Written in blood, stamped in unfairness... Virginia's Infamous 21-Day Rule
By Barbara Jean McAtlin
Virginia Supreme Court Rule 1.1: Finality of Judgments, Orders and Decrees --
The "21-Day Rule" (Update available)
All final judgments, orders and decrees, irrespective of court, shall
remain under the control of the trial court and subject to be modified,
vacated, or suspended, for twenty-one days after the date of entry, and no
longer. Notwithstanding the finality of the judgment, in a criminal case the
trial court may postpone execution of the sentence in order to give the
accused an opportunity to apply for a writ of error and supersedes such
postponement, however, shall not extend the time limits hereinafter
prescribed for applying for a writ of error. The date of entry of any final
judgment, order or decree shall be the date the judgment, order or decree is
signed by the judge.
When it comes to crime, the Commonwealth of Virginia can be said to be tough
on criminals -- especially and unfairly tough. The Commonwealth is so certain
that its criminal justice system works correctly the first time that the
Virginia Supreme Court has all but closed the door on the right of those
convicted to prove their innocence after their conviction. Although other
states have also imposed limits on how much time may pass before a convicted
person is allowed to introduce new evidence, none of those states stands
behind their rules as steadfastly as Virginia, especially in death penalty
In the writing of the 21-day rule, Virginia, in staid support of its judicial
system, effectively blocked any and all avenues for the state's courts to
consider any evidence of innocence that surfaces more than 21-days after a
defendant's final sentencing in Circuit Court.
Even a defendant who can show strong enough evidence of innocence for a
governor to commute his death sentence to a life sentence is NOT entitled to
a new trial. Presently, four men -- Joseph "Joe" Giarratano (Joe's story is
in this issue), Earl Washington (who has since been pardoned by
Virginia Governor Gilmore), Herbert Bassette and Joseph Payne -- have
had their death sentences commuted to life sentences because a Virginia
governor had serious reservations about their guilt. Even with enough
evidence of their innocence to convince a governor to free them from death
row (and recommend a new trial in Joe's case), all four men remain in prison
serving life sentences because the 21-day rule has effectively blocked any
hope for a new trial.
Serious questions should be asked about the fairness of the 21-day rule at
this point. How many defendants sentenced to death have gone to the
executioner's gurney because the recently discovered evidence of their
innocence failed to convince a governor? How many times has a Virginia
governor found non-persuasive evidence persuasive enough? How many times
has inconsistent DNA evidence, witness recantation or evidence pointing to
another person as the true criminal been overlooked or swept under the 21-day
rule rug? How many times has a Virginia governor chosen to ignore this
evidence? How many innocents have been murdered by the Commonwealth of
Virginia because the Commonwealth put so much faith in its system?
Legal killings as a result of Virginia's 21-day Rule:
Carl Chichester: legally murdered by Virginia in 1999 despite conflicting
eyewitness accounts. An eyewitness who said he had seen Chichester's
codefendant commit the murder that Chichester was executed for was never
called to testify. The witness who said he saw Chichester commit the murder
Tommy Strickler: legally murdered by the Commonwealth of Virginia in 1999
despite evidence that a key prosecution witness lied on the stand at his
Joseph O'Dell: legally murdered by the Commonwealth of Virginia in 1997
despite a U.S. District judge's opinion that DNA test results from a
bloodstain on O'Dell's jacket, said to have matched the DNA of his victim,
Michael Satcher: legally murdered by Virginia in 1997 despite the fact that a
later, more refined method of DNA testing directly conflicted with an earlier
DNA test performed by the Commonwealth. The later test found that Satcher's
DNA could not have matched any of the DNA evidence from the crime scene.
Ronald Bennett: legally murdered by Virginia in 1996 after Bennett's ex-wife
recanted her testimony against him and implicated herself and his cousin.
Dennis Stockton: legally murdered by Virginia in 1995 despite the fact that
the prosecution's key witness admitted to a reporter that he had lied on the
Roger Coleman: legally murdered by Virginia in 1992 despite substantial
evidence that developed after 21-days from his date with the Circuit Court
that someone besides Coleman was responsible for the rape and murder of his
With the recent questioning of the fairness of the death penalty in the
United States, the Virginia State Supreme Court's unwillingness to thoroughly
scrutinize all the claims of innocence in death penalty cases should seem
vastly unfair to even the most noncommittal citizen. When combined with the
federal doctrines of procedural default, retroactivity and the Anti-Terrorism
and Effective Death Penalty Act of 1996, Virginia's 21-day Rule effectively
blocks any and all federal recourse that normally would be available to any
defendant condemned to die. It is obvious that this system will result in
scores of unfair trials in the future as it has in the past -- trials not
allowed to be corrected legally, even at the risk of executing an innocent
person. As long as the law permits these unfair trials to persevere, the
Commonwealth of Virginia cannot possibly accurately or justly choose between
those who deserve to die and those who do not.
