pat

When writing about legal subjects, it's really important to figure out what the current state of the law is because it changes. Prompted by a post over at the Mad Monk, I am writing a series about the legal issue closest to my heart, capital punishment.

In the process, I discovered, after much searching (and refusing to stop until I got an answer as to the state of the law now -- and not just from the state code data bases, those search engines are terrible (and Texas doesn't even vouch for the accuracy of theirs! They say you use it at your own risk!) -- a really good bit of news.

In 2004, Virginia repealed its notorious 21-day rule. This was the rule that required that all evidence of innocence be submitted within twenty-one days after the final recording of judgment against a defendant. Reading their codes, they now have systems in place that allow for what appear to be no time limits on introduction on biological evidence. (They also provide for looser time limits in regard to non-biological evidence.)

I cannot tell you how happy this makes me. The 21-day rule was an abomination, a barbarism. It is very good that it is gone. I don't know if its repeal had anything to do with the fact that Virginia did not execute anyone in 2005 (although they have executed 3 people thus far in 2006).

Virginia is often lumped in with Texas in terms of the "states that kill the most people." This is unfair. Virginia at 97 execution since 1976 is much closer to Oklahoma with 88 than it is to Texas with 372. Actually, if you look in terms of executions per capita, the winner is Oklahoma, with Virginia coming fourth (behind Texas and Missouri). (When adjusted for population, Florida -- the other state listed as being part of the unholy trinity leading the march to the death chamber -- falls to fourteenth.)

I realize this is damning with faint praise. Gee, you don't kill as many people as the other states do is not exactly a ringing endorsement. However, fair is fair -- and the passage of the twenty-one day rule is a step in the right direction.

Three weeks and one day ago was August 11, 2005. Suppose on that day you were fired from your job, after an investigation showed that you had stolen your employer's property.

Suppose, just suppose, that today you find out that there is independent evidence showing that the theft was committed by a coworker. You present it to your boss and he or she says...

"Too bad. It's too late. We don't care if you can prove you're innocent."

Suppose, just suppose, that your life was in the balance, not your job.

You would then be living in Virginia.

The penal code of the state of Virginia states that new evidence may not be introduced after twenty-one days after the recording of judgment against the defendant. Twenty-one days. Three weeks.

It doesn't matter what the evidence is: it could be a confession by another person, a witness recanting, evidence withheld by the police, a new forensic test which exonerates you, anything. It doesn't matter. And any state or federal habeas corpus petitions you file have to be based on constitutional claims, such as violations of the fourth amendment or ineffective assistance of counsel. New evidence of innocence is not admissable, or, in the words of William Rehnquist, "a claim of actual innocence is not in itself a constitutional claim."

Texas is only slightly less draconian: you get ninety days. Ninety days in which to discover all possible evidence that might not have been brought forth at trial which could prove you are innocent. In Florida, you get all of six months. (Except for DNA evidence: in Florida you have two years, to submit DNA evidence, provided you did not plead guilty. So, if your attorney talks you into pleading guilty, but the DNA evidence exonerates you, you're totally screwed.)

And it doesn't matter why the deadline was missed, either: your attorney screws up his calendaring? Too bad. Doesn't matter. You're as good as dead. And in Virginia, until recently, there was no requirement that the court preserve evidence after a conviction -- so they can destroy that pair of bloodstained scissors that was presented at the trial, to free up space in the evidence room . At least until the Supreme Court stayed the execution of Robin Lovitt in July, 2005. The Court stayed the execution without comment, so we will have to see what happens next.

And it's not just the Big Three that have such restrictions: fifteen states have shorter time limits than Florida. Eighteen more have limits between 1 and 3 years. Only nine have no limits on the introduction of new evidence. All of this matters because at this point the average time between conviction and relase for prisoners on death row is seven years.

There is a grim irony in all of this. Law and order types for years have been screaming about defendants walking free on "technicalities," such as gasp! violations of a defendant's Constitutional rights. They are perfectly willing to resort to technicalities not based on anything but a need for efficiency and "finality of judgment" and "closure" to kill people.

Because, of course, executing people who might be killers is so much more important than sparing people who might be innocent.

I am working on a possible series of posts about capital punishment. While reviewing posts I had already made on the subject, I found this post on Bell v. Thompson. The decision came down when I was on vacation, and I missed it.

The Supreme Court ruled in favor of the state. Which means a man who was schizophrenic at the time he committed the first crime, who had incompetent counsel, who an appeals court said should have a new trial, will be executed because the Circuit Court's decision that he should be given a new trial came too late and was technically insufficient.

This is not justice. This is barbarism.

The Schiavo case is on everyone's mind. All of us are thinking about Advanced Directives. But I've got something else on my mind...

pecunium has had a couple of posts regarding Eugene Volohk's position that not only is torture is acceptable, but murderers should be made to suffer as much as possible before they are executed -- preferably at the hands of their victims' families. That has made me think.

I am making another sort of advance directive. It is my wish, should I be brutally murdered, that my killer not be executed. I would not want the state to take vengeance in my name. As far as I am concerned, that would dishonor me as much as the murderer did, and would be a repudiation of my ideals.

I realize that this is not binding on anyone. But I would ask people who care about me, if you cannot bring yourself to urge mercy, at least refrain from calling for blood. For my sake, and in my memory, if that were to happen.