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September 5, 2013

ABA Death Penalty Review Project releases its assessment for VIrginia

As reported in this Richmond Times-Dispatch article, headlined "Study urges fairness reforms in death penalty cases," a big new report on the operation of the death penalty in the Old Dominion has just been released. Here are the basics:

A two-year study of Virginia’s death penalty to improve fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases. The recommendations are among more than a dozen in the study sponsored by the American Bar Association and released this morning.

A top change urged by the Virginia Death Penalty Assessment Team is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups. Misidentification played a role in the wrongful convictions of 18 Virginians later proven innocent in non-death penalty cases. Although the model policy was released in 2011, a recent survey by the University of Virginia Law School found few police departments had adopted it.

According to the Virginia department of Corrections, Virginia has executed 110 killers – 31 by electrocution and 79 by lethal injection since the U.S. Supreme Court allowed capital punishment to resume in 1976. The toll is second nationally only to Texas, which has executed 503. But in Virginia three out of four persons sentenced to death since 1976 have been executed -- a higher rate than even in Texas, which has carried out roughly half its death sentences.

The ABA study complimented Virginia on improvements including the accreditation of the Virginia Department of forensic Science’s four laboratories and the state medical examiner’s office as well as the certification of their employees. Among the recommendations for improvement, however, was requiring law enforcement agencies to electronically record suspect interrogations and confessions. A recent survey found only nine Virginia police agencies record a majority of their interrogations.

The team also recommends that in capital murder cases the Virginia Supreme Court require prosecutors to disclose the identity and any prior statements of testifying witnesses to allow the defense adequate preparation time. Virginia’s pre-trial discovery rules providing the defense with information to prepare its case are more restrictive than in other states, the team concluded. A defendant in a death case could go to trial without knowing who will testify against them....

The assessment team was chaired by John Douglass, a former federal prosecutor and dean of the University of Richmond Law School where he still teaches. The panel also included Richmond Commonwealth's Attorney Michael Herring, who won a death sentence against Ricky Gray; Mark L. Earley, a former Virginia attorney general whose office defended many death sentences on appeal; and Craig Cooley, a Richmond lawyer who has represented clients in 70 capital murder trials including Lee Boyd Malvo, one of the two Maryland to Virginia snipers.

The report is the result of the ABA’s Death penalty Assessment project which since 2003 has studied and reported on the death penalty in 10 other states.

A copy of the full report is available via the ABA's website at this link.  And the other prior ABA state-specific assessment are available via this page.  Without reading this latest Virginia report in some detail, I cannot readily conclude whether this report's conclusions strike me as sound.  But I can already note that this new ABA state death penalty review report seems, in both tone and content, to be much more complementary about Virginia's administration of capital punishment than most if not all other ABA state death penalty review reports.

September 5, 2013 at 01:06 PM | Permalink

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Comments

"I can already note that this new ABA state death penalty review report seems, in both tone and content, to be much more complementary about Virginia's administration of capital punishment than most if not all other ABA state death penalty review reports."

For sure. This is as close to no criticism as an ABA report is likely to get.

Posted by: Bill Otis | Sep 5, 2013 1:36:11 PM

Mr. Otis, I note the following in the report: "The team also recommends that in capital murder cases the Virginia Supreme Court require prosecutors to disclose the identity and any prior statements of testifying witnesses to allow the defense adequate preparation time. Virginia’s pre-trial discovery rules providing the defense with information to prepare its case are more restrictive than in other states, the team concluded. A defendant in a death case could go to trial without knowing who will testify against them...."

Doesn't seem fair to me. How about to you?

Posted by: Mindy | Sep 5, 2013 5:11:52 PM

Mindy --

The defendant is entitled to full disclosure of exculpatory evidence, and no disclosure of inculpatory evidence. The Supreme Court has never directed any more disclosure than that.

When I was a prosecutor, however, I routinely favored open file discovery. As far as I was concerned, the defense was welcome to see the whole ball of wax.

This is not because I was Mr. Nicey. Mostly it was because I believe it's not a game. The other part was because I wanted the other side to understand, when the verdict came in, that it wasn't such a good idea to play in-your-face tough guy during plea negotiations.

