or law requiring that such a hearing be held.!*

18S Gray v. Warden, 707 S.E.2d 275, 284 (Va. 2011).
180 See id.
191 See, e.g., Lewis v. Commonwealth, 593 S.E.2d 220, 221 (Va. 2004); Coleman v. Commonwealth, 657 S.E.2d
164, 166 (Va. Ct. App. 2008).
a2; Hughes v. Commonwealth, No. 1003-07-1, 2008 WL 2019498, at *4 (Va. Ct. App. May 13, 2008).
‘83 Va, Sup. CT.R. 3A, Form 6.
ni Lewis, 593 S.E.2d at 221.
Id.

al Hudson v. Commonwealth, 590 S.E.2d 362, 364 (Va. 2004).
Id

aa Eg. Zirkle v. Commonwealth, 553 S.E.2d 520, 522 (Va. 2001); Akers v. Commonwealth, 535 S.E.2d 674, 677
(Va. 2000).

376

If the defendant is sentenced to death, however, the Supreme Court of Virginia is required by
statute to conduct an automatic review of the death sentence—a right which cannot be waived by
the defendant. !°°

Right to State Habeas Proceedings and Next Friend Petitions

Virginia’s state habeas procedure is structured in a manner that prevents any Virginia court from
having the jurisdiction over a claim that a death row inmate is incompetent to waive the right to
state habeas proceedings.” While the Supreme C ourt of Virginia has exclusive jurisdiction over
all capital habeas petitions,” this jurisdiction does not begin until after the inmate’s substantive
habeas petition is filed.2°? Until that filing is made, no court has jurisdiction over the case. Thus,
there is no court available for an inmate’s counsel to litigate a claim that the inmate is not
competent to waive post-conviction proceedings.”

In other states and in federal court, “next friend” petitions provide a means to protect a mentally
ill or disabled inmate from waiving his/her post-conviction rights. Under federal law, for
instance, a third party may have standing as a next friend to file a post-conviction petition for
federal habeas corpus relief if the purported next friend can demonstrate that (1) the inmate is
incompetent and unable to make a rational decision as to whether to seek post-conviction relief;
and (2) s/he is “truly dedicated to the best interests of the person on whose behalf [s/]he seeks to
litigate”? It is in the federal court’s discretion as to whether a next friend may be appointed to
pursue post-conviction relief on behalf of the incompetent death row inmate.”

Virginia, however, has no procedure by which a next friend can be permitted to pursue post-
conviction remedies on a death row inmate’s behalf if the inmate has a mental disorder or
disability that impairs his/her capacity to make a rational decision.

Thomas Akers, for instance, was sentenced to death for a robbery and murder in 1999 after
waiving several of his rights.” Akers waived his right to trial, pleaded guilty, and instructed his
attorneys not to present any evidence during his sentencing hearing.””’ He also told the trial
court that he had “no sympathy or remorse” for what he did, and that he wished to receive a
death sentence.° He later waived his right to direct appeal.” When Akers attempted to waive

199 Va. CopE ANN. § 17.1-313(A) (2013). For further discussion of Virginia’s automatic review procedure, see
Chapter Seven on the Direct Appeal and Proportionality Review.

200 For further discussion of state habeas in Virginia, See Chapter Eight on State Habeas Corpus Proceedings.

2! Va. Cope § 8.01-654(C)(1) (2013).

202 See Order Denying Motion for Pre-Petition Jurisdiction, In re Gleason (Va. Oct. 17, 2012) (on file with author).
°03- For this reason, death row inmates are also unable to litigate other pre-petition claims, such as requests for
discovery. See id.

204 See Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990); see also Harper v. Parker, 177 F.3d 567, 569 (6th Cir.
1999).

205 Whitmore, 495 U.S. at 166 (“We therefore hold that [a would-be next friend], having failed to establish that [an
inmate] is unable to proceed on his own behalf, does not have standing to proceed as “next friend” of [the inmate]”);
see also Rees v. Peyton, 384 U.S. 312, 314 (1966).

206 Akers v. Commonwealth, 535 S.E.2d 674, 675-76 (Va. 2000).

27 Id. at 676.

208 Id.

*° Td. at 677.

377

state habeas review, his court-appointed counsel filed a state habeas brief on his behalf, and
“requested an evidentiary hearing to determine Akers’ competence to waive further litigation.”7/°
The Supreme Court of Virginia, however, dismissed the petition without holding a hearing.””!
Akers was executed in 2001.7”

It is not clear whether Akers should have been found incompetent to waive his right to habeas
review. While he had previously been found competent to waive other rights following a
psychiatric evaluation,”/° there was also significant evidence that he suffered from mental
disorders and disabilities.“"* Furthermore, his IQ of fifty-nine was well-within the mentally
retarded range.” While Akers refused to meet with mental health experts hired by the defense,
their review of his medical records indicated that Akers may have been psychotic and that there
was a “high probability [his] ability to make a rational choice [was] impaired.””"® Given this
evidence, Akers’ competence to waive state habeas proceedings would have been better assessed
following an evidentiary hearing.

Conclusion

Virginia has instituted some measures to protect defendants with mental retardation or mental
illness from waivers that are the product of their mental disability. Typically, the trial court must
determine whether a waiver of the right to counsel or the right to trial was voluntarily,
knowingly, and intelligently made, which will include consideration of the defendant’s
intellectual deficiencies and mental condition. However, the court is not required to conduct an
evidentiary hearing before making this determination.

With respect to a death row inmate who wishes to forego state habeas proceedings but has a
mental disorder or disability that significantly impairs his/her capacity to make a rational
decision, Virginia does not permit a next friend to act on a death row inmate’s behalf to initiate
or pursue available remedies to set aside the conviction or death sentence. Nor has Virginia
enacted any other procedures that would allow a death row inmate’s counsel to raise a claim that
the inmate is incompetent to waive state habeas proceedings. Thus, the Commonwealth is in
partial compliance with Protocols #7 and #8.

Recommendation

Because a capital defendant may be considered competent to waive his/her right to counsel or
right to present evidence, it is possible that no evidence of the defendant’s mental retardation or

210 Akers ex rel. Lee v. Angelone, 147 F. Supp. 2d 447, 448 (W.D. Va. 2001).
I

? Kimberly O’Brien, Killer’s Spiritual Adviser Would Give Counsel Again: ‘1 Care For People. I Couldn t Say
No’, ROANOKE TIMES (Va.), Mar. 3, 2001, at Al.
213 Akers v. Commonwealth, 535 S.E.2d 674, 675-76 (Va. 2000).
Matt Chittum, Killer Fights for Chance to Die, Meanwhile, 2 Lawyers Fight Equally Hard to Stop His
Execution, ROANOKE TIMES (Va), Feb. 26, 2001, at Al.

° Id

218 Frank Green, Murderer Fights Push For Stay His Competence Is In Question, Attorneys Say, RICHMOND
TiMES-DISPATCH, Feb. 19, 2001, at B1.

378

mental illness, however abundant, would be presented to the trial court in the first instance or in
subsequent state habeas proceedings.

Accordingly, there should be a greater opportunity to develop a factual record when a capital
defendant or death row inmate attempts to waive his/her constitutional rights. The Virginia
Assessment Team recommends that when a capital defendant or death row inmate attempts to
waive any constitutional right—including the right to counsel, right to trial, right to present
mitigating evidence, right to direct appeal, and right to habeas review—the court should hold an
evidentiary hearing on the matter, provided there is plausible doubt of the defendant’s or
inmate’s competence. With respect to state habeas proceedings, Virginia should grant trial
courts original jurisdiction over capital habeas claims.”"’ The trial court should have jurisdiction
over the case before the petition is filed to ensure that there is a proper venue to consider a claim
that the inmate is incompetent to waive state habeas proceedings.

In addition, Virginia should enact a procedure that allows a next friend to file a state habeas
petition on behalf of a death row inmate who has waived the right to habeas proceedings. This
procedure would ensure that there is a mechanism for a Virginia court to review potential errors
in the case of a death row inmate who may have waived his/her rights due to a mental disorder.

The federal next friend system could serve as a model for this procedure. To prevent frivolous
next friend petitions, an attorney would be required to demonstrate (1) that the inmate’s decision
to forego habeas proceedings is the result of a mental disorder or disability that significantly
impairs his/her capacity to make a rational decision; and (2) that s/he is truly dedicated to the
inmate’s best interests. If the court makes these findings, the attorney would then be empowered
to file a substantive habeas petition on the inmate’s behalf. VCRRC would be empowered to act
as a next friend in these cases.

217

This recommendation is discussed further under Chapter Eight on State Habeas Corpus Proceedings, Protocol
#1.

379

III. ANALY SIS: MENTAL RETARDATION
A. Protocol #1

Jurisdictions should bar the execution of individuals who have mental retardation,
as that term is defined by the American Association on Intellectual and
Developmental Disabilities (AAIDD).”* Whether the definition is satisfied in a
particular case should be based upon a clinical judgment, not solely upon a
legislatively prescribed IQ measure, and judges and counsel should be trained to
apply the law fully and fairly. No IQ maximum lower than seventy-five should be
imposed in this regard. Testing used in arriving at this judgment need not have
been performed prior to the crime.

In 2002, the U.S. Supreme held in Atkins v. Virginia that the application of the death penalty to
persons with mental retardation violates the Eighth Amendment’s ban on cruel and unusual
punishment, but left to the individual states the manner by which to determine if an individual is
mentally retarded.”"° In response to the Atkins decision, the Virginia General Assembly enacted
a statute prohibiting the death penalty for any defendant “determined to be mentally retarded” at
trial.”"° The General Assembly also banned the execution of death row inmates with mental
retardation, but only under certain circumstances.””!

Definition of Mental Retardation

Both the American Association on Intellectual and Developmental Disabilities (AAIDD) and
Virginia definitions of mental retardation are divided into three components: age of onset,
intellectual functioning, and adaptive behavior. The AAIDD defines mental retardation, now
referred to as “intellectual disability,” as “a disability characterized by significant limitations
both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior,
which covers a range of everyday social and practical skills[, and that] originates before the age
of 18.”

For the purposes of determining eligibility for the death penalty, Virginia statutory law defines
mental retardation as

a disability, originating before the age of 18 years, characterized concurrently by
(i) significantly subaverage intellectual functioning as demonstrated by
performance on a standardized measure of intellectual functioning administered in
conformity with accepted professional practice, that is at least two standard

218 The American Association on Mental Retardation (AAMR) changed its name to the American Association on

Intellectual and Developmental Disabilities (AAIDD) in 2007. About Us, supra note 3. The AAIDD, which has a

membership of over 5,000 people “in the United States and in 55 countries worldwide, ” is “the oldest and largest
inary of ls and citizens d about i and di

disabilities.” Id.

219 See Atkins v. Virginia, 536 U.S. 304 (2002).

220 Va. CODEANN. § 18.2-10(a) (2013).

21 See VA. CODE ANN. § 8.01-654.2 (2013).

222 FAQ on Intellectual Disability, supra note 1.

380

deviations below the mean and (ii) significant limitations in adaptive behavior as
expressed in conceptual, social and practical adaptive skills.?”

Intellectual Functioning Component

The AAIDD definition of mental retardation does not require a particular intelligence quotient
(IQ) test score to demonstrate a significant limitation in intellectual functioning. While the
AAIDD notes that “limitations in intellectual functioning are generally thought to be present if
an individual has an IQ test score of approximately 70 or below[,] IQ scores must always be
considered in light of the standard error of measurement, appropriateness, and consistency with
administration guidelines.””* Specifically, “[s]ince the standard error of measurement for most
1Q tests is approximately 5, the ceiling may go up to 75.””° Moreover, evaluation of persons
with mental retardation is too complex an issue to rely on a single IQ score.

Other factors may also decrease the reliability of an individual IQ test score. The Flynn Effect is
a phenomenon recognized by the AAIDD whereby average scores on an IQ test artificially
increase over time.”’ For example, while the average score on an IQ test known as the WAIS-
III was 100 when the test was developed in 1995, the average score increased to 103 in 2005.
Thus, a person who scored a seventy-three on this test in 2005 might have an actual IQ of
seventy.”° According to the AAIDD, “best practices require recognition of a potential Flynn
Effect when older editions of an intelligence test . . . are used in the assessment or interpretation
ofan IQ score.” Another phenomenon, the practice effect, causes an “artificial increase in IQ
scores when the same [test] is re[-Jadministered within a short time interval.”*"' The AAIDD
states that it is “established clinical practice” to “avoid administering the same intelligence test
within the same year to the same individual because it will often lead to an overestimate of the

23 Va. CODEANN. § 19.2-264.3:1.1(A) (2013).

224 Frequently Asked Questions on Intellectual Disability and the AAIDD Definition, AM. Ass’N ON INTELLECTUAL
& DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_185.cfm (last visited June 27, 2012).

228 See James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, 27 MENTAL
& PuysicAL DIsaBiLity L. Rep. 11, 20 n.22 (2003) (noting that “relevant professional organizations have long
recognized the importance of clinical judgment in ing general intell 1 functioni and the
inappropriateness and imprecision of arbitrarily assigning a single IQ score as the boundary of mental retardation”);
AM. ASS’N ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, & SYSTEMS OF
Supports 5 (9th ed. 1992) (“Mental retardation is characterized by significantly subaverage intellectual capabilities
or ‘low intelligence.’ If the IQ score is valid, this will generally result in a score of approximately 70 to 75 or
below. This upper boundary of IQs for use in classification of mental retardation is flexible to reflect the statistical
variance inherent in all intelligence tests and the need for clinical judgment by a qualified psychological
examiner.”); AM. ASS’N ON MENTAL DEFICIENCY, CLASSIFICATION IN MENTAL RETARDATION 11 (Herbert J.
Grossman ed., 8th ed. 1983) (“This upper limit is intended as a guideline; it could be extended upward through IQ
75 or more, depending on the reliability of the intelligence test used. This particularly applies in schools and similar
settings if behavior is impaired and clinically determined to be due to deficits in reasoning and judgment.”); DSM,
supra note 3 (“[I]t is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit
significant deficits in adaptive behavior.”).

