Virginia Death Penalty and Appellate Defense

On Sunday, the Richmond Times Dispatch published a story about the “certainty” of the death penalty in Virginia. Although Texas leads the nation in number of executions, apparently Virginia has the highest ratio of condemned prisoners that have been put to death. Three out of four prisoners in Virginia have been put to death. This is compared to Texas, which according to the same study, carries out less than half its death sentences. Also, in a study published in 2000, researchers at Columbia Law found that appeals courts in Virginia were not finding many trial errors because “only 18 percent of Virginia death cases were reversed by appeals courts, while nationally it was 68 percent.”

Experts interviewed posited many reasons for the stark difference, including the fact that the statute is very tightly written, requiring extensive proof to surmount the death penalty bar and that procedural rules limit the review of death cases by appeals courts. However, nowhere in the article was there any mention of ample criminal defense at the appellate level. This is more of an issue in non-capital cases, but budget cuts and shortfalls have affected the capital defense arena as well. In order for appellate courts to find error, the appeal has to be perfected and then beyond that the error has to be presented to the appellate courts in a way that makes the hearing of the case and eventual reversal irresistible. Although it is possible that the state of indigent criminal appellate defense in  capital cases is different, in June of 2010, Virginia’s Indigent Defense Commission closed its appellate defender office due to budget cuts and all of the various public defender offices became responsible for their own appeals. Legal Blogger L. Steven Emmert wrote a post about it at the time, noting that appeals lawyers are familiar with the procedural rules and may not have the same issues procedurally with making sure an appeal is perfected and effective. There are four Capital Defender offices in Virginia and they were also understaffed in 2009, due to budget shortfalls.

According to Virginia Attorney General Ken Cuccinelli, Virginia’s death penalty is “one of the most demanding capital-murder statutes in the country.” This places a substantial burden on prosecutors in order to prove the elements which merit a death sentence. Considering it in the reverse, due to the high standard of proof, I think it is possible that criminal appellate lawyers have a higher burden to craft arguments or marshal facts in order to overturn a death sentence. If Virginians would like to see more accountability in terms of the imposition of the death penalty, ample appellate defense resources are integral to any plans moving forward.