Group says today’s Crime Commission report supports less restrictive law

The ACLU of Virginia today announced that it will ask legislators to amend Virginia’s new law allowing some convicted felons to seek court review of their cases when unknown or unavailable non-biological evidence of innocence is discovered. The civil liberties group wants the law relaxed to make sure that innocent persons who are serving prison sentences--and in some instances death sentences-- will have a chance to have their cases heard.
Fearing that the courts would be flooded with specious claims of innocence, lawmakers passed a highly restrictive version of the law earlier this year. The new law allows courts to review newly discovered evidence of innocence that comes to light after trial, but prevents persons who pled guilty from using the process and limits its use to one time for each convicted person.
The law also requires that the new evidence was not known to the convicted person or hiss attorney at the time of the trial. Finally, in order for the reviewing court to overturn a conviction, it must find that the new evidence presents a “clear and convincing” case of innocence.
Information released at today’s meeting of the Virginia State Crime Commission indicates that the law is so restrictive that it is hardly being used at all. In a system incarcerating more than 30,000 prisoners, only 16 attempted to use the process over the last six months.
“Lawmakers were on the right track when they passed the new law, but now they need to make sure it is more than window dressing,” said ACLU of Virginia executive director Kent Willis. “The writ of innocence law has a real purpose--to get wrongly convicted people out of prison-- but it will not serve that purpose if wrongly convicted people don’t qualify to use it.”
The ACLU wants lawmakers to use the 2005 General Assembly session to remove the law’s most onerous restrictions. Delegate Robert G. Marshall, a Republican from Prince William County, has pre-filed a bill to accomplish that, and the ACLU will support it.
“The figures released today show that lawmakers have nothing to fear from making the law more accessible to convicted persons,” added ACLU of Virginia legislative director Aimee Perron.
For many years, Virginia’s notorious 21-Day Rule prevented courts from reviewing newly discovered evidence of innocence, no matter how compelling, if the evidence came to light more than 21 days after conviction. Many experts considered it to be the most unfair and restrictive rule on evidence review in the nation. Only the Governor had the power to reverse a conviction or commute a sentence decision based on new evidence.
Several years ago, legislators passed a new law creating a process by which courts could review biological evidence of innocence, opening the door to the use of new DNA testing techniques on old evidence. That law was at least partially the result of DNA testing of evidence in the case of Earl Washington, who was convicted of rape and murder. On death row when DNA tests concluded that he was not the killer, Washington was later released from prison by then Governor James Gilmore.
In the 2004 legislative session, lawmakers passed the new law allowing courts to review newly discovered evidence of innocence that is not biological in nature. The ACLU of Virginia and other rights groups supported the legislative breakthrough, but were critical of some elements of the bill.
For facts sheets providing more details on the ACLU’s position, contact the ACLU of Virginia office at 804-644-8022.

ACLU of Virginia Contacts: Kent Willis, Executive Director Aimee Perron, Legal Director 804-644-8022

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