27 Am. ASS’N ON INTELLECTUAL & DEVELOPMENTAL DISABILITIES, INTELLECTUAL DISABILITY: DEFINITION,
CLASSIFICATION, & SYSTEMS OF SUPPORTS 37 (11th ed. 2010) [hereinafter INTELLECTUAL DISABILITY ].

381

examinee’s true intelligence.””*” Finally, the AAIDD states that, for an IQ test to be considered
a valid measure of intellectual functioning, it must be “an individually administered,
standardized instrument,” as opposed to “[s]hort forms of screening tests” or group-administered
1Q exams.”

In contrast with the AAIDD definition, Virginia imposes a bright-line IQ score requirement of
seventy or lower for a defendant to prove that s/he is mentally retarded. While the Virginia
mental retardation statute does not expressly call for a particular IQ to prove significantly
subaverage intellectual functioning, it does require a score “on a standardized measure of
intellectual functioning” that is “at least two standard deviations below the mean.”“* The
Supreme Court of Virginia has interpreted this to mean that “the maximum score for a
classification of mental retardation is an I.Q. score of 70.”*° The Court has not permitted
consideration of measurement errors, the Flynn Effect, or other phenomena that affect the
reliability of an individual score.

In Winston v. Warden, for instance, death row inmate Leon Winston argued that his trial counsel
was ineffective for “fail[ing] to present evidence of [his] mental retardation, including [his]
school record diagnosing his mental defects and evidence of the ‘Flynn Effect.” As a child,
Winston had scored a seventy-seven, seventy-six, and seventy- three “on, three administrations of
the Wechsler Intelligence Scale for Children—Revised,” an IQ test.’ He had also been
described as “‘mildly mentally retarded’ for the purposes of special education eligibility”?
Winston argued that his three IQ tests had overestimated his intelligence due to the Flynn
Effect.*° The Supreme Court of Virginia, however, did not consider the Flynn Effect in its
analysis, and held Winston could not have been prejudiced by his trial counsel’s performance
because he could not produce an IQ score of seventy or lower.

232 Id.
3 Id. at 41.
4 See VA. CODE ANN. § 19.2-264.3:1.1(A) (2013).
35 Winston v. Warden, No. 052501, 2007 WL 678266, at *15 (Va. Mar. 7, 2007) (citing Johnson v.
Commonwealth, 591 S.E.2d 47, 59 (2004), vacated on other grounds, 544 U.S. 901 (2005)).
288 Id. While Winston’s attorneys presented some evidence of his intellectual disability at trial, it appears that it
was presented as mitigating evidence, and not as a claim that he had mental retardation and was thus ineligible for
the death penalty. Winston v. Kelly, 624 F. Supp. 2d 478, 511-12 (W.D. Va. 2008) (noting that Winston did not
did not raise this [mental retardation] claim at trial or on appeal”).

Id.

“8 Id. at 513.
* Id. at 514.
240 Winston v. Warden, No. 052501, 2007 WL 678266, at *15 (Va. Mar. 7, 2007). In subsequent federal habeas
proceedings, defense counsel discovered that Winston had scored a 66 on a fourth childhood IQ test. Winston v.
Kelly, 784 F. Supp. 2d 623, 625-26 (W.D. Va. 2011). Based on this new evidence, the U.S. District Court granted
Winston a new hearing on the issue of mental retardation. Id. at 635. The U.S. Court of Appeals for the Fourth
Circuit affirmed this decision in 2012. Winston v. Pearson, 683 F.3d 489, 507 (4th Cir. 2012). In 2013, the U.S.
Supreme Court denied the Commonwealth’s petition for a writ of certiorari, effectively affirming the Fourth
sane 's decision. Pearson v. Winston, No. 12-492, 2013 WL 656182, at *1 (U.S. Feb. 25, 2013). The Lynchburg
ealth’s Attomey juently decided he would not seek the death penalty at the re-sentencing hearing.
Soe Dave Thompson, P) ‘s Won't Seek R ing in 2002 Lynchburg Homicides, News & ADVANCE
(Mar. 1, 2013), available at — http://www.newsadvance.com/news/local/article_02342df2-81c6-11e2-b2c3-
001a4bcf6878.html.

382

The Virginia mental retardation statute also describes the manner by which the intellectual
functioning testing must be conducted. It provides that “[a]ssessment of intellectual functioning
shall include administration of at least one standardized measure generally accepted by the field
of psychological testing and appropriate for administration to the particular defendant being
assessed, taking into account cultural, linguistic, sensory, motor, behavioral and other individual
factors.””4! The testing must “be carried out in conformity with accepted professional practice,
and whenever indicated, . . . include information from multiple sources.”” Finally, the statute
directs the Commissioner of the Virginia Department of Behavioral Health and Developmental
Services (DBHDS) to “maintain an exclusive list of standardized measures of intellectual
functioning generally accepted by the field of psychological testing.””“

Commendably, this portion of the statute seeks to ensure that only scientifically valid IQ tests are
admissible in determining whether a defendant is mentally retarded. The “exclusive list” of
standardized IQ tests maintained by the DBHDS Commissioner was developed by a panel of
mental health professionals, along with the participation of the Virginia Office of the Attorney
General and capital defense counsel.“ Until 2007, the list included some of the less reliable
short-form, group-administered IQ tests.“° However, the list has since been updated, and now
only includes types of “individually administered comprehensive tests of intelligence”
recommended by the AAIDD.™*°

Adaptive-Behavior Component

In addition to intellectual limitations, the AAIDD definition of mental retardation requires
“significant limitations in . . . adaptive behavior, which covers a range of everyday social and
practical skills.” Whereas the intellectual-functioning component of mental retardation relates
to a person’s academic skills, the adaptive-behavior component reflects one’s capacity to
perform everyday tasks and to conform to social norms.”° Because adaptive behavior is a
separate component of mental retardation, a person with an IQ below seventy might not be
considered mentally retarded if s/he does not also exhibit deficiencies in adaptive skills. The
current AAIDD definition divides adaptive behavior skills into three categories:

241 Va. CODEANN. § 19.2-264.3:1.1(B)(1) (2013).
Id.

243 Id.
Minutes of Meeting: Commissioner's Standardized Measures of Intellectual Functioning Review Panel, Va.
Dep’T OF BEHAVIORAL HEALTH & DEVELOPMENTAL Servs. (Aug. 15, 2007), available at
http://www.dbhds. virginia. gov/documents/O LD/ofo-SMIFRP-20070822minutes.pdf.
245" For instance, the Beta III is a group-administered IQ test, described by its publisher as useful for “[o]btain[ing]
a quick assessment of adults’ nonverbal intellectual abilities” and “for screening large numbers of people for whom
administering comprehensive test batteries would be time-consuming and costly.” Beta III, PEARSON ASSESSMENTS,
http://www. com/HAIWEB/C ductdetail.htm?Pid=015-8685-
202&Mode=summary (last visited May 16, 2012). The AAIDD states that screening tests such as this are “not
ded” for ing mental dation. INTELLECTUAL DISABILITY, supra note 227, at 41.

248 See Minutes of Meeting: Commissioner's Standardized Measures of Intellectual Functioning Review Panel,
supra note 244.
247 FAQ on Intellectual Disability, supra note 1.

8 INTELLECTUAL DISABILITY, supra note 227, at 43-44. For a more detailed explanation of adaptive functioning,
see id. at 43-55.

383

Conceptual skills—language and literacy; money, time, and number concepts; and
self-direction

Social skills—interpersonal skills, social responsibility, self-esteem, gullibility,
naiveté (i.e., wariness), social problem solving, and the ability to follow rules,
obey laws, and avoid being victimized

Practical skills—activities of daily living (personal care), occupational skills,
healthcare, travel/transportation, schedules/routines, safety, use of money, use of
the telephone”?

Under AAIDD standards, a person suffers from significant limitations in adaptive behavior if
s/he performs “at least 2 standard deviations below the mean of either (a) one of the
[aforementioned] three types of adaptive behavior ..., or (b) an overall score on a standardized
measure of conceptual, social, and practical skills.”2°°

The Virginia statute conforms to the AAIDD definition of mental retardation with respect to this
component of the disability, as it requires the defendant to demonstrate “significant limitations in
adaptive behavior as expressed in conceptual, social and practical adaptive skills.”°! The statute
further provides that “[a]ssessment of adaptive behavior shall be based on multiple sources of
information, including clinical interview, psychological testing and educational, correctional and
vocational records.”*°? The adaptive-behavior assessment must include “at least one
standardized measure generally accepted by the field of psychological testing for assessing
adaptive behavior and appropriate for administration to the particular defendant being assessed,
unless not feasible.”

Age of Onset Component

The AAIDD definition of mental retardation states that the disability must “originate[] before the
age of 1g According to the AAIDD, “[t]he purpose of the age of onset criterion is to
distinguish [mental retardation] from other forms of disability that may occur later in life,” such
as brain damage due to malnutrition.” The AAIDD, however, specifically warns that mental
retardation “does not necessarily have to have been formally identified” before age eighteen for a
diagnosis to be valid. Mental retardation might go unnoticed in childhood for a variety of
reasons. For instance, a person with mental retardation from an underprivileged background or

FAQ on Intellectual Disability, supra note 1.
250 Frequently Asked Questions on Intellectual Disability and the AAIDD Definition, supra note 224.
251 Va. CODEANN. § 19.2-264.3:1.1(A) (2013).
22 Va. CODEANN. § 19.2-264.3:1.1(B)(2) (2013).
Id. The statute further states that “[iJn reaching a clinical judgment regarding whether the defendant exhibits
significant limitations in adaptive behavior, the examiner shall give performance on standardized measures whatever
weight is clinically appropriate in light of the dant’s history and ck istics and the context of the
assessment.” Id.
a FAQ on Intellectual Disability, supra note 1.
= INTELLECTUAL DISABILITY, supra note 227, at 27.
Id.

384

from a foreign country might not have access to the mental health screening or educational
resources needed to document mental retardation at a young age.”””

Virginia’s mental retardation statute is identical to the AAIDD definition of mental retardation
with respect to the age of onset component, requiring the defendant’s mental retardation to have
“originate[d] before the age of 18.5 The statute does not require evidence that the defendant’ s
mental retardation was diagnosed in childhood. In fact, the statute states that “[a]ssessment of
developmental origin shall be based on multiple sources of information generally accepted by the
field of psychological testing . . . , recognizing that valid clinical assessment conducted during
the defendant’s childhood may not have conformed to current practice standards.”*°* This
provision appears to recognize that a mentally retarded defendant may not have been properly
diagnosed in childhood. In one death penalty case, however, the Supreme Court of Virginia
stated that the “legal definition of mental retardation established by the legislature” requires the
defendant to prove “that he was diagnosed as being mentally retarded before the age of 18.””"° It
is unclear whether Virginia courts have applied this diagnosis requirement in other cases.

Limitations on Post-conviction D eterminations of Mental Retardation

Despite the U.S. Supreme Court’s decision in Atkins that execution of the mentally retarded
violates the Eighth Amendment’s ban on cruel and unusual punishment, Virginia statutory law
does not provide any means for a death row inmate to prove that s/he is mentally retarded if
his/her state habeas petition was denied before April 29, 2003.7" In the wake of Atkins, the
Virginia General Assembly enacted a statute outlining the proper procedure for a death-
sentenced inmate to present a claim of mental retardation.” Under the statute, if an inmate’s
direct appeal or state habeas petition was pending as of April 29, 2003, the inmate was permitted
to “file an amended petition containing his claim of mental retardation.” If the Supreme Court
of Virginia found that the inmate’s claim was “not frivolous,” it was required to “remand the
claim to the circuit court for a determination of mental retardation.””™*

The same statute, however, states that if an inmate alleging mental retardation “has completed
both a direct appeal and a [state] habeas corpus proceeding . . . , he shall not be entitled to file
any further habeas petitions in the Supreme Court and his sole remedy shall lie in federal
court.” Thus, in effect, Virginia law never banned the application of the death penalty to
mentally retarded persons whose state habeas proceedings were completed before April 29,
2003. In Walker v. True, the U.S. Court of Appeals for the Fourth Circuit considered whether

257 John H. Blume et al., Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death
Penalty Cases, 18 CORNELL J. L. & PuB. POL’y 689, 730 (2009) (noting that such “tests are not performed for
charitable reasons, for instance where institutions do not want to stigmatize a child, or financial reasons, if
institutions do not want to pay benefits or have responsibility”).
258 Va. CODEANN. § 19.2-264.3:1.1(A) (2013).
259 Va. CODEANN. § 19.2-264.3:1.1(B)(3) (2013).
200 Winston v. Warden, No. 052501, 2007 WL 678266, at *15 (Va. Mar. 7, 2007) (emphasis added). Age of onset
was not central to the mental retardation issue raised in this case. See id.
om VA. CODE ANN. § 8.01-654.2 (2013).

Id.

385

death row inmate Darick Walker was entitled to a hearing on his claim of mental retardation in a
Virginia state court.” Walker, whose state habeas proceedings were completed before A pril 29,
2003, argued that the Virginia statute “violate[s] the Equal Protection clause of the Fourteenth
Amendment because there is no rational basis for treating petitioners who have completed their
state habeas proceedings differently than those who have not.”°’ While the court held that the
Virginia scheme was constitutional,” one judge dissented, noting that the Virginia statute denies
certain death row inmates the right to a jury trial on the issue of mental retardation, “despite
being identically situated” to other death row inmates.

Conclusion

While Virginia law requires appropriate clinical testing to be used in determining whether a
capital defendant has mental retardation, Virginia’s definition of mental retardation is
inconsistent with the AAIDD. The Supreme Court of Virginia has held that a defendant must
present an IQ score of seventy or below to prove that s/he has mental retardation, a requirement
that the AAIDD has expressly rejected and is contrary to the modern, scientific understanding of
mental retardation. Virginia courts also will not consider phenomena that can influence or
artificially inflate a person’s IQ score, such as the Flynn Effect. Finally, the Court indicated in
one case that a defendant alleging mental retardation must provide documentation that the
disability was diagnosed before age eighteen. This is not only inconsistent with the AAIDD
definition, but can also lead to the sentencing to death of persons with mental retardation simply
because they were not properly tested as a youth or because records of such testing were not
maintained or could not be found. Thus, Virginia is in partial compliance with Protocol #1.

