Thursday, May 3, 2001

Virginia felons now will have more time to ask for additional DNA testing after Gov. James S. Gilmore III signed a bill yesterday granting that right.
Convicts have had the ability to ask a judge to throw out a conviction on procedural or constitutional grounds, but until yesterday they had only a 21-day window after sentencing in which to introduce new evidence in court to prove their innocence. The new law allows unlimited time to ask for testing of newly discovered DNA or DNA that has been tested but for which a better test has become available.
The new appeal may matter most for death-row inmates; one man who faced execution has been pardoned because of the DNA testing, and several inmates in capital cases have asked for new tests.
Mr. Gilmore also signed bills prohibiting human cloning in Virginia but vetoed four others, including a bill that would have allowed students to substitute vocational tests for some Standards of Learning tests and one that would have let Fairfax city place a lower property tax on new improvements to a property.
But the DNA bill is the most far-reaching, and advocates say it restores confidence in the death penalty system, which has come under increasing scrutiny in recent years.
“Its wide enough to allow people to address the DNA question but not so wide as to allow there just to be a complete review anytime anyone wanted one about actual innocence post-conviction,” said Sen. Kenneth W. Stolle, Virginia Beach Republican and the driving force behind the law.
“This is a radical change in the criminal justice procedures, but its not a reckless change. Its a very well thought-out change that needed to occur,” he said.
Mr. Gilmore signed the bill despite reservations about several aspects of it, particularly that it applied to all felons, not just those who pleaded not guilty but were convicted.
“Allowing additional DNA testing by convicted criminals, who readily admit guilt at the time of their trials, presents an opportunity — indeed an incentive — for the manipulation and abuse of the criminal justice system in their cases,” Mr. Gilmore wrote in a letter to legislators explaining his concerns.
Richard Trodden, the commonwealths attorney in Arlington, said prosecutors will have to give longer lists of facts and evidence that defendants will have to agree to at the time they accept a plea. Difficulties might arise if an appeal is filed several years later.
The law has three parts: It lets a defense attorney request that DNA evidence be saved for future testing; it allows anyone convicted of a felony to ask for new DNA testing; and, where the testing may exonerate someone, it allows those convicted of serious crimes to ask a court to issue a writ of innocence.
The first two parts take effect immediately, but the third part wont take effect until Nov. 15, 2002. Thats because the attorney general argues it will take a change to the state constitution for the Supreme Court to be able to hear these cases — a two-year process — but other lawmakers say the law can take effect in 2002 even without the constitutional amendment.
Efforts in this years session to end or place a moratorium on Virginias death penalty were defeated, but the legislature unanimously passed the DNA bill and last month rejected several amendments from Mr. Gilmore that would have limited those who could apply for testing.
Momentum for changes grew among lawmakers after Mr. Gilmore pardoned Earl Washington Jr. , based on DNA evidence. Mr. Washington at one time had been days away from execution.

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