- The Washington Times - Tuesday, December 11, 2001

RICHMOND Prosecutors are not seeking the death penalty evenly in capital cases across Virginia, with those in cities less likely to do so than those in suburban and rural areas, the General Assembly's investigative arm said yesterday.
Procedural restrictions at the appellate level also have forced state and federal courts to affirm convictions for death-row inmates who may not have received fair trials, according to a report by the Joint Legislative Audit and Review Commission (JLARC).
The discretion afforded prosecutors in handling cases, "which is so needed to ensure that the system is operated with a sense of proportion, will generate outcomes that cannot be easily reconciled on the grounds of fairness," the report states.
The one-year review of Virginia's capital punishment system, however, also found that the race of the defendants and the victims does not influence prosecutors' decisions about whether to seek the death penalty.
Legislators on the panel received the report differently. Some said they were troubled by the amount of leeway prosecutors have, while others said they were encouraged by the lack of racial bias in seeking the death penalty.
"I find the report troubling, and it raises more questions than it answers," said JLARC's chairman, Delegate Vincent F. Callahan Jr., Fairfax Republican. "We're also dealing with elected officials who prosecute, and [that] reminds me there's an old adage from a 20th-century humorist that the Supreme Court always follows election returns."
Sen. Thomas K. Norment, James City County Republican, disagreed, and said the report should bring comfort to minorities.
"I would say that it is a wonderful story to tell Virginians because it reminds all of us that the laws are being equally applied, and we are not back in some arcane era," he said. "I don't find the report troubling at all; I find it reassuring,"
The study examined data collected from such sources as the courts, commonwealth's attorneys offices, the Virginia State Police and the Department of Corrections.
It found that from 1995 to 1999, prosecutors sought the death penalty in 30 percent of the 93 cases where black defendants were indicted for capital murder, compared with 47 percent of the 76 cases where white defendants were indicted.
Where the crime took place is likely to influence prosecutors' decisions to seek the death penalty. The study found that prosecutors in urban areas sought the death penalty in 16 percent of capital cases, compared with 45 percent in suburban areas and 34 percent in rural areas.
Linda D. Curtis, chairman of the Commonwealth's Attorneys Association, said prosecutors' decisions about how to deal with cases reflect the values of their communities and are influenced by the attitudes of their local judges.
She objected to the finding that prosecutors deal differently with cases that are very similar.
"All cases are very different," she said.
Miss Curtis also pointed to the fact that from 1995 to 1999 about 11 percent of persons arrested for capital offenses were sentenced to death.
"The report seems to conclude not that there are people on death row who don't belong there, but that there are people who are not on death row and who belong there," she said.
Prosecutors also are more likely to seek the death penalty in cases where the victims and the defendants are not related, according to the report.
Death-penalty opponents who attended yesterday's meeting called the study a start but criticized its limited scope, saying it failed to address such issues as economics, lawyer misconduct and the defendants' age and mental capacity.
"There are still plenty of questions. We've got to study the system from A to Z," said Henry Heller, executive director of Virginians for Alternatives to the Death Penalty.
"For what they covered, it was well done," said Kathleen T. Kenney of the Catholic Diocese of Richmond. "It is very clear that there is no way to evenly distribute the death penalty across the state."
JLARC directed its staff to conduct the study in November 2000, weeks after new DNA testing cleared former death-row inmate Earl Washington Jr. of a 1982 rape and murder for which he came within days of being executed.
Among the 38 states with the death penalty, Virginia ranks second in the most executions in the past 25 years. Since the U.S. Supreme Court allowed executions to resume in 1976, Texas has executed 255 persons. Virginia has put to death 83.
The JLARC study also cites a Virginia Supreme Court rule that it cannot consider trial errors on appeal unless they were brought up during the trial. Federal courts considering Virginia cases also are bound by that rule.
The report states that according to several written opinions of federal judges, "Virginia's procedural restrictions have forced the courts to affirm the convictions for a few persons who were unquestionably guilty of capital murder, but have, nevertheless, not received a fair trial."
A study of the death penalty last year by the Columbia University School of Law found that fewer death-penalty cases are reversed on appeal in Virginia than anywhere else in the nation.

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