Recommendation

The Assessment Team recommends that the Virginia General Assembly amend its mental
retardation statute to fully conform to the AAIDD definition. The statute should not require a
particular IQ score to prove mental retardation and should allow courts to take into account
errors of measurement like the Flynn Effect and practice effect. In addition, the statute should
clearly provide that formal mental retardation testing administered before the age of eighteen is
not required to prove mental retardation.

*° Walker v. True, 399 F.3d 315, 324-25 (4th Cir. 2005).

27 Td. at 325.

268 Id. The court held that “Virginia’s differentiation is reasonably related to the state’s interest of efficient
utilization of its judicial resources.” Id. The court did, however, grant Walker an evidentiary hearing on the issue of
mental retardation in federal district court. Id. at 327.

269 Id. at 328 (Gregory, J., dissenting).

386

B. Protocol #2

For cases commencing after the United States Supreme Court’s decision in Atkinsv.
jnia’”’ or the State’s ban on the execution of the mentally retarded (the earlier
of the two), the determination of whether a defendant has mental retardation should
occur as early as possible in criminal proceedings, preferably prior to the
guilt/innocence phase of a trial and certainly before the penalty stage of a trial.

Virginia statutory law provides that, “[iJn any case in which the offense may be punishable by
death and is tried before a jury, the issue of mental retardation . . . shall be determined by the jury
as part of the sentencing proceeding.”””! Similarly, if the defendant waives his/her right to a jury
and the case is tried before a judge, “the issue of mental retardation . . . shall be determined by
the judge as part of the sentencing proceeding.””” This is problematic because jurors hearing a
mental retardation claim after the determination of guilt may be strongly influenced by evidence
of future dangerousness or vileness.

In Prieto v. Commonwealth, the Supreme Court of Virginia affirmed that the issue of mental
retardation must be decided at the penalty stage of the trial.’ In Prieto, the trial court
“trifurcated the trial into three phases: guilt or innocence, mental retardation, and sentencing.” and
However, based on a finding of juror misconduct, the court declared a mistrial during mental
retardation deliberations.” In the retrial, the court declined to trifurcate the trial; instead “the
issue of Prieto’s mental retardation was determined by the jury as part of the sentencing
proceeding in his bifurcated trial.”?”° On direct appeal, Prieto argued that “to assure that his
mental retardation claims would be considered on the merits without the taint from evidence of
future dangerousness, evidence of vileness, or victim impact evidence,” the retrial should have
been trifurcated in the same manner as the first trial or the trial court should have made the
mental retardation determination in a pretrial hearing.?”’” The Supreme Court of Virginia,
however, held that “the issue of mental retardation is not to be separated from the issue of
punishment, but is to be determined by the jury as part of the sentencing phase of the bifurcated
trial.”

Conclusion
Under Virginia law, trial courts must determine whether a capital defendant has mental

retardation during the sentencing phase of the trial. Accordingly, Virginia is not in compliance
with Protocol #2.

27 Atkins v. Virginia, 536 U.S. 304 (2002).
a VA. CODE ANN. § 19.2-264.3:1.1(C) (2013).
Id.
m8 Prieto v. Commonwealth, 682 S.E.2d 910 (Va. 2009).
4 Td. at 914.
Id.
278 Id. at 916.
27 14, at 923.
278 Id.

387

Recommendation

The Assessment Team recommends that Virginia amend its statute to require a pretrial
determination of whether a capital defendant has mental retardation, so long as the defendant can
present some credible evidence that s/he is mentally retarded. This should not, however,
preclude the defendant from presenting a mental retardation claim in the sentencing phase of the
trial, in the event that a pretrial hearing is not granted or the defendant does not prevail in that
hearing.?”°

The Assessment Team notes that there are distinct advantages to determining mental retardation
in a pretrial hearing. If a defendant is determined to have mental retardation prior to
commencement of trial, the Commonwealth is spared a long, expensive, and unnecessary capital
proceeding. This frees the court, prosecution, and defense counsel to devote their limited
resources to other matters.”* Several jurisdictions have already adopted these procedures.”

C. Protocol #3

Where the defense has presented a sub ial showing that the defendant may have
mental retardation, the burden of disproving mental retardation should be placed
on the prosecution. If, instead, the burden of proof is placed on the defense, its
burden should be limited to proof by a preponderance of the evid

Virginia statutory law provides that, in a capital trial, “[t]he defendant shall bear the burden of
proving that he is mentally retarded by a preponderance of the evidence” and thus ineligible for
the death penalty.” Accordingly, Virginia is in compliance with Protocol #3.

279 A capital defendant may be constitutionally entitled to present his/her claim of mental retardation before a jury,
irrespective of whether a pretrial hearing is permitted, as a result of the U.S. Supreme Court’s decision in Ring v.
Arizona, which provides that a capital defendant is entitled to ajury determination of factors necessary to sentence a
defendant to death. Ring v. Arizona, 536 U.S. 584, 609 (2002). This issue, however, has not yet been addressed by
the U.S. Supreme Court.

289 Allowing pretrial determinations of mental r may also parties to resolve cases through a
plea agreement when there is compelling evidence of mental retardation.

81 See, eg., ARIZ. REV. STAT. § 13-753 (2011) (providing that Arizona capital defendants who score seventy-five
or below on a pretrial IQ test are entitled to a pretrial hearing on mental retardation); Ky. REV. STAT. ANN. §
532.135(1)—(2) (2011) (providing that when a Kentucky capital defendant raises the issue of mental retardation, the
trial court “shall determine whether or not the defendant is a seriously mentally retarded defendant” at least ten days
before the beginning of the trial); State v. Lott, 779 N.E.2d 1011, 1015 (Ohio 2002) (holding that the question of
whether an Ohio capital defendant is mentally retarded should be decided by the trial court “in a manner comparable
to a ruling on competency”); FLA. R. CRIM. P. 3.203 (stating that a Florida capital defendant is entitled to a pretrial
determination of mental retardation following the proper defense motion and an examination by at least one
qualified expert).
® Va. CODEANN. § 19.2-264.3:1.1(C) (2012).

388

IV. ANALY SIS: MENTAL ILLNESS
A. Protocol #1

Prosecutors should employ, and trial judges should appoint, mental health experts
on the basis of their qualifications and relevant professional experience, not on the
basis of the expert’s prior status as a witness for the State. Similarly, trial judges
should appoint qualified mental health experts to assist the defense confidentially
according to the needs of the defense, not on the basis of the expert’s current or past
status with the State.

Defense Experts

Virginia statutory law provides for the appointment of mental retardation and mental illness
experts by the trial court in capital cases.“’’ While the expert is selected by the trial court, the
appointment statute includes qualifications standards.”** The Assessment Team is not aware of
any recent cases in which the trial court appointed a defense expert who was not qualified in a
capital case. Although some of the Regional Capital Defender Offices reported that trial courts
did not always appoint the expert of their choice, none indicated that unqualified experts had
been appointed.”

Prosecution Experts

The prosecution is entitled to the appointment of its own mental health expert if the capital
defendant provides notice of its intent to present expert testimony “to support a claim in
mitigation relating to the defendant’s history, character or mental condition.””°° If the defendant
does not cooperate with this appointed expert, “the court may admit evidence of such refusal or,
in the discretion of the court, bar the defendant from presenting his expert evidence.””*’ The
qualification standards for this expert are identical to the standards for the expert appointed to the
defense.

The Assessment Team could not determine what factors Virginia prosecutors consider when
requesting the appointment of mental health experts in capital cases.“° However, in the

See supra notes 163-170 and accompanying text.
24 See id.

RCD Central Survey Response, supra note 145, at 12 (stating that defense counsel are typically able to select
the expert of their choice); RCD Southeast Survey Response, supra note 143, at 12-13 (stating that defense
counsel’s ability to select their own expert “varies” based on the judge, but not reporting any problems with
unqualified experts); RCD North Survey Response, supra note 144 (not reporting any problems with unqualified
experts); RCD West Survey Response, supra note 142, at 10 (stating that defense counsel are “usually” able to
select their own experts).

285 Va. CODEANN. § 19.2-264.3:1(E)-(F) (2013).

287 Va. CODEANN. § 19.2-264.3:1(F)(2) (2013).

288 Va. CODE ANN. § 19.2-264.3:1(F)(1) (2013); see supra notes 167-170 and accompanying text. Similar
provisions provide for the appointment of a prosecution expert on the issue of mental retardation. See VA. CODE
ANN. § 19,2-264.3:1.2(E)—(F) (2013).

289 The Assessment Team attempted to survey several of Virginia’s Commonwealth’s Attorneys to determine,
among other things, the manner by which prosecution experts are requested and appointed, but the prosecutors

389

overwhelming majority of capital cases reviewed by the Assessment Team, it appears that
prosecution experts have been selected based on their qualifications, and not based on the
expert’s current or past status with the Commonwealth.

Conclusion

Virginia has enacted statutory qualification standards for mental health experts in capital cases.
Moreover, Virginia courts appear to have appointed qualified mental health experts to assist
defense counsel and prosecutors in these cases. Accordingly, Virginia is in compliance with
Protocol #1.

B. Protocol #2

Jurisdictions should provide adequate funding to permit the employment of
qualified mental health experts in capital cases. Experts should be paid in an
amount sufficient to attract the services of those who are well trained and who
remain current in their fields. Compensation should not place a premium on quick
and inexpensive evaluations, but rather should be sufficient to ensure a thorough
evaluation that will uncover pathology that a superficial or cost-saving evaluation
might miss.

A Virginia capital defendant at the trial-level is entitled to the appointment of mental health
experts upon a finding that s/he is unable to afford expert assistance.““’ These experts are
selected by the trial court.”*! Virginia does not place any caps on fees or hourly rates paid to
these experts.” The amount paid and any limitations on hours are left to the discretion of the
trial judge." One of the Regional Capital Defender Offices surveyed by the Assessment Team
reported that compensation for experts is typically “fair.”*** Virginia also allows experts to be
reimbursed for “reasonable” travel expenses.” Periodic billing and payment is available for
court-appointed investigators, mitigation specialists, and other experts. ”°°

Virginia does not, however, allow for the appointment of any experts during state habeas
proceedings.”"’ Experts are especially important during state habeas proceedings, as this is the
only opportunity for a Virginia inmate to present claims of ineffective assistance of counsel in

declined to complete the survey. See Letter from David N. Grimes, President, Va. Ass’n of Commonwealth’s
Att’ys, to John Douglass, Chair, Va. Assessment Team on the Death Penalty (Apr. 23, 2012), infra Appendix.
200 "See supra notes 163-170 and accompanying text. For further di ion on the i and ¢
of experts, see Chapter Six on Defense Services.
2)" See id.
2 Tnterview by Paula Shapiro with John Rickman, Director of Fiscal Services, and Mary Gilbert, Executive Sec’y
Office, Sup. Ct. of Va. (Apr. 20, 2012) (on file with author).
Id

294
295
296

RCD Central Survey Response, supra note 145, at 10.

Interview with John Rickman and Mary Gilbert, supra note 292.

RCD Southeast Survey Response, supra note 143, at 11; RCD Central Survey Response, supra note 145, at 10
(“All of our expert appointment order permit periodic billing and payment.”); Interview with John Rickman and
Mary Gilbert, supra note 292.

27 "See supra notes 171-175 and accompanying text.

390

state court.”°* A claim that trial counsel was ineffective for failing to present evidence of mental
retardation or mental illness will require the opinion of an expert to prove that the inmate is, in
fact, mentally retarded or mentally ill. Without experts to assist the defense claims related to the
defendant's mental retardation, mental illness, or incompetency to be executed may go un-
litigated or unnoticed.

Conclusion

Virginia has established a structure for the appointment and reasonable compensation of mental
health experts at the trial stage. However, there is no allowance of the appointment or
compensation of any experts on direct appeal or during state habeas proceedings. Thus, Virginia
is in partial compliance with Protocol #2.

Recommendation

The Assessment Team reiterates the need for Virginia to establish a procedure for the
appointment and compensation of experts during state habeas proceedings in capital cases. The
current system by which mental health experts are appointed in capital cases at the trial level
could serve as a model in this regard.

C. Protocol #3

The jurisdiction should forbid death sentences and executions with regard to
everyone who, at the time of the offense, had significant limitations in both
intellectual functioning and adaptive behavior as expressed in conceptual, social,
and practical adaptive skills, resulting from mental retardation, dementia, or a
traumatic brain injury.

While Virginia has enacted legislation prohibiting the application of the death penalty to persons
with mental retardation,” the Commonwealth does not prohibit the application of the death
penalty for persons whose intellectual disabilities are very similar to mental retardation but
which manifest after age eighteen, including those caused by dementia and traumatic brain
injury.“ Thus, a Virginia defendant who suffered brain damage after the age of eighteen would
still be eligible for the death penalty, even if s/he suffered from intellectual and adaptive
behavior limitations that would otherwise qualify as mental retardation.*”!

Conclusion
Virginia does not prohibit the application of the death penalty to persons who suffer from

significant limitations in both intellectual functioning and adaptive behavior which onset after
the age of eighteen. Accordingly, Virginia is in partial compliance with Protocol #3.

298 Lenz v. Commonwealth, 544 S.E.2d 299, 304 (Va. 2001) (“Claims raising ineffective assistance of counsel
must be asserted in a habeas corpus proceeding and are not cognizable on direct appeal.”)

289 See supra notes 220-269 and accompanying text.

300 ABA, supra note 3. See also INTELLECTUAL DISABILITY, supra note 227, at 27.

5! Va. CODEANN. § 19.2-264.3:1.1(A) (2013).

391

Recommendation

The diminished culpability of defendants with mental retardation arises from their intellectual
and adaptive limitations, not the cause of these limitations.” Accordingly, persons who suffer
from these limitations should be afforded the same protection under the law, irrespective of the
cause of the disability.

The Assessment Team, therefore, recommends that Virginia 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 defendant would have to prove that s/he suffers from the same intellectual
functioning and adaptive behavior limitations as a person with mental retardation.