Even though the Constitution of the United States specifies the use of only
the most minimal standards of fairness at the state level, the moral duty of
the Commonwealth of Virginia to its citizens is to see that justice is fairly
administered. All too often the Commonwealth refuses to thoroughly review
those cases where even that minimal standard of fairness is in question --
even in matters of life and death.
Unequal, Unfair and Irreversible: The Death Penalty in Virginia
American Civil Liberties Union of Virginia
Virginia State Conference, NAACP
Virginians for Alternatives to the Death Penalty
Office of Justice and Peace, Catholic Diocese of Richmond
Virginia College of Criminal Defense Attorneys
Update on Virginia's 21-Day Rule
Death row retrials may become exempt from unfair 21-day rule
By Barbara Jean McAtlin
On October 13, 2000, the Virginia Supreme Court made a surprise move toward
eliminating the Commonwealth's 21-day rule in capital punishment cases.
Virginia's infamous 21-Day Rule -- the shortest in the nation -- has brought
national criticism of the Commonwealth's capital punishment system after the
U.S. Supreme Court found serious errors in three of its five death row cases
over a 14-month period. Many staunch conservatives as well as capital
punishment opponents say that Virginia rushes condemned prisoners to the
execution chamber without ensuring that all their evidence and appeals have
been properly heard.
As the current law stands, Virginia's prisoners have a scant 21 days after
sentencing to request a new trial based on new, previously undiscovered
information, even if that new information will exonerate them. With the
decision to look into the effects of the 21-Day Rule, the normally
conservative Virginia Supreme Court agreed that there should be no time limit
in capital punishment cases. The Court also gave the public a month to
comment before it changes the rule.
The Virginia Supreme Court has also begun taking a good look at the
Commonwealth's existing capital cases. It has sent two cases back to the
lower courts for new sentencing hearings and has ordered a new trial for a
For quite some time, the 21-Day Rule has been under fire from lawyers who
handle high-profile cases such as that of Derek Barnabei, who was recently
executed, and Earl Washington Jr., who was recently pardoned by Governor
Gilmore. A bill that would have changed the 21-day deadline to a three-year
deadline passed in the Virginia House of Delegates earlier this year, but
died in the Senate.
The Virginia Supreme Court Justices can enact the new rule on their own since
the 21-Day Rule is a rule of that Court. Even so, the court can still modify
its proposal after hearing comments from the public, or the Virginia
Legislature could modify it further or overrule it altogether when its
session begins in 2001.
Those wanting to change the 21-Day Ruler have pointed out that DNA testing
has exonerated nine people on death row in the United States.
"I'm very pleased by this development," Republican State Senator William C.
Mims said, "The legitimacy of the death penalty is determined by our
confidence that we are not making mistakes. With this [proposed] rule, the
public will know that if a mistake has been made at the trial level, it will
be corrected by the Virginia Supreme Court."
Although Virginia Chief Justice Harry L. Carrico declined to comment,
prosecutors have said that the 21-Day Rule has been a necessary guard against
frivolous claims and prevents death row inmates from dragging out the appeals
process. They also said they do not have a problem with the general
proposition that after-discovered evidence should be considered, but do have
a problem with retrying an entire case.
Defense attorneys, who were pleasantly surprised by the ruling, are
enthusiastic about the rule change. Richmond defense attorney Gerald Zerkin
said he thinks the Court is to be applauded for taking this step and that if
the revised rule had been enacted in 1994, it would have resulted in a new
trial for Earl Washington, Jr. then. Instead, Washington had to wait six more
years for additional DNA testing and a gubernatorial pardon.
John Youngs, an attorney in Arlington, told The Washington Post that he is
cautiously optimistic about the changing of the rule and that there is a wave
going through the country with the moratorium in Illinois and actual
innocence cases abound.
Under the new rule, the Virginia Supreme Court would hear petitions from
defendants who can show a "substantial likelihood of actual innocence." The
legislative proposal by Democratic Delegate James F. Almand requires "clear
and convincing evidence" before a Court will hear a case.
George Rutherglen, a University of Virginia law professor, said that the
proposed standard is still pretty strict as it is still a substantial
likelihood of innocence, not a substantial probability of reasonable
doubt. Even under the new rule, the burden of proof of innocence would still
on the inmate.
Spokesmen for Governor James S. Gilmore III and Attorney General Mark L.
Earley told The Post that their offices are studying the proposed rule and
would not comment. Representatives of the Commonwealth's Attorneys
Association and the State Crime Commission said each is working on its own
Virginia governors have pardoned five men -- only one of those was convicted
of capital murder -- after DNA testing suggested they had been wrongfully
convicted. None of those men discovered the key evidence in the case until
well after the 21-day deadline had passed.
Delegate Almand, while noting that the Supreme Court's proposal deals only
with death penalty cases, said, "this particular problem is broader than
that. What about rape cases and robbery cases?"
The Washington Post
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