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Everyone agrees that Virginia has a swift death penalty system. The question is whether it’s accurate. A sweeping nationwide study of more than 5,000 capital cases over 20 years shows that Virginia executes condemned prisoners more quickly than almost any state in the union, and that state and federal courts reverse fewer death sentences than those in any other state. The study by a New York law professor, released today, is eliciting sharply dueling interpretations. “This exhaustive study proves Virginia’s criminal justice system works better than any other state’s in the nation,” says David Botkins, spokesman for Virginia Attorney General Mark Earley. The author of the study and capital defense attorneys see it the other way. “There’s less error found. There’s less error cured,” says James Liebman, a Columbia University School of Law professor who co-wrote “A Broken System: Error Rates in Capital Cases, 1973-1995.” The Virginia courts, Liebman concludes, “are bad curers of error. They are bad finders of error.” Of the 105 Virginia prisoners sentenced to die during the years studied, 29 were executed — or nearly 28 percent. The average time from sentence to execution was 7.5 years. And 13 death sentences — or 12 percent — were overturned by state or federal courts. Virginia’s numbers are out of whack with the rest of the country, Liebman says. Nationwide, the report finds that 68 percent of all death sentences handed down in the United States between 1973 and 1995 were overturned, and that only 313 of 5,760 condemned prisoners — or 5 percent — were executed. The average time between the jury verdict and death was nine years. Liebman says in an interview that his study questions the level of scrutiny from the Virginia Supreme Court, federal district judges, and the 4th U.S. Circuit Court of Appeals. He points out that federal judges and circuits in many states have recognized the high frequency of ineffective defense counsel and prosecutorial misconduct at the trial level and have acted as a buffer between the states and execution. But the 4th Circuit, he claims, effectively offers “no scrutiny” to death appeals. Between 1977 and 1995, the 4th Circuit reversed two out of 31 Virginia capital cases it reviewed. Overall, in cases from Virginia, Maryland, South Carolina, and North Carolina, the Richmond-based circuit found error 15 percent of the time, far less than the national average among circuit courts, which is 40 percent. In contrast to Liebman, the attorney general’s office says the courts of appeal find few problems because the commonwealth’s system works. “Capital crimes are narrowly defined, prosecutors make very few reversible errors at trial, the capital defense bar is very effective, and Virginia’s state and federal judges are very thorough and deliberative,” Botkins says. COURT OF LAST RESORT Among Richmond capital defense attorneys there is an old adage: After being sentenced to death in Virginia, your best chance for relief is the U.S. Supreme Court. It is intended to be comic relief on a grim subject, but there is an element of truth to it. The U.S. Supreme Court, which takes no more than a handful of capital cases each year, has upset more Virginia death sentences than the state high court has in post-conviction proceedings. Defense attorneys say that trial errors are made or missed frequently because of Virginia’s strict post-conviction procedures, including one that bars introduction of new evidence discovered more than 21 days after trial, and another that says the defense can raise on appeal only issues that were objected to during the trial. “Virginia has the strictest procedural default rules in the country, which affects not only the state courts but binds the federal courts,” says Liebman. Surprisingly, former Virginia Attorney General William Broaddus sides with Liebman. “I’ve come to oppose the death penalty,” Broaddus says. “I hope we can disseminate information about its problems to convince others that it is too arbitrary.” As AG, Broaddus supervised deputies in four cases that resulted in execution. “It’s part of our culture and our heritage in Virginia,” says Broaddus, now at the Richmond office of McGuire, Woods, Battle & Boothe. But, then, Broaddus has seen the other side. In 1995, after returning to private practice, he was appointed to handle condemned prisoner Angel Breard’s federal petition for habeas corpus. “When you go to death row to meet somebody, you have to shake his hand and ask yourself why we are trying to execute him,” Broaddus says. “Especially when there are alternatives.” For Broaddus, the biggest problem is the wide disparity between the quality and resources of defense counsel vs. that of prosecutors, although the appellate process is also imperfect. “When I was there you reviewed each case,” he says. “But it’s a paper review process. From my perspective, I was at arm’s length. It’s a very sterile process.” If the view from the top looks murky, it’s even muddier for longtime defense attorneys. Gerald Zerkin, who has defended capital cases for 25 years, and Ronald Lee of the Virginia Capital Representation Resource Center, are with clients from the beginning of their cases to the end. One story that they say vividly demonstrates the unfairness of the system is the case of Ronald Hoke. In 1985, Hoke, a cocaine and heroin addict one day out of rehabilitation on his way to another drug treatment center, cashed in his bus ticket to buy drugs, according to court filings. That night, Hoke met 57-year-old Virginia Stell at the European Restaurant in Petersburg, Va. The two left the restaurant after kissing, according to one witness whose version of events was known to the prosecutor, but not to defense counsel. It was not introduced at trial. Police found Stell’s naked body on her apartment floor on Oct. 7, two days after they met. Her ankles and wrists were bound with an extension cord and her wrists with wire from an iron. Her underwear was used as a gag. She had been stabbed twice, once in the abdomen and once in the back. A knife, covered in her blood, lay on the ironing board next to the bed. On Oct. 15, at 3:25 a.m., Hoke flagged down a Maryland police cruiser and confessed to the crime, although he said that he and Stell had consensual sex. Hoke was convicted of murder and rape and was sentenced to die. A 4th Circuit panel upheld the death sentence. But Judge Kenneth Hall, who was seen as a relatively conservative member of the court by Zerkin and Lee, wrote a blistering dissent. He didn’t doubt that Hoke was guilty of murder, but he said the evidence did not prove Hoke had raped Stell. His dissent outlines a trial and appeal gone wrong, a prosecutor who “cut every ethical and legal corner,” and an incompetent defense counsel, who was forced to surrender his license to practice law several years later for neglect of cases. However, the majority held “that the evidence supports the jury’s finding that Hoke killed Stell in the commission of abduction.” Hoke was executed in 1996. In capital cases, Zerkin says, the court’s assumption of innocence collapses under the pressure of insuring that any potential danger to society is eliminated. “The system is fundamentally flawed in Virginia,” says Zerkin. “If you ask any criminal defense attorney, the burden of proof in Virginia shifts more and more to the defense as the crime becomes more serious.” Liebman, the Columbia professor who has represented two capital defendants at retrials after their original convictions were overturned, says he purposely took a “managerial” approach to studying the death penalty, steering clear of ethical or moral grounds for questioning capital punishment. He and his co-authors, fellow Columbia Law School Professor Jeffrey Fagan and New York University sociologist Valerie West, are compiling a second report — due in November — that suggests what changes can be made, if any, to fix the system’s problems. “The second phase is to look at the warning signs and decide what can be done,” Liebman says.

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