D. Protocol #4
The jurisdiction should forbid death sentences and executions with regard to

everyone who, at the time of the offense, had a severe mental disorder or disability
that significantly impaired the capacity (a) to appreciate the nature, consequences

or wr 1 of one’s d () to ise rational jud in relation to
conduct, or (c) to conform one’s conduct to the requirements of the law. A disorder
manifested primarily by rep d criminal 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 this recommendation.

Following the U.S. Supreme Court’s decision in Atkins v. Virginia banning the application of the
death penalty to persons with mental retardation,’ the ABA adopted a policy calling for the
prohibition of the execution of persons who suffer from severe mental disorders.** Much as the
ban on executing persons with mental retardation was supported by the American Association on
Intellectual and Developmental Disabilities, this proposal is supported by three leading mental
health groups: the American Psychiatric Association,*°° the American Psychological
Association,*°° and the National Institute on Mental IIIness.°°”

This Protocol, based on ABA policy, is carefully drawn to ensure that the exemption would
apply only to a narrow class of the severely mentally ill. The mental disorder must be “severe,”

3 See Atkins v. Virginia, 536 U.S. 304, 318 (2002) (holding that mentally retarded defendants’ “deficiencies . . .
diminish their personal culpability”).
303 Tq

54 ABA, supra note 3.
35 Position on d ibility in Capital Sentencing, AM. PsyCHIATRIC ASS’N,
http://www. psychiatry. STfFe%20Labray/Aetveeaey i 20and9 20 Position %20 'ps2005_Dimi
nishedResponsibility. pdf (last visited Dec. 18, 2012).

3° ABA, supra note 3, at 3 (citing Am. Psychological Ass’n, Excerpt from the Council of Representatives 2005
Meeting Minutes (Feb. 18-20, 2005); Excerpt from the Council of Representatives 2006 Meeting Minutes (Feb. 17.
19, 2006).
3” Criminal Justice and Forensic Issues, NAT'L ALLIANCE ON MENTAL _ ILLNESS,
http://www.nami.org/Template.cfm?Section=NAMI Policy_Platform& Template=/ContentM anagement/C ontentDis
play.cfm&ContentID =41302 (last visited Dec. 18, 2012).

392

meaning a serious psychotic disorder such as schizophrenia, mania, major depressive disorder, or
a dissociative disorder that causes “delusions (fixed, clearly false beliefs), hallucinations (clearly
erroneous perceptions of reality), extremely disorganized thinking, or very significant disruption
of consciousness, memory and perception of the environment.”°% The disorder must
“significantly impair cognitive or volitional functioning at the time of the offense” and therefore
“only applies to offenders less culpable and less deterrable than the average murderer.”
Moreover, the exemption would not apply to persons with disorders, such as antisocial
personality disorder and other Axis II personality disorders, which manifest primarily by
repeated criminal conduct or are attributable solely to the acute effects of voluntary use of
alcohol or other substances.

This position extends the logic of the U.S. Supreme Court’s decisions in Atkins—prohibiting the
execution of those with mental retardation—and Roper v. Simmons—prohibiting the execution of
juvenile offenders—to those with severe mental illnesses because the application of the death
penalty in those cases is “inconsistent with both the retributive and deterrent functions of the
death penalty.”"!° Like persons with mental retardation, persons suffering from these severe
mental illnesses or disorders possess “diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the reactions of others.”°"! For these
reasons, the execution of those with a severe mental illness similarly does not serve the death
penalty’s deterrent and retributive purposes”!

Virginia Law on the Application of the Death Penalty to Persons with Severe Mental Disorders

Virginia law does not prohibit the application of the death penalty to persons who suffer from
severe mental disorders or mental disabilities other than mental retardation. *"3

Virginia does permit a criminal defendant to prove that s/he is not guilty by reason of insanity. °'
Criminal insanity can be demonstrated in one of two ways: (1) by proving that, at the time of the
offense, the defendant “was labouring under such a defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing; or, if he did know it, that he did not
know he was doing what was wrong”; or (2) by proving that his/her “mind has become so
impaired by disease that [s/Jhe is totally deprived of the mental power to control or restrain
his[/her] act.”*!° Virginia’s two insanity tests differ significantly from the severe mental illness
standard articulated in this Protocol.

308 ABA, supra note 3, at 6.

3° Id. at 6-7.

310 Id. at 5. See also Roper v. Simmons, 543 U.S. 551, 578 (2005); Atkins v. Virginia, 536 U.S. 304, 320-321
(2003).

311 Atkins, 536 U.S. at 318. See also Roper, 543 U.S. at 551 (“Retribution is not proportional if the law’s most
severe penalty is imposed on one whose ility or thiness is diminished, to a ial degree, by
reason of youth and immaturity.”).

a2: ABA, supra note 3, at 6.

33 See Juniper v. Warden, 707 S.E.2d 290, 310-11 (Va. 2011) (noting that there was no “controlling authority” to
support the argument that executing the seriously mentally ill is unconstitutional).

she Morgan v. Commonwealth, 646 S.E.2d 899, 902 (Va. Ct. App. 2007).

315 Id. (internal quotation marks omitted). These standards are known as the M’Naghten Rule and the irresistible
impulse test, respectively. Id.

393

Conclusion

Virginia law does not forbid the execution of persons who were severely mentally impaired as
described in this Protocol. Thus, Virginia is not in compliance with Protocol #4.

Recommendation

The Assessment Team recommends that Virginia enact a law forbidding death sentences for and
executions of persons who, at the time of the offense, had a severe mental disorder or disability
that significantly impaired the capacity (a) to appreciate the nature, 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 only would affect 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. If found guilty of capital murder, the defendant would be sentenced to life
in prison without parole in accordance with Virginia law.

E. Protocol #5

To the extent that a mental disorder or disability does not preclude imposition of a
death sentence pursuant to a particular provision of law (see Protocols #3-4 as to
when it should do so), jury instructions should communicate clearly that a mental
disorder or disability is a mitigating factor, not an aggravating factor, in a capital
case; that jurors should not rely upon the factor of a mental disorder or disability to
conclude that the defendant represents a future danger to society; and that jurors
should distinguish between the defense of insanity and the defendant’s subsequent
reliance on mental disorder or disability as a mitigating factor.

As the U.S. Supreme Court has noted, capital defendants suffering from disabilities such as
mental retardation face a special risk of wrongful execution because the disability “can be a two-
edged sword that may enhance the likelihood that the aggravating factor of future dangerousness
will be found by the jury.”"© Moreover, empirical studies have found that jurors are more likely
to impose a death sentence when a defendant is mentally ill or emotionally disturbed,
irrespective of whether the evidence of mental illness is offered as a mitigating factor.*!’

316 Atkins, 536 U.S. at 321.

317 See, e.g., David Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An
Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 CORNELL L. REV. 1638, 1688-89
(1998) (noting, in Table 6, that submission of a defendant’s “extreme emotional disturbance” as a mitigating
circumstance increased the likelihood of a death sentence in capital cases in Philadelphia between 1983 and 1993).
See also Phoebe C. Ellsworth et al., The Death-Qualified Jury and the Defense of Insanity, 8 Law & Hum. BEHAV.
81 (1984).

394

Accordingly, it is important for jurors to be fully and adequately instructed on the manner by
which a defendant’s mental disorders and disabilities must be considered.

Virginia has not adopted mandatory capital jury instructions.*’® Thus, apart from instructions
mandated by the U.S. Supreme Court or the Supreme Court of Virginia in individual decisions,
instructions are left to the discretion of the trial court.°"? The trial court is not required to instruct
the jury that a mental disorder is a mitigating, not aggravating, factor. Nor must the court inform
jurors that they should not rely upon the factor of a mental disorder or disability to conclude that
the defendant represents a continuing serious threat to society.

In addition, Virginia does not require jurors to be instructed in the penalty phase that they should
distinguish between the affirmative defense of insanity—raised by the defendant during the guilt
phase—and the defendant’s subsequent reliance on a mental disorder or disability as a mitigating
factor. The insanity defense is a complete defense to a crime that, if successful, results in a not
guilty verdict.” By contrast, evidence of mental disability or disorder presented in the penalty
phase of a capital trial serves as evidence that defendant should be sentenced to life in prison
rather than death.” Jurors who were presented with, but rejected, evidence of insanity in the
guilt phase may not understand that similar evidence presented in the punishment phase should
be evaluated under a different standard.

Finally, while Virginia’s death penalty statute includes three statutory mitigating factors that
relate to the defendant’s mental state,*” the trial court is not required to instruct the jurors on
these individual factors.°*° Furthermore, the trial court is not required to instruct the jurors on
individual, non-statutory mitigating factors that are supported by evidence.** In Buchanan v.
Angelone, for example, the defendant presented evidence at trial that he was “under the influence
of extreme mental or emotional disturbance” at the time of the offense, which was a statutory
mitigating factor at the time.°” The trial court, however, rejected the defendant’s request that the
jury be instructed on any individual mitigating factor.*“° Instead, the court instructed the jury
that “[i]f you believe from all the evidence that the death penalty is not justified, then you shall

518 See Va. CODE ANN. § 19.2-264.4 (2013) (requiring only that the jury be instructed that “for all Class 1 felony
offenses committed after January 1, 1995, a defendant shall not be eligible for parole if sentenced to imprisonment
for life”).
319 See Justus v. Commonwealth, 266 S.E.2d 87, 92 (Va. 1980) (noting that the trial court properly rejected
instructions offered by the defendant).
a0 Morgan v. Commonwealth, 646 S.E.2d 899, 902 (Va. Ct. App. 2007).
*! See VA. CODE ANN. § 19.2-264.4 (2013).
32 The three relevant mitigating factors are (1) “the capital felony was committed while the defendant was under
the influence of extreme mental or emotional disturbance”; (2) “at the time of the commission of the capital felony,
the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was significantly impaired”; and (3) “even if [Virginia’s definition of mental retardation] is
inapplicable as a bar to the death penalty, the subaverage intellectual functioning of the defendant.” Va. CODE ANN.
§ 19.2-264.4(B) (2013).
om Buchanan v. Angelone, 103 F.3d 344, 347-48 (4th Cir. 1996).

Id.
% Td.; Va. CODE ANN. § 19.2-264.3(b) (1977).
36 Buchanan, 103 F.3d at 347.

395

fix the punishment of the defendant at life imprisonment.”*2” The U.S. Court of Appeals for the
Fourth Circuit later held that this instruction was permissible. °°

Conclusion

Because Virginia law does not require capital juries to be instructed on any of the factors
described in Protocol #5, Virginia is not in compliance with this Protocol.

Recommendation

The Assessment Team recommends that Virginia trial courts instruct capital juries that a mental
disorder or disability is a mitigating factor, not an aggravating factor; that jurors should not rely
upon the factor of a mental disorder or disability as a basis for recommending a death sentence;
and that jurors should distinguish between the defense of insanity and the defendant’s subsequent
reliance on a mental disorder or disability as a mitigating factor.

In addition, trial courts should be empowered to instruct jurors on individual mitigating factors,
both statutory and non-statutory, that are supported by the evidence and offered by the defendant.
These measures will help to ensure that jurors understand complex capital sentencing procedures
and give full consideration to each mitigating factor when deciding whether to sentence the
defendant to death or life in prison.

F. Protocol #6

Jury instructions should adequately communicate to jurors, where applicable, that
the defendant is receiving medication for a mental disorder or disability, that this
affects the d dant’s pi and that this should not be considered
in aggravation.

The U.S. Supreme Court has observed that the courtroom demeanor of capital defendants who
have a mental disability such as mental retardation “may create an unwarranted impression of
lack of remorse for their crimes,” thereby increasing the chance that they will receive the death
penalty.**° Likewise, a mentally ill defendant’s demeanor may be affected if s/he is taking
prescription medication that has mood-altering side effects. Lithium, for instance, which is used

27 1g.
8 1d. at 348.

%9 Atkins v. Virginia, 536 U.S. 304, 321 (2002). Some jurisdictions allow the trial court to instruct the jury that,
because of the defendant’s mental condition, s/he is being adi d a prescription that may affect
his/her courtroom demeanor. See, e.g., FLA. BAR, FLA. STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES § 3.6(c)
(7th ed. 2010) (allowing Florida trial courts to instruct that “(Defendant) currently is being administered
psychotropic medication under medical supervision for a mental or emotional condition. Psychotropic medication is
any drug or compound affecting the mind or behavior, intellectual functions, perception, moods, or emotion and
includes anti-psychotic, anti-depressant, anti-manic, and anti-anxiety drugs.”); State v. Hayes, 389 A.2d 1379, 1382
(N.H. 1978) (requiring New Hampshire trial courts to instruct jurors “about the facts relating to the defendant’s use
of medication” when a criminal defendant is forcibly medicated before trial).

396

to treat bipolar disorder, may cause “[c]onfusion, poor memory, or lack of awareness” in some
patients.

Virginia law, however, does not require capital jurors to be instructed that, if the defendant is
receiving medication for a mental disorder or disability, this affects the defendant’s perceived
demeanor, and therefore the defendant’s demeanor should not be considered in aggravation.

Conclusion
For the reasons stated above, Virginia is not in compliance with Protocol #6.
Recommendation

The Assessment Team recommends that, when supported by the facts in a particular case,
Virginia trial courts should instruct jurors that the defendant is receiving medication for a mental
disorder or disability, that this affects the defendant’s perceived demeanor, and that this should
not be considered in aggravation of punishment.

G. Protocol #7

The jurisdiction should stay post-conviction proceedings where a prisoner under
sentence of death has a mental disorder or disability that significantly impairs his or
her capacity to understand or communicate pertinent information, or otherwise to
assist counsel, in connection with such proceedings and the prisoner’s participation
is necessary for a fair resolution of specific claims bearing on the validity of the
conviction or death sentence. The jurisdiction should require that the prisoner’s
sentence be reduced to the sentence imposed in capital cases when execution is not
an option if there is no significant likelihood of restoring the prisoner’s capacity to
participate in post- iction p dings in the fe le future.

