RICHMOND, Va. — Virginia should make several changes to its death penalty laws and procedures to ensure fairness and guard against executing an innocent person, a report issued Thursday by a panel of legal experts says.
The two-year study by an eight-member American Bar Association panel praises the state for adopting important reforms in recent years but says improvements are still needed throughout the entire process, from the police investigation through the trial and subsequent appeals.
“If we’re going to have a death penalty, I think everyone would agree we have to get it right,” said former Attorney General Mark L. Earley, who served on the Virginia Death Penalty Assessment Team.
The study is part of the ABA’s review of the death penalty in a dozen states. Some of the 10 previous state reports recommended a moratorium on capital punishment until problems are corrected, but the panel did not propose such action in Virginia, which has executed 110 people since the death penalty was reinstated in 1976 — second only to Texas, which has executed 503.
“We didn’t feel that was our charge,” said John Douglass, dean emeritus of the University of Richmond Law School and chairman of the panel. He said the group felt its best chance for improving the system was making “politically and judicially attainable” recommendations.
Those recommendations begin with police procedures. The Virginia Department of Criminal Justice Services adopted a model policy for conducting police lineups in 2011, but few law enforcement agencies have voluntarily adopted it. The report suggested the policy should be made mandatory.
It also said police should be required to electronically record all of their interrogations of suspects and suspects’ confessions. The Northwestern University School of Law Center on Wrongful Convictions found that only nine Virginia agencies record a majority of their interrogations.
Virginia is more restrictive than other states in allowing capital murder defendants access to evidence against them, the report says. It recommends that the Virginia Supreme Court modify discovery rules, including by requiring prosecutors to disclose the identity and any prior statements of witnesses who will testify.
One of the biggest concerns, the report says, is a state appeals process that “emphasizes finality of convictions and death sentences over fairness.” It recommends giving Virginia inmates more time to file state petitions and providing funding for defense attorneys to hire investigators and other experts. It also suggests starting the post-conviction review in the trial court rather than the Virginia Supreme Court, which has granted evidentiary hearings in only five cases since 1995.
Among the other recommendations:
— Require long-term preservation of DNA evidence and allow the defendant more opportunity for testing samples if there is evidence previous testing was unreliable.
— Create a position for an appellate specialist within the public capital defender’s office.
— Revise jury instructions to make it clear that jurors never have to return a death verdict and to clarify common misconceptions about mitigating evidence.
— Update the state’s definition of mental disabilities, allow a pretrial determination of whether a defendant is mentally disabled and ineligible for the death penalty, and prohibit the execution of a defendant who was suffering from a severe mental illness at the time of the offense.
Among the recent changes lauded by the panel are the accreditation of the state’s crime labs and medical examiner offices and establishment of regional capital defender offices.
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