Posted by: Bill Otis | Sep 5, 2013 5:26:18 PM

Bill -

You're right that the constitution doesn't require the prosecution to disclose anything but exculpatory or impeachment information. But most jurisdictions go further by statute. The Jencks Act requires federal prosecutors to disclose its witnesses' prior statements. If you opted for even greater transparency, that's commendable. Most states have something analogous to the Jencks Act. Virginia doesn't. In fact, its rule on discovery in a criminal case (Rule 3:11) expressly bars the trial court from ordering the prosecution to disclose "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," except for scientific reports. Whether this rule is fair depends on one's perspective.

Posted by: arfarf | Sep 5, 2013 6:23:54 PM

arfarf, you write "Whether this rule is fair depends on one's perspective." A man is on trial for his life, and he can't see what the witnesses will say! How can that be fair under any perspctive? Please explain

Posted by: Amy | Sep 5, 2013 7:07:52 PM

Sounds like Virginia likes trial by ambush. Wonder if any legislators have ever been charged with a crime in Virginia. Bet they'd sing a different tune real fast.

Posted by: David | Sep 5, 2013 7:10:50 PM

Hard to believe that the great Virginians like Thomas Jefferson, Patrick Henry, and many others, who believed that trial by jury was the palladium of liberty, would believe trial by ambush in capital cases (or any case) was proper.

Posted by: Peter from Virginia | Sep 5, 2013 7:14:02 PM

Yes, let's disclose all the inculpatory information so that the defense can concoct a story beforehand.

Posted by: federalist | Sep 5, 2013 7:59:09 PM

We all know that Virginia is choc full of fervent Christians. They preach when they teach in schools. They swear by and on the Bible for any occasion. But one thing many of them fail to teach, preach or adhere to is the Sixth Commandment: Thou Shalt Not Kill. There is no exception called Y'all can. Friggin hypocrites.

Posted by: Liberty1st | Sep 5, 2013 8:13:45 PM

Federalist, you write "yes, let's disclose all the inculpatory information so that the defense can concoct a story beforehand." Have you ever tried a case?
Strange, that none of the vast majority of jurisdictions that provide the defense with the evidence have noticed any problem getting convictions. Even your buddy, Bill Otis, turns over the evidence. So, Federalist, stick to what you know and don't make silly remarks in the future.

Posted by: Dave from Texas | Sep 5, 2013 8:23:20 PM

Well, Dave from Texas, the ABA takes the position that forced disclosure should be the rule. My comment is directed at that. As for the reality that good defense attorneys "tailor" their defense to what the prosecution shows up front, well, I don't need to be a trial lawyer to know that. And I don't even need to be a lawyer to know that the truth-seeking function of a trial could be undermined by such a rule.

And of course, defense attorneys have never ever turned over witness lists to violent defendants thereby putting innocent witnesses at risk . . . .

And, of course, that the prosecution doesn't have trouble getting convictions isn't really all that relevant--in cases where a defense pre-look at the inculpatory evidence likely will allow the defense to have a better chance of successfully "tailoring" the evidence, prosecutors will simply give the defense a discount at the plea bargaining stage.

So, Dave from Texas, I presume that you have done the whole trial thing and know all this, but instead were just making an argument based on your ideological preferences.

Posted by: federalist | Sep 5, 2013 9:13:06 PM

"As for the reality that good defense attorneys "tailor" their defense to what the prosecution shows up front, well, I don't need to be a trial lawyer to know that. And I don't even need to be a lawyer to know that the truth-seeking function of a trial could be undermined by such a rule."

You've never tried to get inculpatory evidence up front in one of your tax cases?

Posted by: The Death Penalty Sucks. | Sep 5, 2013 10:36:11 PM

All -

I gave the wrong citation to the Virginia rule. The correct cite is Rule 3A:11.

Amy -

I intended to report the rule, not to take a position on whether it is fair. The rule applies in all criminal cases, capital or noncapital. The Virginia Supreme Court promulgated the rule and has long upheld it against challenges, so the Justices apparently think it is fair. The rule doesn't prevent prosecutors from voluntarily disclosing statements by their witnesses if they choose to do so. It just gives defendants no access to the information if the prosecutor wants to keep it to himself.

Posted by: arfarf | Sep 6, 2013 7:12:39 AM

Dave from Texas --

"Even your buddy, Bill Otis, turns over the evidence."

Just to clarify, I haven't turned over any evidence to anyone since the last century.

"...none of the vast majority of jurisdictions that provide the defense with the evidence have noticed any problem getting convictions."

If that's so, it doesn't make any difference to the outcome whether it gets turned over or not.