Virginia law does not permit state habeas proceedings to be stayed in capital cases for any
reason. After an inmate’s death sentence is affirmed on direct appeal by the Supreme Court of
Virginia, the circuit court must appoint counsel to represent the inmate within thirty days.
The death row inmate must then file his/her state habeas petition “within sixty days after the
earliest of” the following:

(1) denial by the [U.S.] Supreme Court of a petition for a writ of certiorari
[following] the judgment of the Supreme Court of Virginia on direct
appeal

(2) a decision by the [U.S.] Supreme Court affirming imposition of the
sentence of death when such decision is in a case resulting from a granted
writ of certiorari to the judgment of the Supreme Court of Virginia on
direct appeal, or

38° Lithium (Oral Route): Side Effects, Mayo Clinic, _http://www.mayoclinic.com/health/drug-
information/DR600869/D SECTION=side-effects (last visited August 9, 2013).
351 Va. CODE ANN. § 19.2-163.7 (2013).

397

(3) the expiration of the period for filing a timely petition for certiorari [with
the U.S. Supreme Court] without a petition being filed.*”

There is no exception that permits this filing period to be stayed, tolled, or excused for any
reason, including in instances when the inmate is unable to assist counsel in connection with
such proceedings due to a mental disorder or disability.

Conclusion

Because Virginia does not permit a death row inmate’s state habeas proceedings to be stayed,
Virginia is not in compliance with Protocol #7.

Recommendation

The Assessment Team recommends that Virginia provide for the stay of post-conviction
proceedings in a death penalty case upon a finding that the inmate has a mental disorder or
disability that significantly impairs his/her capacity to communicate with counsel or understand
the proceedings. The determination of whether a prisoner is competent to proceed with state
habeas proceedings should be made following a full evidentiary hearing on the matter.

H. Protocol #8

The jurisdiction should provide that a death row inmate is not “competent” for
execution where the inmate, due to a mental disorder or disability, has significantly
impaired capacity to understand the nature and purpose of the punishment or to
appreciate the reason for its imposition in the inmate’s own case. It should further
provide that when such a finding of incompetence is made after challenges to the
conviction’s and death sentence’s validity have been exhausted and execution has
been scheduled, the death shall be reduced to the imposed in
capital cases when execution is not an option.

The U.S. Supreme Court has held that it is unconstitutional cruel and unusual punishment to
execute a death row inmate who does not have a rational understanding of the reason s/he is to be
executed.*? Furthermore, an inmate raising such a claim is entitled to a full judicial hearing on
the matter.“°* Thus, it is imperative for a state to develop procedures to determine whether an
inmate is incompetent to be executed because of a mental disorder or disability.

32 Va. CODEANN. § 8.01-654.1 (2013).

383 Panetti v. Quarterman, 551 U.S. 930, 959-60 (2007); Ford v. Wainwright, 477 U.S. 399, 409-10 (1986). In
Ford, the U.S. Supreme Court held that the Eighth Amendment prohibits the execution of an “insane” offender who
is not aware of his/her impending execution and the reasons for it. Id. In Panetti, the U.S. Supreme Court clarified
that a determination of competency to be executed requires an inquiry into whether the death row inmate has a
rational understanding of the reasons s/he will be executed. Panetti, 551 U.S. at 959-60.

354 Panetti, 551 U.S. at 960-62 (emphasis added).

398

Contrary to this constitutional mandate, however, Virginia has not enacted any laws or
procedures for determining whether an inmate is competent to be executed.** Virginia death
row inmates not competent for execution must instead rely on the federal courts or a grant of
clemency from the Governor for the required relief. The U.S. District Court for the Western
District of Virginia has stated that, by failing to establish a procedure to determine an inmate’s
competency to be executed, Virginia “has precluded post-conviction review of [a] viable,
fundamentally important and basic constitutional question{] forcing plenary review by a federal
habeas court."

Calvin Swann, for instance, was convicted and sentenced to death for a robbery and murder in
1992.5°” Before the murder, Swann had been involuntarily committed to state mental hospitals at
least sixteen times due to his schizophrenia, and had been found incompetent to stand trial in two
previous proceedings.*** “At the time of the murder he was receiving Social Security disability
benefits because of his schizophrenia”, and state employees had diagnosed him as schizophrenic
“at least 41 times, described him as Psychotic at least 31 times and regularly medicated him with
eight different antipsychotic drugs.”*** He was not, however, receiving proper medication when
he committed the murder.“° A forensic psychiatrist who examined Swann after his conviction
stated that of the thousands of people he had evaluated, he had “only ever seen one person [he]
would classify as exhibiting a more devastating pathology than Calvin Swann.”*"!

However, because Virginia does not have a procedure to determine competency to be executed,
this issue was never considered by a Virginia court. It was not addressed by the Supreme Court
of Virginia on direct appeal.” Although Swann presented a competency claim in his state
habeas petition, the Court dismissed the petition in an unpublished summary order.™? In 1999,
just four hours before the scheduled execution, Governor James Gilmore commuted Swann’s
sentence to life in prison without parole, noting the “compelling and extraordinary
circumstances” and that Swann’s behavior was “nothing short of bizarre and totally devoid of
rationality.”*“* Swann’s response to the Governor’s decision illustrates the depths of his illness:
when told by his lawyers that his sentence had been commuted, “he nodded, then resumed
pacing [in his cell] and mumbling.”

In another case, Virginia death row inmate Percy Walton was granted clemency by Governor
Tim Kaine in 2008.™° Walton had been sentenced to death for three murders that he committed

335 See Walton v. Johnson, 306 F. Supp. 2d 602, 603 (W.D. Va. 2004) (noting that, in a federal habeas corpus
proceeding, the Commonwealth “necessarily conceded that Virginia has no procedure to review [an inmate’s] claim
that he is incompetent to be executed.”)

Id.

BY Swann v. Commonwealth, 441 $.E.2d 195, 198 (Va. 1994).
338 Iq. at 203. Frank Green, Gilmore Grants Swann Clemency; Sentence Commuted to Life Without Parole,
RICHMOND TIMES-DISPATCH, May 13, 1999, at A1.

Green, supra note 338.
340 Id.

Id.
52 See Swann, 441 S.E.2d 195.
%3 Swann v. Taylor, No. 98-20, 1999 WL 92435, at *1, *16 (4th Cir, Feb. 18, 1999).
“ Green, supra note 338.
Id

Death Row Inmate Escapes Death, DANVILLE REG. & BEE, June 10, 2008.

399

in 1996.7 Following the trial, however, evidence arose indicating that Walton had
schizophrenia.™* Although a federal court found him competent to be executed in 2006,” the
Governor stated that Walton’s “mental state had deteriorated since 2003, the most recent
information the [federal] courts had to consider.”*°° Walton had expressed inconsistent
statements about the meaning of the death penalty, having said that execution is “the end” but
also stating that he planned to go to Burger King and ride a motorcycle after being executed. *"
As with Swann, Walton never received a state court hearing on the issue of competency to be
executed.

Conclusion

Contrary to a constitutional mandate, Virginia has not enacted any procedures for determining
whether an inmate is competent to be executed. Virginia death row inmates, irrespective of the
severity of their mental illness or mental disability, must instead rely on federal courts or the
Governor to grant relief. The Commonwealth, therefore, is not in compliance with Protocol #8.

Recommendation

The Assessment Team recommends that Virginia adopt a procedure for determining whether an
inmate is competent to be executed. The procedure should allow for a full evidentiary hearing
and expert witness testimony. The law or procedure should specify that an inmate is
incompetent if s/he has a significantly impaired capacity to understand the nature and purpose of
the death sentence or to appreciate the reason for its imposition in his/her own case. While
Virginia Governors have demonstrated a willingness to commute the death sentences of inmates
who may be incompetent, this system is an inadequate substitute for a true competency hearing.

I. Protocol #9

Jurisdictions should develop and disseminate to police officers, attorneys, judges,
and other court and prison officials models of best practices on ways to protect
mentally ill individuals within the criminal justice system. In developing these
models, jurisdictions should enlist the assi: of izations devoted to
protecting the rights of mentally ill citizens.

As discussed in Mental Retardation and Mental Illness Protocols #1 and #2, Virginia has offered
training materials to some actors in the criminal justice system on methods for protecting
mentally ill inmates in the criminal justice system.**” In particular, law enforcement officers and
corrections officials must receive some training in recognizing and communicating with the

37 Walton v. Commonwealth, 501 S.E.2d 134, 135-37 (Va. 1998).

348 Frank Green, Kaine Spares Inmate's Life: Walton's Sentence Commuted Over Mental-health Concerns,
RICHMOND TIMES-DIsPATCH, June 10, 2008, at Al.

38 Walton v. Johnson, 440 F.3d 160, 178 (4th Cir. 2006) (en banc). Six judges dissented from the opinion. Id. at
182-91.

359 Green, supra note 348.

35! Death Row Inmate Escapes Death, supra note 346.

38 See supra notes 58-79 and accompanying text.

400

mentally ill. However, no such training is offered to judges, and prosecutor training is limited to
training on opposing mental health claims raised by the defendant.*°?

Conclusion

For the reasons stated, Virginia is in partial compliance with Protocol #9.

Recommendation

The Virginia Assessment Team recommends that the Commonwealth’s Attorneys’ Services
Council and the Educational Services Department of the Office of the Executive Secretary of the
Supreme Court of Virginia work with the Virginia Department of Behavioral Health and

Developmental Services to develop training programs for prosecutors and judges on recognizing,
communicating with, and protecting mentally ill individuals in the criminal justice system.

353 See supra notes 69-75 and accompanying text.

401

AMERICAN BAR ASSOCIATION
Virginia Assessment Team
on the Death Penalty

Below is a set of questions related to law enforcement policies, procedures, and practices within the
Commonwealth of Virginia. Please answer each question as thoroughly and accurately as possible,
attaching additional pages if necessary. If you would prefer an electronic copy of this survey, or if you
would prefer to discuss the questions, please contact Mark Pickett at (202) 662-1869 or at
mark.pickett@americanbar.org. We sincerely appreciate your cooperation.

Responses may be mailed or e-mailed to

Mark Pickett

American Bar Association

740 15th Street NW

Office 960

Washington DC, 20005
mark.pickett@americanbar.org

VIRGINIA LAW ENFORCEMENT SURVEY

Name and Title of Respondent:

Agency:

Date:

Eyewitness Identification Procedures

(1) Please identify and describe all authorities—for example, state statutes or intemal guidelines—
governing eyewitness identification procedures. If your agency has adopted written guidelines
regarding those procedures, please provide a copy of those written guidelines with your
response or e-mail a copy to mark.pickett@ americanbar.org.

A. General Guidelines for Administering Lineups or Photospreads
(2) Officer knowledge. Are officers who administer lineups or photospreads prohibited by state law

or other authority—for example, intemal guidelines—from knowing the identity of a suspect
present in a lineup or photospread?

Statements made to eyewitnesses. Are officers who administer lineups or photospreads required
to inform an eyewitness that

(3) S/he should assume that the officer does not know which individual is the suspect?

(5)

(6)

A suspect may or may not be present in the lineup or photospread?

S/he need not identify anyone in the lineup or photospread?

Requirements of eyewitnesses. Upon making an identification—whether during a lineup,
photospread, or showup procedure—is an eyewitnesses required to state, in his/her own words,
how confident s/he is in his/her identification?

If the answer to any of the above is “yes,” please note or provide a copy of the authority that
establishes each requirement.

(7)

(8)

(9)

(10)

B. Foil Selection, Number of Suspects, and Presentation Method

Number of foils. Are officers who administer lineups or photospreads required by state law or
other authority—for example, internal guidelines—to include a specific or minimum number of
foils in a lineup or photospread?

Resemblance of foils to suspect. Are the foils participating in a lineup or included in a
photospread required to bear a certain degree of similarity to the suspect? Please describe those
requirements.

Number of suspects. Are officers who administer lineups or photospreads required to limit the
number of suspects participating in a lineup or appearing in a photospread?

Presentation method. Are officers who administer lineups or photospreads required to conduct a
specific type of lineup or photospread, such as a sequential or simultaneous lineup or
photospread? Please describe those requirements.

If the answer to any of the above is “yes,” please note or provide a copy of the authority that
establishes each requirement.

(11)

C. Recording Procedures

Videotape or digital recording. Are officers who administer lineups, photospreads, or showups
required by state law or other authority—for example, intemal guidelines—to videotape or
digitally record those procedures?

(12)

(13)

(14)

(15)

Audio recording. If the answer to (11) is “no” for some cases, are officers who
administer lineups, photospreads, or showups required to audio record those procedures?

Detailed report. If the answers to (11) and (12) are “no” for some cases, are
officers who administer lineups, photospreads, or showups required to prepare
detailed reports as to how the procedures were administered? Specifically, are
officers who administer lineups required to take a photograph of the lineup?

Eyewitnesses’ statements. Are officers who administer lineups, photospreads, or showups
required to videotape or digitally record an eyewitness’s identification of a suspect?

If the answer to (14) is “no” for some cases, how do officers who administer lineups,
photospreads, or showups document an eyewitness’s statements?

If the answer to any of the above is “yes,” please note or provide a copy of the authority that
establishes each requirement.

(16)

D. Immediate Post-Identification Procedures

Are officers who administer lineups or photospreads prohibited by state law or other authority —
for example, internal guidelines—from giving eyewitnesses feedback on whether they selected
the “right man” during a lineup or photospread procedure?

If the answer to (16) is “yes,” please note or provide a copy of the authority that establishes this
requirement.

(17)

(18)

E. Enforcement

How are the requirements for conducting lineups, photospreads, and showups enforced?

F. Updating Internal Guidelines

Are agency intemal guidelines for conducting lineups, photospreads, and showups regularly
updated? If so, what bases are used to determine when and how these guidelines will be updated?

Suspect Interrogation Procedures

(19)

(20)

Please identify and describe all authorities—for example, state statutes or intemal guidelines—
governing suspect interrogation procedures. If your agency has adopted written guidelines
regarding those procedures, please provide a copy of the guidelines with your response or e-
mail a copy to mark.pickett@ americanbar.org.

A. General Guidelines for Interrogating Suspects

Are officers who interrogate suspects discouraged or prohibited from using certain tactics while
interrogating a suspect? Specifically, are officers limited in the length of time they may spend
interrogating a suspect? Please describe those limitations.

If the answer to (20) is “yes,” please note or provide a copy of the authority that establishes these
requirements.

