The American Bar Association's Death Penalty Due Process Review Project released a report on the death penalty in Virginia on Thursday, September 5th, 2013.  The full text of the report can be found here.  This report is the 11th of 12 that the Project is sponsoring, with the final report on Texas expected any time. The report's purpose is to assess fairness and accuracy in Virginia's death penalty system.  To accomplish this, the Virginia Death Penalty Assessment Team researched 12 issues that the ABA has identified as crucial to an assessment of a state's capital punishment system.  The biographies of the Virginia Assessment Team on the Death Penalty can be found here.  The Report includes a  chapter on each of the following issues:

(1) An overview of the Virginia death penalty;
(2) Law enforcement identification and interrogation procedures;
(3) Collection, preservation and testing of DNA and other evidence;
(4) Medical examiner offices  and crime laboratories;
(5) Prosecution;
(6) Defense services;
(7) The direct appeal process and proportionality review;
(8) State habeas corpus proceedings;
(9) Clemency;
(10) Jury instructions;
(11) Judicial independence;
(12) Treatment of racial and ethnic minorities; and
(13) Mental retardation and mental illness.

A summary of each chapter can be found here.  The highlights of the report can be found here.

The report noted several reforms in Virginia that have increased fairness and accuracy in capital cases.  One such reform is the Virginia Department of Criminal Justice Services' Model Policy on Eyewitness Identification.  The Model Policy incorporates advancements in social scientific research.  While its adoption is not required, many of the policies found in the Model Policy have been adopted by law enforcement agencies throughout Virginia.

Additionally, the report notes improvements in forensic investigations in capital cases.  It points out that all four of the crime laboratories that comprise the Virginia Department of Forensic Science have become voluntarily accredited through the American Society of Crime Laboratory Directors/Laboratory Accreditation Board International Accreditation Program.  Medical examiner offices have also obtained voluntary accreditation through the National Association of Medical Examiners and Virginia's Chief Medical Examiner is a licensed forensic pathologist.  Two oversight commissions, the Virginia Scientific Advisory Committee and the Virginia Forensic Science Board, have been created to ensure validity, reliability and timely analysis of forensic evidence in the Commonwealth's crime labs.

Finally, the report notes the creation of Regional Capital Defender offices, which provides qualified represention of capital defendants at trial. It states that these offices, which  include staff trained in providing mitigation and investigative support, along with the state-funded Virginia Capital Representation Resource Center and oversight by the Virginia Indigent Defense Commission, have significantly improved the quality of representation available to indigent capital defendants. 

However, the report notes several facets of Virginia's capital punishment system that require improvement..  Following are those found to be most in need of reform as well as the recommendations of the Assessment Team. 

First, focusing on pretrial matters, the assessment team expresses concern about the lack of double blind eyewitness identification. The suggestion here is that Virginia should require law enforcement to adopt the Virginia Department of Criminal Justice Services' Model Policy on Eyewitness Identification mentioned above in its entirety. 

The report also notes that law enforcement agencies are not required to record interrogations and interviews in the Commonwealth and most do not.  It recommends that recording of custodial interrogations should be mandated for capital cases. Such recordation should also include the reading of Miranda rights, the Miranda waiver, all questioning by law enforcement, and the suspect's final statement.  The team recognizes exceptions for situations such as sudden utterance, waiver and good faith, but suggests that defendants must have an adequate remedy for noncompliance with recordation requirements.

The report criticizes the lack of discovery in Virginia capital cases.  For example, if the Commonwealth's discovery rules are strictly followed verbatim, a capital defendant may not know the identities of witnesses who will testify against him or her until they appear at trial.  Despite prosecutors' efforts to act in good faith, such a system inevitably leads to Brady violations. To remedy this, the report recommends mandatory disclosure of all witnesses and any prior statements they may have made before trial.  Further, it is recommended that law enforcement officials are trained to avoid Brady violations.

The report notes  an important ambiguity in Virginia's capital sentencing scheme.  Although Virginia law allows a Commonwealth's Attorney broad discretion in deciding whether to pursue death it would arguably allow a court to impose capital punishment where the prosecutor has not sought it.   The report therefore recommends statutory change to make clear that the prosecutor has the power to withdraw the death penalty at any time. 

Concerning post-trial issues, the report expresses concerns with biological evidence. Virginia requires automatic preservation of biological evidence in capital cases. However, there is no requirement to preserve biological evidence for the duration of incarceration in non-capital felony cases.  Often, these prior convictions are significant in establishing defendants' death eligibility.  Additionally, the team found access to post-conviction testing of biological evidence to be lacking.  Virginia law requires an inmate to show by "clear and convincing evidence" that results of DNA testing will prove his or her innocence.  Many states use a lower "reasonable probability" standard for testing such evidence.  Virginia law also does not allow for retesting of evidence used to prove aggravating factors that are required for the death penalty. 

While the report was positive about the establishment of Regional Capital Defenders' offices, it also notes a lack of a sufficient counterpart to handle the appeals process.  Often, the report concluded, defense counsel is lacking in the time or skill necessary to successfully navigate the complications of a capital appeal.  Recommendations include the creation of a position for an appellate defender in the Regional Capital Defender Office in Richmond.

The ABA also found deficiencies in state habeas litigation in Virginia.  The  filing deadlines for such petitions are especially tight, and factual disputes are often resolved based on affidavits rather than evidentiary hearings.  Additionally, courts in the Commonwealth are not approving funding for guilt/innocence or mitigation, investigations or expert assistance.. Recommendations regarding this issue include a relaxation of  time constraints, permitting the scheduling of an execution date only after all remedies are exhausted, and providing adequate funding.

Because studies have shown that Virginia capital juries are often confused by their instructions, the team suggests that Virginia clarify such instructions, including the principle that jurors are never required to return a death sentence, and a simple explanation of the law governing consideration of mitigating evidence.

The ABA also takes issue with the standards surrounding mental retardation and mental illness in Virginia, and calls for bringing Virginia law into conformity with the definition of mental retardation promulgated by the   American Association on Intellectual and Developmental Disabilities.  It further recommends that Virginia should  amend its statute to require the trial court to make a pretrial determination of whether a capital defendant is mentally retarded, and urges additional categorical exemptions from the death penalty for the severely mentally ill. 

Finally, the report points out severe shortcomings in data collection surrounding the death penalty in Virginia.  It cites a 2002 report by the Joint Legislative Audit and Review Commission of the Virginia General Assembly that found deficiencies respecting capital-case data collection, and  that the Commonwealth designate an appropriate entity to collect, analyze and make publicly available salient facts on all death-eligible cases in Virginia, regardless of the outcome of the case. This data would assist the Virginia Supreme Court in proportionality review, litigants presenting proportionality claims, and prosecutors in making charging decisions.