The whole thing is much ado about not very much. There's a reason 95% of federal criminal cases get resolved by guilty plea, that being that there is no even arguable doubt that the defendant did it. For the small percentage of cases the defendant prefers to take to trial, once again factual guilt is virtually never the issue. The issue is whether the jury is going to buy the fabricated mental state defense they're going to hear. And, mostly, they don't do that either.

Posted by: Bill Otis | Sep 6, 2013 9:33:28 AM

TDPS --

Whether federalist tries to get inculpatory evidence up front in his tax cases is irrelevant. This is far from the first time you've tried to make the question personal to a commenter rather than about the issue at hand.

Suppose federalist is an axe murderer. That would not rebut his point that that the truth-seeking purpose of a trial can be undermined by giving the other side a look at your evidence.

This is particularly true in criminal cases, where the defendant's cohort gang members are making ready, not merely to coordinate their stories, but assassinate the government's witnesses.

Are you planning to tell me that doesn't happen?

Posted by: Bill Otis | Sep 6, 2013 9:42:18 AM

Liberty1st --

Who gave you the idea that American secular law is or must be governed by Christian doctrine?

P.S. If you actually believe that Christian doctrine forbids killing in all circumstances, you're so appallingly ignorant that it would be hopeless to talk to you even if the country WERE governed by it.

Posted by: Bill Otis | Sep 6, 2013 9:49:27 AM

Peter from Virginia --

"Hard to believe that the great Virginians like Thomas Jefferson, Patrick Henry, and many others, who believed that trial by jury was the palladium of liberty, would believe trial by ambush in capital cases (or any case) was proper."

Gosh, then they and the other Framers must have written that into the Bill of Rights. Unfortunately, I've been unable to find it there. The Supreme Court has suffered from this same disability for 200 years or so.

Could you relieve us of our ignorance and cite Constitutional provision requiring the prosecution to hand over inculpatory evidence? The Framers you mention would be most appreciative.

Thanks!

Posted by: Bill Otis | Sep 6, 2013 9:56:41 AM

" Anyone convicted and in prison should be given a suicide pill to take when they wish. "
-- Posted by: Liberty1st | Sep 5, 2013 10:25:05 PM

" We all know that Virginia is choc full of fervent Christians. They preach when they teach in schools.
They swear by and on the Bible for any occasion. But one thing many of them fail to teach, preach or adhere to
is the Sixth Commandment: Thou Shalt Not Kill. There is no exception called Y'all can. Friggin hypocrites."
-- Posted by: Liberty1st | Sep 5, 2013 8:13:45 PM

Execution of murderers, bad, assisting all convicts to commit suicide, good?
Liberty 1st, consistency 2nd, biblical morality last?

Posted by: Adamakis | Sep 6, 2013 10:23:31 AM

Liberty 1st:
1. John 3:3, Titus 2:1, &: http://preachersfiles.com/are-you-an-accessory-to-sin/
2. The more you knock Virginia's Christians, the better they look.

Posted by: Adamakis | Sep 6, 2013 10:24:37 AM

Peter from Virginia

You may want to do some research on what jury trials were like in the colonial era and at the time of the bill of rights.

At that time: 1) the death penalty was available for non-homicides and was mandatory; 2) there was no right to discovery; 3) while you had the right to hire counsel, there was no right to appointed counsel; 4) only the state had peremptory challenges; 5) typically, one jury would here five or six cases in a day; and 6) rules of evidence were rather informal.

The systems that the ABA criticize (including Virginia's limited discovery rule) provide substantially more protection for capital defendants than the system adored by Thomas Jefferson, Patrick Henry, and James Madison. I don't know of many prosecutors who want to return to that system, and any defense attorney who wants to go back to that system would be certifiably insane.

Posted by: tmm | Sep 6, 2013 10:35:47 AM

According to Swain v. Alabama (citing a point I found in a quick search mentioned elsewhere too), "In all trials for felonies at common law, the defendant was allowed to challenge peremptorily 35 jurors, [Footnote 9] and the prosecutor originally had a right to challenge any number of jurors without cause."

Posted by: Joe | Sep 7, 2013 12:38:59 AM

Notice how Dave from Texas cut and ran. How pathetic. Yaps about someone else being silly, gets pwned and slinks off somewhere. Joe, TDPS, this has to embarrass your side. If you guys are so enlightened, why do I always win the arguments in here?

TDPS, there is a difference between using the rules of the game to one's advantage (within ethical limits) and pointing out how the rules can lead to socially undesirable results.

Posted by: federalist | Sep 7, 2013 11:26:50 AM

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