(21)

(22)

(23)

(24)

(25)

(26)

B. Recording Procedures

Videotape or digital recording. Are officers who interrogate suspects required by state law or
other authority—for example, internal guidelines—to video record any part of those
interrogations? Specifically, must the advisement of rights be video recorded?

Must a suspect’s waiver of rights be video recorded?

Must a suspect’s confession be video recorded?

Audio recording. If the answers to (21) through (23) are “no” for some cases, are officers
who interrogate suspects required to audio record any part of those interrogations?
Specifically, must the advisement of rights be audio recorded?

Must a suspect’s waiver of rights be audio recorded?

Must a suspect’s confession be audio recorded?

If the answer to any of the above is “yes,” please note or provide a copy of the authority that
establishes each requirement.

C. Mental Retardation and Mental Illness
(27) Are officers required by state law or other authority—for example, internal guidelines—to take

any special measures during an interrogation of a mentally retarded or mentally ill suspect?
Please describe those requirements.

If the answer to (27) is “yes,” please note or provide a copy of the authority that establishes this
requirement.
D. Enforcement

(28) | How are the requirements for conducting suspect interrogations enforced?

Other Agency Policies
A. Training Requirements for Law Enforcement

(29) Please identify and describe all authorities—for example, state statutes, state regulations, or
internal guidelines—goveming the training of law enforcement. It would be particularly helpful
to know whether your agency has adopted written guidelines regarding training requirements.
Please provide a copy of those written guidelines with your response or e-mail a copy to
mark.pickett@ americanbar.org.

It also would be particularly helpful to know whether and to what extent the training undertaken by law
enforcement addresses the following issues:

(30) Eyewitness identification procedures. Does any training for law enforcement cover
eyewitness identification procedures? Please describe that coverage.

(31) Suspect interrogation procedures. Does any training for law enforcement cover suspect
interrogation procedures? Please describe that coverage.

(32) Recognizing mental retardation and mental illness. Does any training for law
enforcement cover assessing whether a suspect has mental retardation or mental illness. Please
describe that coverage.

(33)

Recordkeeping. Are records kept of each individual law enforcement officer’s completion of the
training described above?

If the answer to any of the above is “yes,” please note or provide a copy of the authority that
establishes each requirement.

(34)

(35)

(36)

(37)

B. Procedures for Reporting Misconduct

Please identify and describe all authorities—for example, state statutes or intemal guidelines—
providing procedures for private citizens and law enforcement officers alike to report misconduct
by law enforcement officers. It would be particularly helpful to know whether your agency has
adopted written guidelines regarding those procedures. Please provide a copy of those written
guidelines with your response or e-mail a copy to mark.pickett@ americanbar.org.

Please identify and describe all authorities that establish procedures for the disciplining of law
enforcement officers who have been found to have engaged in misconduct. Please provide a
copy of any written agency guideli with your resp or e-mail a copy to
mark.pickett@ americanbar.org.

C. Guidelines on Race and Ethnicity

Recognizing that race and ethnicity may legitimately play a role in the investigation of a capital
case—for example, an eyewitness may identify the perpetrator of a crime by referring, in part, to
the perpetrator’s race or ethnicity—has the Commonwealth of Virginia, generally, or your
agency, specifically, developed and implemented educational programs for prospective and
current law enforcement officials that stress that race and ethnicity should not play an illegitimate
role in the investigation and prosecution of capital cases? Please describe those programs in
detail.

D. Detention or Arrest of Foreign Nationals

Please identify and describe all authorities—for example, state statutes or intemal guidelines—
outlining the specific procedures that must be followed in the event that a suspect who may be a
foreign national is detained or arrested by your agency. It would be particularly helpful to know
whether your agency has adopted written guidelines regarding those procedures. Please provide
a copy of those written guidelines with your response or e-mail a copy to
mark.pickett@ americanbar.org.

(38)

Training. Are law enforcement officers specifically trained to notify the appropriate consular
office of a suspect who has been detained or arrested and who may be a foreign national?

If the answer to 0 is “yes,” please note or provide a copy of the authority that establishes this
requirement.

Collection and Preservation of Biological and Other Forensic Evidence

Note: Portions of this section may be inapplicable to your agency. In that event, please direct us to the
appropriate agency in your response(s).

(39)

(40)

(41)

(42)

A. Evidence Collection

Please identify and describe all authorities—for example, state statutes, intemal guidelines,
accreditation prerequisites—governing the collection of forensic evidence. If your agency has
adopted written guidelines that impose specific collection requirements on your agency or an
affiliated crime laboratory, please provide a copy of those written guidelines with your
response or e-mail a copy to mark.pickett@ americanbar.org.

Evidence collectors, training and certification. Please identify who, in general, is responsible for
and/or involved in collecting forensic evidence at crime scenes in your jurisdiction. Do these
individuals receive any kind of training or certification specific to collecting forensic evidence?
If so, which entities provide this certification?

B. Evidence Preservation

Please identify and describe all authorities—for example, intemal guidelines or accreditation
prerequisites—governing the preservation of biological and other forensic evidence. Please
provide a copy of any written guidelines with your response or e-mail a copy to
mark.pickett@ americanbar.org.

Preservation period—requirements. If your agency is required by state statutes or internal
guidelines to preserve, for a specified period of time, biological and other forensic evidence
collected in the course of an investigation, please describe those requirements.

(43)

(44)

Preservation period—actual practice. Apart from the state statutes and intemal guidelines
addressed in (42), for how long in actual practice is evidence preserved? Does this preservation
include all evidence collected in capital cases or, instead, is it limited to certain kinds of evidence
(for example, only evidence introduced at trial is preserved)?

Evidence available for testing. Please identify and describe all authorities regarding how
biological evidence is made available to defendants and convicted persons who seek to have that
evidence tested. If your agency has adopted written guidelines regarding the processing and
treatment of those requests, please provide a copy of those written guidelines with your
response or e-mail a copy to mark.pickett@ americanbar.org.

* * *

Thank you once again for completing this survey ding law enfe policies, p

and practices within the Commonwealth of Virginia. We welcome any additional information not
specifically addressed by the questions included in this survey.

Defending Liberty
Pursuing Justice

AMERICAN BAR ASSOCIATION
Virginia Death Penalty Assessment Team

Below is a list of questions related to the provision of prosecutorial services in capital cases in the
Commonwealth of Virginia. Please answer each question as thoroughly and accurately as possible,
attaching additional pages if necessary. If you prefer an electronic copy of this survey or would prefer
to discuss the questions over the telephone, please email or call Staff Attorney Mark Pickett at
paula.shapiro@ americanbar.org, (202) 662-1596. You may also mail your responses to Mark Pickett,
American Bar Association — 740 15th Street NW, Washington, DC, 20005.

Name:

District:

Date:

Training, Qualifications, & Compensation of Prosecutors who Handle Capital C ases

1. How do you determine which prosecutors in your office handle capital cases? Please describe
any minimum qualifications.

2. Please list the prosecutors in your office currently screened to handle capital cases, along with
the following information: (1) number of years each prosecutor has practiced law; (2) years of
experience each has as a prosecutor; and (3) total number of prior capital cases handled by each
prosecutor.

3. Are there policies, practices, or procedures governing the caseload of prosecutors in your office
who handle capital cases? Please describe these policies, practices, or procedures.

a. Are there a minimum number of prosecutors assigned to each capital case? If so, what is
that number and what is the procedure for determining whether a capital case receives a
second-chair prosecutor?

b. How many active capital cases is each of your capital prosecutors currently assigned to?

c. What are the overall caseloads (capital and non-capital) of attorneys in your office who
handle capital cases?

d. What, if any policies limit the number of active non-capital cases that your capital
prosecutors are assigned to?

4. What is your office’s current total budget?

a. Has your office’s budget changed over the last five years? If so, how?

b. Have budget limitations required you to assign your capital prosecutors higher
caseloads than you would prefer? If so, please describe what you believe your capital
prosecutors’ caseloads should be if you had a larger budget.

5. Does your office receive funding specifically earmarked for capital cases?

a. If so, how much funding has your office received that is specifically earmarked for
capital cases each year since you became Commonwealth’s Attorney and what are the
sources of that funding?

b. If not, how does your office allocate funds to capital cases?

6. What resources does your office use to train prosecutors to handle capital cases?

a. Do you feel these resources are adequate? Why or why not?

b. What kinds of capital training programs, either in-house or through an outside
organization, are offered?

c. Are assistant prosecutors who handle capital cases required to attend these training
programs? If not, how do you determine which prosecutors attend the trainings?

d. Are there any capital training programs that your prosecutors are no longer able to
attend due to budget constraints? If so, please describe.

e. Do your capital prosecutors receive any special training relevant to the treatment of
racial and ethnic minorities in capital cases? If so, please describe.

7. What are the current salaries for prosecutors in your office who handle capital cases?

8. If your office employs investigators, what are the current salary scales for the investigators in
your office?

Decision to Seek the Death Penalty

1. Please describe your policies, practices, or procedures for determining whether to seek the
death penalty in a case.

a. Does your office require any particular type of evidence be present in the case before
deciding to seek a capital indictment? For instance, is physical evidence tying the
defendant to the crime necessary?

b. Does your office consult with the victim’s family members before deciding to pursue a
capital indictment or to seek the death penalty at sentencing after a capital conviction?
If so, how does their opinion factor into your decision?

c. Does your office consult with defense counsel before deciding to pursue a capital
indictment or to seek the death penalty at sentencing after a capital conviction?

i. Ifso, does your office typically seek the consultation, or is the consultation at
the request of defense counsel?

ii. What sort of information does your office seek from defense counsel to help
inform its decision (if applicable)?

d. Who in your office is responsible for making the ultimate decision to seek the death
penalty (whether at capital indictment or to move forward with the penalty phase after
conviction of a capital offense)?

e. Does your office have a written policy that governs the decision-making process to seek
the death penalty? If so, please provide a copy of that policy.

2. Please describe how your office determines, after capital indictment, not to continue to seek the
death penalty.

a. If applicable, provide the names and dates of the cases in which you elected not to seek
the death penalty after a capital indictment was retumed and provide an explanation as
to why.

b. If not applicable, (e.g. your office has sought the death penalty at trial and through the
sentencing phase in every case indicted capitally), please explain.

Plea Agreements

1. What policies, practices, or procedures are in place to determine whether to make a plea offer
in capital or potentially-capital cases?

a. Who makes the ultimate decision as to whether to make a plea offer?

b. What factors are considered in making this determination?

2. Are there any circumstances in which your office prohibits plea offers? If so, what are those
situations?

3. In yourjudicial district, how many plea bargains were offered in capital cases and how many of
those offers were accepted in the last three years?

Discovery

1. Please describe your office’s policies, practices, and procedures relevant to discovery in trial-
level capital cases.

a. How does your office identify and disclose evidence favorable to the defense?

b. Do you provide prior statements of witnesses to the defense? If so, how long before trial
do you do so?

2. How do you ensure that the prosecutors in your office are meeting their discovery obligations?

3. What policies and procedures does your office have in place to ensure that other law
enforcement agencies (police, crime laboratories, medical examiners, other experts employed
by the state) divulge all potentially exculpatory evidence in a case to your office?

4. Explain your office’s policies, practices, or procedures on providing discovery in capital post-
conviction cases?

c. What kind of discovery do you provide to the defense in capital post-conviction cases?

d. Do you require defense counsel to request specific discovery or do you accept a general
discovery request in capital post-conviction cases?

Policies Relevant to Interrogations, Eyewitness Identifications, Informant Testimony

1. Does your office have any policies for evaluating the quality of the evidence in cases that
primarily rely upon (1) eyewitness identifications, (2) confessions, or (3) the testimony of
jailhouse informants and other witnesses who receive a benefit for their testimony? If so please
describe.

2. Please describe any policies your office has in place regarding the manner which line-ups,
show-ups, and photographic arrays should be administered to eyewitnesses.

Policies Relevant to the Treatment of the Mentally Ill and Mentally Retarded

1. Please describe any policies your office for assessing whether a confession made by a suspect
who is mentally ill or mentally retarded was false or coerced, and whether that suspect fully
understood his/her Miranda rights.

2. What criteria and qualifications does your office consider in selecting mental health experts to
testify in a capital case?

3. Do your capital prosecutors receive any special training to help them recognize mental
retardation, mental illness, and other mental health disorders in defendants, witnesses, or
victims? If so, please describe the type of training they receive.

4. Does your office have any other policies relevant to the treatment of mentally ill or mentally
retarded offenders in capital or potentially capital cases? If so, please describe.
Misconduct
1. Please describe any procedures and policies your office has in place to discover and

appropriately discipline any misconduct by prosecutors in your office.

2. Have any of the prosecutors in your office been disciplined for prosecutorial misconduct in the
last five years? If so, please describe.

General Information about the Death Penalty in Y our J urisdiction

I

In how many cases has your office filed a notice to seek the death penalty since you became the
Commonwealth’s Attorney in your district?

. How many capital cases are currently pending in your office?

. How many capital cases have been brought to a capital trial since you became the

Commonwealth’s Attorney?

. How many capital cases have you personally tried (as first or second chair) in your capacity

Commonwealth’s Attorney or Assistant Commonwealth’s Attomey? Please list dates,
defendants’ name, and dispositions. Please also include any other relevant experience, such as
experience as a capital defense lawyer, you may have.

Additional Information

1.

What have been some of the most difficult challenges you or your office have faced in
prosecuting capital cases?

. Are there any other aspects of the capital punishment in Virginia that you believe the

Assessment Team should focus on? If there are issues relevant to capital prosecutions that you
believe were not covered in this survey, please do not hesitate to identify them.

Attached, please find a copy of the full ABA R dations for the chapter on prosecutors. If
you have any additional comments with respect to the recommendations, please feel free to
include them.

Please do not hesitate to contact us if you have any questions or need clarification. We also
welcome any additional comments or feedback you may have.

