By Michael Sluss

Archives Reprint

    RICHMOND - A House of Delegates committee endorsed legislation Monday that would give prisoners unlimited time to introduce new evidence that could exonerate them, moving the state a step closer to abolishing its 21-day rule.

    A divided House Courts of Justice committee sent the bill (SB 333) to the floor with one significant change. A convicted felon would have just one chance to make a case for innocence, under an amendment the committee attached to the bill during its two hours of deliberations.

    The full House may vote on the measure as early as Wednesday. If the Senate rejects the House amendment to the bill, negotiators from the two chambers would then try to reach a compromise.

    Virginia law prohibits convicted felons from introducing new evidence beyond 21 days of their sentencing. The state makes an exception only for DNA evidence.

    A Virginia Crime Commission task force spent months developing a proposed change to the rule. Sen. Ken Stolle, R-Virginia Beach, who chaired the task force, is sponsoring the legislation.

    Under Stolle's bill, a defendant can file a petition with the Virginia Court of Appeals based on evidence that was unknown or unattainable during trial. The Court of Appeals can dismiss the petition if it deems the innocence claim to be groundless. But, if the appellate court finds the claim has merit, it can send the case back to the circuit court for a hearing on the new evidence. The Court of Appeals would ultimately decide whether to overturn the conviction, order a new trial or send the case back for resentencing.

    Opponents of Stolle's bill said the open-ended window for introducing new evidence would invite fraud and abuse by convicted felons. Stolle noted that 38 other states impose no time limits on bringing new evidence and have reported no major problems.

    The bill would prohibit claims by defendants who plead guilty or accept so-called "Alford pleas" in which they admit no guilt but acknowledge the prosecution has sufficient evidence for conviction.

    The House committee endorsed the measure by a vote of 13-8 after attaching the amendment limiting defendants to one post-conviction petition,

    "This will encourage them to get all their facts together and have one shot, one bite at the apple," said Del. Clifford "Clay" Athey, R-Front Royal, who proposed the amendment.

    By a narrow vote, the panel defeated an amendment aimed at maintaining a ban on introducing testimonial evidence.

    Advocates of lifting the ban on testimonial evidence often point to the case of Aleck Carpitcher, a Roanoke County man serving 38 years in prison for molesting a young girl who now insists she fabricated her testimony against him. Her recantation came nearly a year after Carpitcher's conviction.

    Del. Morgan Griffith, R-Salem, said courts should be allowed to consider new testimonial evidence in cases where testimony alone led to a wrongful conviction.

    "If the facts were so compelling, I would hate to say we could not allow that person an opportunity," Griffith said.

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