- The Washington Times - Saturday, February 23, 2008

RICHMOND (AP) — Legislation to eliminate Virginia’s so-called triggerman rule was sent yesterday to Gov. Tim Kaine’s desk.

The proposal to expand the death penalty to include certain murder accomplices cleared the House of Delegates on a 78-17 vote. The Senate previously passed the measure 24-14 — three votes shy of the two-thirds majority needed to override a gubernatorial veto.

In Virginia, only the person directly responsible for a killing can get the death penalty. Sen. Mark D. Obenshain’s bill would allow capital punishment for any accomplice who shares the triggerman’s intent to kill.

Mr. Kaine, a Democrat, vetoed the same legislation last year and has not changed his view, spokesman Gordon Hickey has said. Mr. Obenshain, Harrisonburg Republican, said Mr. Kaine has pledged to discuss the issue with him before acting on the legislation.

I know the governor has concerns about expanding the death penalty, but I take him at his word when he says he will sit down and talk about it, Mr. Obenshain told reporters after the House vote.

Attorney General Robert F. McDonnell and a half-dozen sheriffs and prosecutors later joined Mr. Obenshain and Delegate C. Todd Gilbert at a press conference where they urged Mr. Kaine to sign the bill.

Equal wrongdoing and equal culpability deserves equal punishment, Mr. McDonnell, a Republican, said. He said that fundamental principle applies in every area of law except capital murder.

Proponents of the bill cited several cases in which a killer was spared the death penalty because of the triggerman rule. For example, Brandon Hedrick was executed in July 2006 for the rape and murder of a woman in Appomattox County while an accomplice only got life in prison.

Virginia is one of only three states that have the death penalty but do not apply it to accomplices who share the triggerman’s intent to kill, said Mr. Gilbert, Shenandoah Republican who called the rule outdated, illogical and unfair.

Virginia law does, however, carve out three exceptions to the triggerman rule: murder for hire, murder ordered by someone in an illegal drug enterprise, and murder by someone engaged in terrorism.

Also, a 2006 analysis by the Virginia State Crime Commission found that the state Supreme Court has repeatedly held that if there is more than one immediate perpetrator of a capital murder, all of them may receive the death penalty. The court cited that theory and the terrorism exception in upholding the death sentence of D.C.-area sniper John Allen Muhammad.

Mr. Gilbert, sponsor of the House version of the bill, said that but for the creative efforts of prosecutors, Muhammad might have avoided the death penalty. Lee Boyd Malvo was the triggerman in the October 2002 shooting spree that left 10 people dead.

Pittsylvania County Commonwealth’s Attorney David N. Grimes said immediate perpetrator usually only applies to an accomplice who physically participates in a killing — for example, pouring gasoline on someone who is subsequently set afire by another person.

Since the U.S. Supreme Court reinstated capital punishment in 1976, Virginia has executed 98 persons, second only to Texas, according to the Death Penalty Information Center.

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