David N. Grimes, President
Pittsylvania County

Michael R. Doucette, President Elect
City of Lynchburg

Kim S. White, Vice-President
Halifax County

Raymond F. Morrogh, Secretary/Treasurer
Fairfax County

Robert B. Beasley, Past President
Powhatan County

At Large Directors

Robert B. Beasley, Powhatan County
Paul B. Ebert, Prince William County
Joel R. Branscom, Botetourt County

Board of Directors
Nathan R. Green
Williamsburg/James City County
Matthew J. Britton
King George County
Harvey L. Bryant

City of Virginia Beach
C. Linwood Gregory
New Kent County
Gregory D. Underwood
City of Norfolk
William B. Bray

City of Colonial Heights
Patricia Watson
Greensville County / Emporia
E.M. Wright, Jr.
Buckingham County
James R. Ennis

Prince Edward County
‘Stephanie Maddox
Amherst County

John C. Singleton

Bath County

William F. Neely
Spotsylvania County
‘Theo K. Stamos
Arlington County
Thaddeus R. Cox
Craig County

Roy Evans

‘Smyth County

James E. Plowman
Loudoun County
James P. Fisher
Fauquier County
Raymond F. Morrogh
Fairfax County

David N. Grimes:
P.O. Box 1068

Chatham, Virginia 24531
(434) 432-7900 Fax (434) 432-7903

/

Virginia Association of
Commonwealth’s Attorneys
April 23, 2012

Prof. John Douglass, Chair,
American Bar Association
Virginia Assessment Team on
the Death Penalty

740 15th Street, NW
Washington, DC 2005-1022

re: Virginia Death Penalty Assessment
Dear Professor Douglas:

I write to respond to your letter of February 21, 2012 with
apologies for the delay. Although the letter was addressed to me as
Chairman of the Commonwealth's Attorneys’ Services Council, | also serve
as President of the Virginia Association of Commonwealth's Attorneys
(VACA). The Council is the state agency responsible for training
Virginia's prosecutors. VACA is the voluntary association of Virginia
prosecutors representing their interests in political and social matters. It
is in the latter position and my individual elected capacity that I respond.

As you know, each of Virginia's 120 elected commonwealth's
attorneys serves an individual locality as well as the commonwealth at
large. Each answers to the voters of that locality and is autonomous in
making prosecution decisions within the framework of state and federal
law. Virginia's prosecutors function in offices ranging from a single
attorney (not all are yet full-time) to dozens of full-time prosecutors,
serving jurisdictions ranging from a few thousand to more than a million
citizens. Each elected commonwealth's attorney to whom you sent the
ABA assessment request will decide the extent to which to participate.

General Correspondence:
Post Office Box 3549
Williamsburg, Virginia
23187-3549

April 23, 2012
Page 2

The Virginia Association of Commonwealth's Attorneys, as an organization, respectfully
declines to participate in the assessment. Our Board has discussed the matter and the consensus of
opinion is that the Virginia system of law and procedure applicable to charging and prosecuting death
penalty eligible murders has been, and continues to be, studied and examined by our general assembly
and the state and federal judiciary, as well as by both the prosecution and defense bars. We believe the
current level of scrutiny has served well to protect the legitimate interests of victims, defendants and all
the citizens of the commonwealth. Our position as a group is that further study by, or on behalf of, the
American Bar Association is not warranted and participation in the assessment is not in the best
interest of VACA or those we serve. Although the ABA has enlisted for the Virginia assessment a truly
admirable and distinguished team, whose members we respect, our position frankly derives in part from
our lack of confidence in the neutrality of the ABA regarding the death penalty.

Year after year, and case after case, every death eligible murder case is closely scrutinized from
the moment it is indicted. Every death verdict in Virginia since the reinstatement of the death penalty
has undergone close state appellate review, including mandated review of proportionality, and then the
several levels of direct appellate and habeas consideration. Our general assembly frequently considers
issues involved in death penalty charging and trial as well. If we doubted the present framework for
charging and trying death eligible murders in Virginia we would enthusiastically participate in further
examination of that framework. We do not suffer such a lack of confidence.

With kindest regards, I am,

Yours very truly,

David N. Grimes

QUESTIONNAIRE: DEFENSE SERVICES

From: Paula Shapiro, Staff Attorney, ABA Death Penalty Moratorium Implementation
Project
To: David Baugh, Capital Defender (Central)

Ed Ungvarsky, Capital D efender (North)
Doug Ramseur, Capital Defender (Southeast)
Steve Milani, Capital Defender (W estern)

Date: March 6, 2012

Thank your assistance with this questionnaire. Below is a list of questions related to the
provision of defense services in capital cases, particularly at the trial level, in Virginia. Please
answer each question as thoroughly as possible, attaching any additional pages if necessary. If
written policies exist for any of the information, please include those as well. Similar versions of
this document will be provided to each of the four Capital Defenders and to the Indigent Defense
Commission. If any question is unclear, or you have any other questions or concerns please feel
free to call me at 202-662-1596, Sarah Turberville at 202-662-1595, or Mark Pickett at 202-
662-1869. Please email your responses to paula.shapiro@americanbar.org, ideally by March
19, 2012. Thank you for your assistance with our Virginia Death Penalty Assessment Report.

AUTHORITY TO APPOINT, CERTIFY, AND MONITOR COUNSEL IN DEATH
PENALTY CASES

Assignment of Counsel
1. Please describe how the appointment process pursuant to Va. Code § 19.2-163.7 works in
practice.

a. Who or what entity assigns the attorneys who will represent an indigent defendant
at each stage of the proceedings [pretrial (including arraignment and plea
bargaining), trial, direct appeal, all certiorari petitions, state post-conviction and
federal habeas corpus, and clemency proceedings) ]?

b. Are you aware of cases in your jurisdiction where the Capital Defender was not
appointed?

2. Is there always one capital defender and one court-appointed certified capital counsel
from the list published by VIDC?

a. If not, why not? Please list any reasons.

R

b. What steps, if any, do you take to be appointed to a case (one where you wouldn’t
conflict out)

3. How do judges determine which certified member of the local bar to appoint in addition
to a capital defender?

a. Do you know of any cases in your jurisdiction where any certified capital counsel
was not appointed to represent a capital defendant? If yes, please list the names,
dates, and details.

b. How do you work with judges to ensure qualified applicants who provide quality
representation are appointed as co-counsel?

c. Have there been cases in which a member of your capital staff was appointed to a
case with unqualified, negligent, or ineffective co-counsel? If so, please explain.

4. How does your office internally decide who gets appointed to a case?

5. Does Virginia require for all indigent defendants (including those represented by
privately retained counsel but unable to afford needed expert, investigation, and other
services):

a. Atleast two attorneys to be assigned at every stage of the proceedings?

b. Aninvestigator to be assigned to the case at every stage of the proceedings?

c. A mitigation specialist to be assigned to the case at every stage of the
proceedings?

6. At what point in the proceedings is capital-qualified counsel appointed after a death
penalty-eligible defendant is arrested (i.e. does your office need to wait until the
prosecution notices intent to seek the death penalty, or can a capital defender be
appointed immediately)? Please provide any relevant statute, procedure, or policy.

a. Is the attorney appointed always certified to provide capital representation?

7. Do you know of any capital cases where the defendant was pro se at trial within the last
10 years? If yes, please list.

a. In any of these cases, were attorneys from your office appointed as standby
counsel?

b. Does your office have any policies on serving as standby counsel in capital cases?

8. How does your office handle cases with co-defendants?

a. Has your office adopted a conflict of interest policy? If so, please attach.

b. Do attorneys from your office ever take cases in other Capital Defender Office
jurisdictions in the event of a conflict?

Qualifications and Certification of Capital Defenders
9. Weare aware of the statutory requirements (Va. Code § 19.2-163.8) and the qualification
standards on the VIDC website.
a. Do all of your attorneys meet these qualifications requirements?

b. Who developed these qualification requirements? When were they adopted?

c. Are there any differences in the qualification requirements, including continuing
legal education requirements, for attorneys in the capital defenders versus court-
appointed private bar counsel?

10. Do these qualification requirements ensure that every attorney representing a capital
defendant has:
a. Obtained a license or permission to practice in the jurisdiction;

b. Demonstrated a commitment to providing zealous advocacy and high quality legal
representation in the defense of capital cases; and

c. Satisfied the training requirements set forth in ABA Guideline 8.1 (attached)?

11. Do you ensure that each of your assistant capital defenders has each of the qualifications
listed below?

a. Substantial knowledge and understanding of the relevant state, federal and
international law, both procedural and substantive, governing capital cases;

b. Skill in the management and conduct of complex negotiations and litigation;

c. Skill in legal research, analysis, and the drafting of litigation documents;

d. Skill in oral advocacy;

e. Skill in the use of expert witnesses and familiarity with common areas of forensic
investigation, including fingerprints, ballistics, forensic pathology, and DNA

evidence;

f. Skill in the investigation, preparation, and presentation of evidence bearing upon
mental status;

g. Skill in the investigation, preparation, and presentation of mitigating evidence;
and

h. Skill in the elements of trial advocacy, such as jury selection, cross-examination
of witnesses, and opening and closing statements.

12. Please provide any written policies that your Capital Defender Office may have on the
qualifications and/or certification of assistant capital defenders.

a. Are each of your assistant capital defenders in your Capital Defender Office
certified by the VIDC?

13. Are any attomeys from the public defender offices certified to provide representation in
capital cases? If yes, are such attorneys ever appointed?

Monitoring Capital Counsel: Minimum Standards of Performance
14. There do not appear to be specific standards for performance for counsel (as opposed to
qualification standards, discussed above) in death penalty cases in Virginia. Is this
correct?

a. Has Virginia, the VIDC, or any specific Capital Defender Office, adopted, by
reference, the ABA Guidelines, or specifically, Guideline 5.1 on the Qualifications
of Counsel?

b. If not, how does your Office ensure the high quality performance of your capital
defenders (i.e., to what performance standards are your capital defenders held,
other than rules of professional conduct applying to all attomeys in Virginia)?

c. Does Virginia’s Standards of Practice for Indigent Defense Counsel apply
attorney performance in capital-eligible cases and capital trials?

15. Please describe the process by which you monitor the performance of all capital
defenders in your office?

a. How are Capital Defender staff held accountable for performance during capital
cases/hearings?

16. Does your office monitor or provide any oversight of the performance of court-appointed
private counsel providing capital representation in your jurisdiction? If so please
describe. Please also include any written policies or procedures that may exist.

17. How does the VIDC ensure the quality of representation provided by certified attommeys
eligible for court appointments in death penalty cases?

CAPITAL DEFENDER OFFICES
Office Overview
18. How many attorneys in your office are certified by the VIDC to provide representation
during a capital trial?

a. Are there any uncertified trial attorneys employed at your Capital Defender?

b. Do all of these attorneys actively provide representation in capital cases?

19. How many mitigation specialists does your office employ for use in capital trials? Are
they part-time or full-time? How many hours a week do they work?

Vv

20. Does your office employ any part-time attorneys? If so, please explain their role,
caseload, hours, compensation, and certification status.

Caseloads
21. What is the current caseload of each capital defender in your office?

a. How has caseloads changed in the last five years (increases, decreases?)

b. Do you believe that current caseloads are too high? Please explain.

22. How many capital cases does each staff mitigation specialist work on at a time?

23. How many capital cases does each staff investigator work on at any given time?

24. Does your office have policies to ensure that the workload of capital defenders enables
them to provide each client with high quality legal representation? If yes, please describe.

a. If not, has any entity within the Commonwealth implemented such rules, policies,
or standards limiting capital caseloads?

Grievances & Ineffective Assistance of Counsel Claims
25. Does the VIDC handle complaints by a capital defendant against Capital Defender
counsel?

a. Ifyes, how does the VIDC handle complaints? Please provide any written policies
or procedures.

b. Does VIDC investigate, maintain records, and take action on complaints filed
about the performance of attorneys in death penalty cases?

c. Please describe any cases since 2004 where a capital defendant or death row
inmate filed a complaint against his court-appointed counsel and/or his capital
defender, and what, if any, response was given by your office or the VIDC?

26. Has your office adopted any internal policies or procedures for handling claims of
ineffective assistance of counsel or any other complaints regarding the performance of
counsel at trial made by a capital defendant? If so, please describe. If the procedures are
in writing, please provide.

a. Has your office established any remedies for a capital defendant if s/he makes a
valid complaint regarding the performance of counsel? If yes, please describe.

b. Has Virginia or any entity therein established procedures for handling complaints
and claims of IAC and remedies for valid complaints? If yes, please state which
entity and describe the procedures and remedies.

27. Does your office or any other entity in the Commonwealth keep record of ineffective
assistance of counsel claims in death penalty cases? If yes, please provide any
information related to such claims.

a. Ifno, what entity does keep record of such claims?

RESOURCES AVAILABLE TO CAPITAL COUNSEL

Investigators and Mitigation Specialists
28. How many staff investigators does your office employ for use in capital trials? Are any
investigators part-time or full-time? How many hours a week do they work?

29. What is the process for court-appointed counsel requesting expert and ancillary services,
and how long does that process typically take? Please distinguish between capital
defenders and court-appointed counsel, if applicable.

a. To whom are requests made, to the court, to the Capital Defender, or to the
VIDC?

b. Who receives the funding — the attorney or the expert providing the services?

30. At what rate are investigators, mitigation specialists, and other appointed expert
compensated?

a. To your knowledge, are the court-appointed non-attomey members (investigators,
mitigation specialists, experts) compensated according to a salary scale that is

commensurate with the compensation provided to prosecutor experts and
investigators?

b. Is periodic billing and payment available for court-appointed investigators,
mitigation specialists, and other defense experts?

c. Is additional compensation provided in unusually protracted or extraordinary
capital cases for non-attorney members of the defense team? Please he specific
and provide rates and, if possible, amounts for recent cases.

31. Are there any funds through the Capital Defender Office’s budget for the hiring of
additional expert or ancillary services (e.g., investigators, mitigation specialists) for use at
capital trials?

a. Does Virginia have a plan to ensure that defense counsel receives the assistance
of all expert, investigative, and other ancillary professional services reasonably
necessary or appropriate to provide high quality legal representation at trial? If
yes, please provide the relevant statutes, rules, procedures, policies or other
authority.

b. Does Virginia ensure provision of such ancillary services to privately-retained
attorneys whose clients are financially unable to afford them (despite being able
to afford retained counsel)? If yes, please provide the relevant statutes, rules,
procedures, policies or other authority.

c. Does the office have any funds available to support non-staff investigators,
mitigation specialists, experts from its budget? If yes, how much?

d. Does the VIDC provide any funds for expert services?

e. Does your office ever need to request additional investigative or mitigation
specialist services due to burdensome caseloads of on-staff investigators and
mitigation specialists?

f. How often do capital defenders in your office request funding for additional
investigators?

g. How often do capital defenders in your office request funding for mitigation
specialists?

h. How often do capital defenders in your office request funding for mental health
experts?

