- The Washington Times - Monday, February 5, 2001

RICHMOND Virginia lawmakers yesterday effectively endorsed the state's death penalty in rejecting the final proposal for a moratorium on executions but advancing a bill to allow for a new avenue of appeals based on DNA evidence for death row inmates and other convicts.

The Senate Courts of Justice Committee, after a two-hour hearing, unanimously approved a bill that would let convicts appeal to a judge for testing if new biological evidence is discovered in their case.

But committee members also rejected a bill to impose an 18-month moratorium on the death penalty, just days after the House Courts of Justice Committee rejected similar bills, meaning those efforts are dead for the session.

The death penalty has come under increasing scrutiny after inmates have been released in recent years after being exonerated of the crimes that landed them on death row. A year ago, Illinois' Republican governor suspended executions after several inmates were set free.

In Virginia, which executes more convicts than any other state except Texas, lawmakers this session have reaffirmed their faith in the system but also in effect conceded it needed work.

The Senate committee has passed a bill that relaxes part of the state's 21-day rule, which is the strictest rule of its kind in the nation. Currently, an inmate sentenced to death has 21 days after sentencing in which to introduce evidence that proves he is innocent. After 21 days, he loses his judicial avenue for appeal of innocence and must either convince a judge his attorneys failed or go to the governor for clemency.

The bill the committee passed would allow an inmate in any case not just death penalty cases to petition a court to test newly discovered biological evidence, namely DNA, at any time. After the test is granted, the inmate then could ask the court to review the evidence to see if it proves the inmate likely is innocent.

Public defenders and other defense lawyers said the bill doesn't go far enough. It applies only to those who plead not guilty, and so isn't available to those who are innocent but who have struck plea bargains to avoid stiffer sentences, they said. It also applies only to biological evidence, which means that a newly discovered piece of physical evidence wouldn't be enough to petition.

But supporters said it's a good start.

"People may not think the bill goes far enough I don't think people disagree with whether or not the bill does good things," said Sen. Kenneth R. Stolle, Virginia Beach Republican and the bill's sponsor.

Lawmakers still have to solve the problem of what to do if critical biological evidence is lost. They don't want to automatically release an inmate just because the evidence can't be found, but they also don't want to keep an innocent person in prison because of the system's error.

Lawmakers hope to fix that problem by the time the bill reaches the Senate floor this week. Its passage in the Senate and the House is certain.

One particular case has driven much of the push for reform in Virginia.

Earl Washington, convicted of raping and killing a Culpeper woman, was 10 days from execution before he received a stay of his conviction. He had his sentence commuted by then-Gov. L. Douglas Wilder, who said he had doubts about the conviction, but remained in prison until Gov. James S. Gilmore III pardoned him last year.

His case has become a test for those hoping for drastic reform.

"Would this bill have saved Earl Washington from execution? I wouldn't say with any comfort that it would," said Robert T. Hall, one of Mr. Washington's appellate attorneys. "When Washington wouldn't probably have benefited from this bill I think it's time to take another look."

But prosecutors testified that Mr. Washington's case shows the system does work.

"The reason we don't speak of [Earl Washington] in the past tense is the evidence was examined, it was presented to the governor, and the governor, using the power he has to pardon, did just that," said William G. Petty, commonwealth's attorney for Lynchburg.

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