Richmond Times-Dispatch

Groups call for halt to executions
They say Virginia's system is flawed, but Kilgore's office says statute is nation's best
Thursday, November 13, 2003

A coalition of anti-death-penalty groups yesterday called for a moratorium on capital punishment in Virginia until changes can make it fairer for the accused.

The organizations contend that problems with Virginia's system, from misconduct by prosecutors to limits on appeals, have led to wrongful death sentences and possibly the execution of innocent people.

Their call comes as the state's capital punishment system is under national and international scrutiny in the trials of sniper suspects John Allen Muhammad and Lee Boyd Malvo.

Authorities had their pick of three forums to try Malvo and Muhammad but chose Virginia, which executes juvenile offenders and is the most efficient state in the country at executing those sentenced to death.

"In Virginia . . . if you are sentenced to death, you will die," said Steven D. Benjamin, a Richmond criminal-defense lawyer who wrote the foreword to the American Civil Liberties Union study released yesterday that calls for the moratorium. The study is similar to an ACLU study three years ago.

"This is a long-term effort," said Kent Willis, executive director of the ACLU of Virginia. "The pressure needs to be kept on the Virginia General Assembly."

Rachel King, of the ACLU's Capital Punishment Project, said that in Virginia, "support for capital punishment is based on the belief that it's applied rationally and fairly, and is reserved for the worst of the worst offenders.

"But we found example after example where this was simply not the case. No one can assure that the people on death row are actually guilty, and if they are guilty, that they should have been sentenced to death."

John Whitehead, of The Rutherford Institute, a legal-advocacy organization based in Charlottesville, said that "human life is too sacred to be taken away in a system that is as flawed as Virginia's." Whitehead said an innocent person may have already been executed and that "there are insufficient safeguards to ensure that the innocent are not executed in the future."

The study named executed killers Roger Keith Coleman and Joseph O'Dell as two men who were possibly innocent. A request for new DNA testing in the Coleman case - though he was executed more than a decade ago - is pending before Gov. Mark R. Warner.

Six other men sentenced to death have had their death sentences commuted to prison terms, usually life without parole. One of them, Earl Washington Jr., was eventually pardoned after DNA testing proved his innocence.

Jack Payden-Travers, director of Virginians for Alternatives to the Death Penalty, said that "Earl Washington Jr. is alive today not because the system works, but because Virginia was forced by DNA evidence to release him."

Tim Murtaugh, spokesman for Virginia Attorney General Jerry W. Kilgore, strongly disagreed with the study's findings and recommendations. "Virginia's death penalty statute is tightly drawn and the best in the nation," he said.

"It's been tested and retested at every judicial level, including the U.S. Supreme Court, and it is sound. There are numerous judicial safeguards, and the governor has broad powers to intervene" should there be a miscarriage of justice, Murtaugh said.

According to Murtaugh, "the continued discussion of issues like this only really serves to cause pain to the families of murder victims."

He said the attorney general's office flatly rejects the idea that either Coleman or O'Dell was innocent.

Rush Wickes, spokesman for Virginians United Against Crime, a victim-advocacy group, complained that the ACLU study released yesterday made the same allegations as the one three years ago.

The 2000 ACLU study found fault with the quality of lawyers appointed to represent indigent defendants facing the death penalty; the wide discretion given prosecutors to seek the death penalty; the role of race; and the review of Virginia cases by the Virginia Supreme Court and federal courts.

The new study revisits those areas but also looks at the execution of the mentally retarded; those who were juveniles when they committed capital murder; misconduct by prosecutors; and the danger of executing someone who was wrongfully convicted.

Benjamin said prosecutors who break the rules "get away with it. They are not sanctioned, but the verdicts that they obtain, the death sentences that they obtain, are rarely, if ever, reversed. The system in Virginia permits prosecutors to break the law."

The study, however, cites only three cases of alleged prosecutorial misconduct in capital murder cases.Defense lawyers came in for criticism, too. Lawyers who represented clients who wound up on death row were six times more likely to be disciplined than other lawyers.

Michael Arif, one of two lawyers appointed to represent Lee Boyd Malvo, was publicly reprimanded by the Virginia State Bar in 1996 for his handling of a civil case.

A major focus of both studies was the Virginia Supreme Court and the 4th U.S. Circuit Court of Appeals, which have rarely reversed Virginia death cases, even when there was new evidence of innocence or there had been a major error in the trial.

A national study released in 2000 found that while appeals courts found fault with two out of three death cases across the U.S. from 1976 to 1995, the rate was only 11 percent for cases from Virginia, the lowest in the country.

There are errors in Virginia cases, but strict procedural rules often keep appeals courts from considering the errors, or the appeals courts rule the errors had no effect on the cases.

Contact Frank Green at (804) 649-6340 or

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