Almost Certain Death

Why it’s harder to overturn a murder conviction in Virginia than anywhere else.

By: Drew Lindsay

When it comes to death-penalty appeals, Virginia’s courts act like no other.

In 2000, criminologists and lawyers at Columbia University compiled data on more than 4,500 capital cases between 1973 and 1995. The Virginia Supreme Court, they found, overturned lower-court rulings in only 8 percent of cases on direct appeal, compared with a national average of 41 percent. The state’s federal appeals court, the Fourth Circuit, set aside decisions in only 7 percent of Virginia cases that it heard.

No single thing explains the very low reversal rates. Virginia prosecutors, the study’s authors suggest, don’t overreach. The number of capital cases as a proportion of murders is small, a sign that the state’s attorneys go for the death penalty only when they have a solid case.

For years it was believed that poor-quality defense lawyers contributed to the low numbers. The state did little to set standards for attorneys who handle capital cases. Recently, the state has toughened qualifications for counsel in death-penalty cases and created regional offices of attorneys who specialize in capital defense.

Critics now focus on court rules and procedures. Virginia Supreme Court rules give criminal defendants only 21 days after sentencing to make a claim of innocence to the trial judge based on new evidence. That’s the fastest deadline in the country; 38 states set no such limit.

Pressured by critics of the 21-day rule, Virginia created a new avenue for defendants with new evidence to try to prove their innocence in the state high court. But it has not been a boon to defendants who lack DNA or other biological evidence. In August, the first defendant was exonerated under the four-year-old law; petitions claiming innocence from more than 120 others have been denied.

The high court also limits state habeas corpus petitions in death-penalty cases to 50 pages. To get under that cap, a defendant with multiple arguments often must pick and choose which to include on appeal—a critical choice given that the federal Fourth Circuit won’t rule on an issue that hasn’t been aired at the state level.

While other courts often waive their rules and procedures, the Virginia Supreme Court is famous for sticking to them. Its judges in the mid-1990s refused to consider the case of a defendant whose lawyer had submitted his petition with the wrong court and subsequently missed the high court’s filing deadline.

In 2001—two months before Justin Wolfe’s trial began—a legislative commission found that the state’s high court dismissed, on procedural grounds, more than a third of claims made by defendants in habeas petitions. The Fourth Circuit threw out a similar percentage of claims for procedural reasons.

The courts, the commission concluded, may have upheld the convictions of “a small number of death-row inmates who may not have received a fair trial.”

This article first appeared in the March 2009 issue of The Washingtonian. For more articles from that issue, click here.