THREE weeks is not a lot of time. Ask any fourth year looking for a job - it can take longer than that just to get the interview. I became very nervous this week realizing I had less than three weeks to research an important paper. Three weeks definitely is short when you're trying to get in shape for the beach. Anything worthwhile takes time.
Now imagine you were just convicted of a crime, and you have three weeks left to appeal with new evidence. In the Commonwealth of Virginia, the introduction of new evidence 21 or more days after trial is prohibited. The Virginia legislature has voted to exempt DNA evidence from this rule, but it needs to drop the rule entirely.
Many states limit the time a defendant has to appeal a verdict. States also make those who appeal show that it is likely that the new evidence would result in a contrary verdict. Virginia, however, has the strictest rule in the nation: Appeals on the grounds of new evidence only can be made within 21 days of conviction. Publicity about overturned death row convictions and DNA evidence's power to solve old crimes has sparked interest among lawyers and those involved in the criminal justice system in exempting DNA from the 21-day limit to fully exploit this technology's potential.
The exemption for DNA evidence will have limited benefits because it is rarely applicable. The book Actual Innocence by three criminal defense lawyers including celebrated counsel Barry Scheck, details many cases where the application of new DNA technology to old physical evidence proved the innocence of wrongly convicted men, many sentenced to die.
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But, in their concluding chapter, the attorneys point out that only a small fraction of crimes - almost always rapes - result in the type of forensic evidence that demands DNA testing. In fact, while exact statistics aren't available for non-death penalty cases, a Death Penalty Information Center study showed that only 10 of the 93 men freed from death row since the 1970s were freed by DNA evidence.
Skeptics may argue that expanding the time for all evidence may lead to the manufacturing of evidence of innocence. The case of Gary Graham, executed for murder in Texas in June 2000, is often cited in arguments both for and against speeding up the appeals process.
Graham attempted to appeal his conviction over the last decade on the grounds that he had a "new" witness who had not appeared in the 1981 trial but claimed Graham wasn't the murderer. In the end, however, the appeals court refused the evidence, based on the fact that the witness had no good reason for not coming forward earlier and was not credible. In other words, courts could still take into account in appeals whether there is a good reason evidence wasn't present at the original trial without their hands being tied by statutes.
By contrast, the current system is arbitrary and limits what judges may consider when appeals are placed before them. A time window of 21 days means that we might as well not have a time window at all. Logically, the only way anyone would have new evidence in 21 days after conviction would be if some piece of evidence was discovered during trial and was not ready to present until conviction had occurred, because it's not very probable that new evidence will magically appear in a matter of 3 weeks.
However, in Actual Innocence and another book, The Promise of Justice, by David Protess, which covers the most high-profile cases, most of the men eventually proved innocent were put in prison first because either the police had not bothered with exculpatory evidence - pretrial evidence that tends to indicate innocence - or the original defense attorney had not fully investigated the case. Both of these problems generally don't become apparent within three weeks. Instead, it can take years to find another attorney who will take a fresh look and stumble onto what was overlooked before. These are cases where new evidence is literally "discovered."
Eliminating the 21-day rule will inevitably make the appeals process a little messier and perhaps a little slower. But the rule has made the status quo chaotic by inserting politics into the process of dealing with wrongful convictions. Earl Washington Jr. had no legal right to the DNA testing that freed him; instead, political and media pressure won him the testing and subsequent pardon. There are countless inmates, both guilty and innocent, who aren't able to garner the same attention. That's not justice.
Virginia legislators have made a good start with trying to exempt DNA from the 21-day rule, but they need to widen their focus and drop the rule completely. Such an action would give the judiciary the tools it needs to make sure that guilt is as convincingly proven or disproved as possible. The legitimacy of our justice system depends on it.
(Elizabeth Managan's column appears Tuesdays in The Cavalier Daily. She can be reached at emanagan@cavalierdaily.com.)
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