FREE DUSTY!

21-day rule may be eased
New-evidence restriction reviewed

By FRANK GREEN
TIMES-DISPATCH STAFF WRITER
May 13, 2003
 

A task force studying Virginia's "21-day rule" may finally make substantial revisions sought by opponents for decades.

Even supporters of the rule concede that many Virginians are surprised to learn that if an inmate has irrefutable proof of innocence discovered more than 21 days after the end of a case, that evidence can never be heard in a Virginia court, with DNA evidence an exception.

It is the toughest and one of the most strictly enforced such rules in the country.  As a result, an innocent inmate's only hope for freedom is usually the rarely used power of a governor to pardon.

The Virginia Supreme Court, in the wake of several highly publicized cases of inmates being proven innocent, proposed sweeping changes to the court's 21-day rule, which was enacted in 1976.

The justices, however, have held off taking action because the General Assembly signaled last year that it wants to change the rule with a new law.

The assembly passed a bill extending the period to 90 days in a move many critics called little more than token.  The idea, however, was to restudy the new-evidence rule at length this year and come up with a better solution.

Had there been no 21-day limit, an inmate like Dustin Allen Turner might have been able to win some help in the courts.

Turner is one of two Navy SEAL trainees convicted of the 1995 slaying of Jennifer Evans, a 21-year-old pre-med student.  Each man blamed the other in separate trials and their juries believed neither.

In a startling development this year, Turner's former buddy, Billy Joe Brown Jr., admitted in a sworn statement that he alone killed Evans.  "We were sitting there talking and next thing you know I reached up and choked Jennifer and killed her," Brown said.

"I just snapped," he said.

Turner, 28, locked up since he was 20 for a crime he and Brown say he did not commit, said being innocent in prison is "terrible.  It's absolutely terrible."

"It's hard, it's so hard for my family.  I'm sitting here faced with a life sentence for two crimes that I committed neither one of them.  It's tough, really tough.

His lawyer, David Hargett, knows he cannot bet Brown's confession before a court because of the 21-day rule.  Instead, said Turner, they will ask the governor for clemency or at least a new trial.

The effort to revise the new-evidence rule was announced last month by state Sen. Kenneth W. Stolle, R-Virginia Beach, who is a member of the Virginia State Crime Commission.  The effort is supported by Gov. Mark R. Warner.

The commission created a task force of legislators, prosecutors, defense attorneys, a Supreme Court justice, an appeals court judge and others, to study the rule and to recommend changes.  At its initial meeting last month, the members indicated they would consider stretching the 21 days to a matter of years.

In that opening meeting, Stolle said it was important that the criminal-justice system protect the innocent and then punish the guilty.

He said last week that "I think the criminal-justice system is evolving and I think the DNA evidence and evidence of actual innocence is part of that evolution."

Stolle, a lawyer and former police officer, said, "I would hope that nobody would sit back and say that our system is infallible."

He said that in recent years there has been a recognition that there is a problem with the rule.  Several years ago the legislature made DNA evidence an exception to the rule.  Stolle believes that more can be done.

Jack Payden-Travers, a longtime critic of the rule and the director of Virginians for Alternatives to the Death Penalty, said he was buoyed by what he heard at the first task force meeting.

His group wants to see the rule entirely abolished so that any inmate with strong evidence of innocence can get it before a judge no matter how long after he or she was convicted.

He said that no kind of evidence should be barred, be it testimonial, documentary or scientific.  The court should decide if it is suitable evidence.  "I think that's one of the issues the panel is going to have to grapple with," Payden-Travers said.

"At the first meeting, you very much had the judges saying, 'We're capable of determining what's evidence.'"  The defense attorneys on the task force were saying that if all types of appropriate evidence are permitted to be used to convict someone, then all types should be available to clear the innocent.

Payden-Travers said many opponents of reform have argued changes would lead to a deluge of frivolous attempts by guilty inmates to free themselves.  But Payden-Travers said, "The states that have no time limits have not had the floodgates opened."

Virginia Attorney General Jerry W. Kilgore, however, does not agree.

Tim Murtaugh, a Kilgore spokesman, said the attorney general favored the 90-day limit.  Innocent inmates with proof of innocence can still petition the governor for help and inmates with DNA claims can pursue them under current law.

According to a study by the crime commission's staff, 20 states have no time limit for inmates to petition a court with newly discovered evidence of innocence.  Nine states limit it to two years, eight to one years, five to three years, five to 30 days, one to 60 days, one to 90 days and one to 120 days.

Most states have stringent requirements an inmate must meet in order to get the new evidence in court.  Usually it must be evidence that was not known at the time of the trial and could not have been discovered "through due diligence" by the defense attorneys.

Also, such evidence should not be cumulative or evidence that impeaches trial testimony.  Finally, it should be evidence that, had it been known at the time of the trial, would probably have produced a different outcome.

Another inmate who might benefit from a rule allowing new evidence is Aleck J. Carpitcher.  In 1999, at age 43, Carpitcher was sentenced to 38 years without parole for sexually abusing the 11-year-old daughter of his girlfriend in Roanoke County.

But nine months after Carpitcher entered prison, the girl said there had been no molestation and passed a polygraph test in an effort to prove it.  She has even admitted it in a court hearing - though the admission could not be used to prove Carpitcher's innocence.

The girl, now a teenager, said she made up the story to break up the relationship between her mother and Carpitcher.  Her testimony was the only evidence against Carpitcher.

"It breaks my heart that people can be taken away and put in these places, and they can prove that they're innocent later, but it's more than 21 days later," Carpitcher said.

Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com