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Death Penalty Assessment Team Releases Study Results

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Legal experts are calling on Virginia lawmakers to make several changes in state law to make sure the commonwealth's death penalty system is more fair.

The Virginia Death Penalty Assessment Team released the results of its two-year study in Richmond Thursdaymorning.

"The principal theme, if you will, is one of transparency," University of Richmond Law School Professor John Douglass said.

The group's new report calls for better efforts by law enforcement, attorneys, and the courts to reduce the risk of wrongful convictions and executions in Virginia.

"We've seen in several recent cases in Virginia capital convictions that have been reversed because of the failure to disclose exculpatory information to defendants," Douglass said.

That was the case for Michael Hash, released from prison in 2012. A Culpeper judge overturned his life sentence after prosecutors were found to have withheld evidence crucial to Hash's defense.

Richmond Commonwealth's Attorney Michael Herring has prosecuted capital cases in the past, and says the team's report helps move the conversation about the death penalty in Virginia in the right direction.

"It's balanced, and I think it's informative," Herring said.

He says expanding pretrial discovery requirements in death penalty cases would do more than aid defendants, it would help prosecutors avoid the possibility of having the case retried.

"I dare to say all prosecutors in Virginia want the same thing, which is a fair trial and they want to try the case once," he said. "At the end of the day, I'd rather err on the side of tendering the information than withhold it and have to retry the case."

The next step will come down to convincing lawmakers and other state leaders the suggested reforms are worthwhile.

"Nothing's perfect, and I hope that legislators and lawyers and judges alike receive the report in the vein that it's intended - recommendations to help and improve," Herring said.


Alliance Group
Press Release

RICHMOND – The Virginia Death Penalty Assessment Team today issued its report detailing findings and recommendations on the administration of capital punishment in the Commonwealth.  This report is the product of a two-year effort by the Virginia-based Assessment Team, whose members include experts with a wealth of individual and collective experience, including a former trial judge, state legislator, former and current prosecutors, defense attorneys and academics (please see below for a list of Team members).  The Assessment Team, which focused its attention on the operation of Virginia's death penalty laws and processes, was sponsored by the American Bar Association's Death Penalty Due Process Review Project (the "Project").  Over the last decade, the Project has worked with teams in 10 other states to conduct comprehensive examinations of their death penalty systems.

"All of our Team members shared the same goal in preparing this report," said John Douglass, Team Chair and Dean Emeritus at the University of Richmond School of Law.  "Namely, we all want a system in Virginia that is both fair and reduces the risk—to the extent possible–of wrongful conviction or execution.  As long as Virginia implements the death penalty, everyone in the legal community, from judges to prosecutors to defense attorneys, has a vested interest in a system where such cases are administered in a fair and impartial manner, in accordance with due process." 

The Virginia report examined 12 aspects of death penalty administration in the Commonwealth from arrest to execution.  The purpose of the report is to provide information on how Virginia's death penalty system is functioning in design and practice.  In doing so, the report highlights some recent improvements in the current system.  However, the Team also identified a number of areas of concern, all of which are critical to ensuring fundamental fairness in death penalty cases.  Some of these areas include:

  • Law enforcement implementation of best practices to reduce wrongful convictions;
  • Better preservation of biological evidence and access to testing for those under a death sentence;
  • Expanded discovery in death penalty cases;
  • Improved comprehension of instructions for jurors who serve on death penalty cases;
  • Better processes to exclude those with mental retardation and severe mental illness from the death penalty; and
  • Relaxing of strict rules placed on appellate review of death penalty cases.

The Virginia Team of authors hopes that their findings and recommendations will inform policy makers, as well as the general public, on some of the challenges with capital punishment laws and processes that affect the overall integrity of the system, including its fundamental fairness and accuracy.

An electronic copy of the report is available at www.ambar.org/virginia.  

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