32. What is the level of access to those resources in each of those categories (experts,
investigators, mitigation specialists, etc.) at trial?

a. Must requests for expert services (mental health, ballistics, other) be made on a
case-by-case basis for each capital trial?

33. How are investigators, mitigation specialists, and other experts (mental health, ballistics,
and other) selected to assist the defense?

a. Are capital defense counsel typically able to pick the expert of their choice?

b. Is there a roster of experts available to defense counsel?

c. Does your Capital Defender Office have mental health experts (psychologists or
psychiatrists) that it typically works with? If yes, how many and what are their
names?

d. How is the cost of such services considered in the court’s decision to provide
expert and ancillary services?

e. Is an expert’s prior work for the prosecution or professional status with the state a
consideration when selecting expert services?

f. Does counsel have the right to seek such services through ex parte proceedings,
thereby protecting confidential client information? Please provide the relevant
statutes, rules, procedures, and/or policies.

g. Does defense counsel have the right to have such services provided by persons
independent of the government? Please provide the relevant statutes, rules,
procedures, policies or other authority.

h. Does defense counsel have the right to protect the confidentiality of
communications with the persons providing such services to the same extent as
would counsel paying such persons from private funds? Please provide the
relevant statutes, rules, procedures, policies or other authority.

Qualifications and Training of Investigators & Mitigation Specialists

Are there any qualification requirements or standards of practice for capital defender
investigators and mitigation specialists?

34. What type of training or experience in investigation does one typically have to possess in
order to work for your Capital Defender Office as
a. aninvestigator?

b. asa mitigation specialist?

35. Does the VIDC or any other entity in Virginia provide any additional training,
professional development, and continuing education to non-attorney members of the
defense team (either capital defender staff or court-appointed investigators and mitigation
specialists) appropriate to their areas of expertise? If yes, please describe these trainings.

a. Who is performing the training, if there is any training?

b. How often is training available?

c. What is involved in the training?

36. Does your Capital Defender office or the VIDC provide funds for out-of-state training
(e.g. at national capital defender conferences) for capital investigators and mitigation
specialists (both court-appointed and staff)?

AA

DEFENSE SERVICES FUNDING & COMPENSATION
Virginia General Assembly Appropriations & VIDC Budgeting
37. Please describe the budget process for your Capital Defender Office.
a. Do each of the Capital Defender Offices request and receive funding from VIDC?
b. Who in your office determines the amounts of funding to request?
c. How is funding allocated to the four Capital D efender Offices?

d. Who sets the budget for the each of the four capital defender offices?

e. If possible, please provide a copy of your Capital Defender Office budget for the
last five years.

38. What amount of funding has your Capital Defender Office requested and received each
year since 2004?

a. Who determines the amount of funding to request the Virginia General Assembly
for the VIDC and each Capital Defender Office each budget cycle?

39. Does the Capital Defender Offices’ budget support employment of staff investigators,
mitigation specialists, and social workers for capital cases?

a. Does it cover all incidentals (travel costs, copying, etc.) necessary to provide
representation?

a. Are there ever out of pocket costs that Capital Defender attomeys are not
reimbursed for?

b. Does it cover any costs for other expert services (mental health, ballistic, etc)
necessary to provide high quality legal representation?

BB

40. Has your Capital Defender Office or the VIDC ever received any federal grant funding
for capital defense litigation, services, training or other costs associated with the
provision of capital defense services? (i.e., BJS funding initiatives) If yes, please list the
grants received since 2004.

Compensation for Court-appointed Capital Counsel, Capital Defender Office attorneys &
Non-attorney Members of the Defense Team
41. What is the salary for each of the four Capital Defenders?

42. What is the current salary range for an entry-level assistant capital defender?

a. How do salaries for assistant capital defenders increase with experience, seniority,
etc.? If there are applicable pay scales, please provide.

c. If possible, please provide the salary information for all capital defenders and
assistant capital defenders, along with how long they have been employed as a
capital defender in Virginia.

43. Is there a cap on the expenses a capital defender or assistant capital defender can incur
during the capital representation (at any stage of the proceedings)?

44, What is the current salary scale for capital investigators at your Capital Defender Office?
Please provide the scales for entry-level investigators, those with five years of
experience, and those with ten or more years of experience.

a. To your knowledge, are the investigators employed by the capital defender offices
compensated according to a salary scale that is commensurate with the salary
scale of investigators in the prosecutor’s office in the jurisdiction?

b. To your knowledge are the investigators compensated according to a salary scale
that is commensurate with the salary scale for comparable investigator services in
the private sector?

45. What is the current salary scale for mitigation specialists at your Capital Defender
Office? Please provide the scales for entry-level investigators, those with five years of
experience, and those with ten or more years of experience.

cc

a.

To your knowledge, are mitigation specialists and other experts employed by
defender organizations compensated according to a salary scale that is
commensurate with the salary scale for comparable expert services in the private
sector?

46. If you know the compensation rates for prosecutors (any age stage of capital proceedings)
and their investigators handling capital cases, or know how we could find this
information, please let us know.

Court-appointed trial counsel
47. Does your office handle any payment for non-Capital Defender staff court-appointed
capital defender attorneys?

48. Please describe the compensation scheme for court-appointed counsel at trial.

a.

What is the maximum fee that may be incurred by counsel at trial?

. Is there an hourly rate for court-appointed counsel? Please describe.

Is the fee split by lead counsel and co-counsel?

. Who determines the amount of compensation for court-appointed counsel?

Is there a distinction between rates for services performed in or out of court?

Is periodic billing and payment available to court-appointed counsel?

. What is the source of the funding available for compensating court-appointed

defense counsel?

. Is the compensation for court-appointed counsel commensurate with the

prevailing rates for similar services performed by retained counsel throughout
Virginia?

DD

i. Does the fee cover expenses incurred during the course of capital representation
(such as experts, investigators, mitigation specialists, etc.)?

j. Is additional compensation provided in unusually protracted or extraordinary
capital cases during trial for court-appointed counsel? Please be specific and
provide rates and amounts for recent cases.

49. Please provide information on the compensation for court-appointed counsel prior to
2007. If you have information relevant to all stages of capital proceedings, please include.

a. Please describe the pre-2007 compensation scheme.

b. If possible, please describe how compensation levels for court-appointed counsel
have changed since 1976 (i.e, increases and/or decreases on total amount
authorized for capital defense counsel).

50. Are court-appointed counsel fully reimbursed for reasonable incidental expenses at all
stages of capital proceedings?

DEFENSE SERVICES TRAINING
51. What training do assistant capital defenders receive that qualifies as the “specialized

training in capital litigation, plus at least four hours of specialized training” on forensic
science that is required by the qualification requirements every two years?

a. What issues and topics must be included in the training?

b. Does your office require any additional training outside of these ten required hours?
If yes, please describe in detail.

c. Who provides this training?

52. Does your Capital Defender Office conduct, sponsor, or approve specialized training
programs for attorneys representing defendants in death penalty cases?

EE

53. What training is offered by the Capital Defender Office for new attorneys seeking
eligibility for representation in capital cases?

a. Please tell us what specific trainings, including the issues covered, on capital
defense representation have been provided in Virginia within the past five years.

b. Who conducts the in house training sessions?

54. Does your capital defender office employ attorneys or staff who conduct training for your
office capital defense teams?

55. Does the training provided to capital defense counsel in order to qualify for capital
certification by the VIDC and the training your office requires, if any, ensure that
attorneys providing capital representation include:

d. Training on state law, federal, international law, both procedural and substantive law,
related to capital cases?

e. Workshops and training associated with the drafting of litigation documents, legal
research of capital cases and analysis of capital cases?

f. Oral advocacy workshops?

g. Training on pre-trial issues such as investigation, preparation, theory development,
guilt/ innocence, and penalty issues?

h. Training on ethical issues particular to capital punishment?

i. Training on preserving the issues and record for appeal?

j._ Training on the counsel’s relationship with the client and his or her family members?

k. Training on the use of expert witnesses?

FF

l. Training on the use of forensic science (i.e., fingerprints, ballistics, Forensic
Pathology, and DNA Evidence) that includes training on the presentation and rebuttal
of scientific evidence and current developments in biological science, forensics
and/or the mental health field?

m. Management and conduct training involved in the complex negotiations and litigation
of capital trials?

n. The use of mitigation evidence, including investigating/recognizing it, preparing it,
and presenting it?

o. Training on trial advocacy, including jury selection and Batson issues, cross-
examination of witnesses, and opening and closing statements?

56. Do you feel that the office has the proper funding and resources to adequately train its
capital defenders in all aspects of capital litigation?
a. Ifnot, what additional training would you like to see implemented?
57. Are capital defenders trained on the Colorado Method (aka Wymore Method) of jury
selection in capital cases?
Training Related to Mental Retardation and Mental Illness
Please answer the following questions with respect to trial, appellate, and state habeas counsel,
including capital defenders and/or court-appointed counsel.
58. Do your assistant capital defenders receive training:
a. On the investigation, preparation, and presentation of mental retardation and

mental illness (MR/MI)? If yes, what specific issues are addressed during MR/MI
training?

b. On how to recognize MR/MI in capital defendants and/or in death row inmates?
i. Ifo, please describe in detail.

ii. If not, is at least one member of the defense team in capital cases trained
to screen for the presence of mental or psychological disorders or
impairments?

GG

c. Instruct counsel on how MR/MI might impact their client’s ability to assist with
the defense?

d. Instruct counsel on how MR/MI may impact the validity of confessions (where
applicable)?

e. Onthe use and/or choice of mental health expert witnesses?

59. Are all staff capital defenders and court-appointed private counsel required to take this
training?

60. Does the VIDC provide training on MR/MI issues for private defense attorneys?

61. Is there or do you know of any non-VIDC/outside training provided on MR/MI issues for
any other criminal justice actors within Virginia? (e.g., provided by or for prosecutors,
police, corrections officers, court employees, judges, etc.) If yes, please describe.

Funding for Training
62. What is the annual amount of VIDC’s training, professional development, and/or
continuing legal education budget for capital defenders and court-appointed counsel?
Please include documentation, if available.

a. Does the training budget distinguish between attomeys providing representation
at each stage of the proceedings? (i.e., are there separate budgets for attomeys
providing representation at trial, on direct appeal, and/or during state post-
conviction proceedings)?

b. Do each of the Capital Defender Offices have their own budgets for training,
professional development, and continuing legal education? If yes, please include.

c. Who or what entity determines the budget amount that is available for capital
defense training and continuing education?

d. How are budget determinations made?

HH

63. Does the VIDC fund any training for court-appointed counsel and/or capital defenders
provided by Virginia entities?

64. Does VIDC provide funding for capital defenders and/or court-appointed counsel to
attend (non-VIDC) national trainings? If so, what is the budget?

a. How often are court-appointed counsel and/or capital defenders able to attend
national training sessions?

65. Would you consider the amount of funding adequate for the effective training,
professional development, and continuing education of all members of the defense team?

Direct appeal, State Habeas Corpus, F ederal Habeas Corpus, Clemency Proceedings
66. Under any circumstances, do capital trial attorneys from your office represent the
defendant on direct appeal?

a. Who or what entity provides representation during the direct appeal to death row
inmates in Virginia? Please list the attorneys, firms, and/or nonprofit
organizations that you aware provide representation during this stage of capital
proceedings.

67. Under any circumstances, do capital trial attorneys from your office represent the
defendant during state habeas corpus proceedings?

a. Who or what entity provides representation during state habeas corpus
proceedings to death row inmates in Virginia? Please list the attorneys, firms,
and/or nonprofit organizations that you aware provide representation during this
stage of capital proceedings.

b. Before the appellate defender closed two years ago, they took all cases throughout
state on direct appeal?

68. Under any circumstances, do capital trial attorneys from your office represent the
defendant during federal habeas corpus proceedings?

a. Who or what entity provides representation during federal habeas corpus
proceedings to death row inmates in Virginia? Please list the attorneys, firms,
and/or nonprofit organizations that you aware provide representation during this
stage of capital proceedings.

69. Please describe the level of interaction and what specific interactions you (defense
counsel, mitigation specialists, investigators) have with capital attorneys working on later
stages of a capital case.

a. What are your interactions with attorneys working on direct appeal?

b. What are your interactions with attorneys working on state habeas corpus
proceedings?

c. What are your interactions with attorneys working on federal habeas corpus
proceedings?

d. What are your interactions with attorneys working on clemency proceedings?

70.Who or what entity provides representation to death row inmates during clemency
proceedings up to execution? Please list.

a. Is counsel guaranteed at this stage? Please include authority.

b. Are death row inmates’ counsel providing representation during clemency
petitions entitled to compensation and access to investigative and expert resources
from the state?

i. Please describe the access to investigative and expert resources.

c. Are you aware of any cases of the defense counsel of death row inmates being
permitted to meet with the Virginia Governor to discuss clemency?

Please list other persons that you believe we should get in touch with in order to get a full
picture of capital defense services in Virginia.

JJ

Other issues on our Radar
Please note that we are developing questions relevant to other chapters of the report and will
likely have some follow up questions. We appreciate your assistance.

71. Do judges ever override a jury’s decision to impose death and instead impose LWOP
(section 19.2-264.5)? If yes, please list and describe specific cases.

72. It appears there is no right to discovery of witness names or statements (Rule 3A:11).
Please describe the effect this has on cases in your jurisdiction.

73. In your jurisdiction, have you ever had a case where the capital defendant was sentenced
to death twice, once for the rape aggravator and the next for the murder? If yes, how
often? Please provide case names and citations.

74. Do trial courts typically allow defense counsel to employ the Colorado Method (aka

Wymore Method) during capital jury selection? In general, do you believe trial courts
afford adequate time for jury selection in capital cases? Please elaborate if necessary.

If there are any other issues with Virginia's death penalty system you think we should be
aware of, please let us know. Thanks for your assistance.

KK