March 29 2001

Death Row Cases In Va. Earn New Court Scrutiny

The Virginia Supreme Court and the federal courts overseeing the statehave subjected several death row cases to unusual scrutiny in recent days,the latest sign that Virginia's fastest-in-the-nation system of capitalpunishment is slowing down. As a result, executions have all but halted in astate that has put more people to death than any state except Texas. Theonly person executed this year had dropped his appeals, and only one otherexecution among the 28 people on death row is scheduled. In 1999, Virginiaexecuted 14 people, taking an average of just six years between an inmate'ssentencing and death. But since then, the system has been subjected tointense examination by the U.S. Supreme Court and the legislature. Also,last year, Earl Washington Jr. became the first Virginia death row inmate tobe exonerated by DNA testing. "The whole atmosphere on capital punishmenthas changed," said Scott Sundby, a law professor at Washington and LeeUniversity. "Both legislative and judicially, there is a pause, and we are starting to look more closely at what has happened." Over the last several days:. The state highcourt ordered hearings in a death row appeal Friday -- the first time it hasdone so since 1995. An Appomattox court will consider evidence that BrandonWayne Hedrick's first attorneys were so bad that he was denied a fair trialon rape and murder charges.. On Monday, the U.S. District Court in Roanokeagreed to hear evidence that Percy Walton was so mentally ill that he wasincompetent to stand trial and that his attorneys were inadequate becausethey failed to press the issue.. Three judges of the 4th U.S. Circuit Courtissued a rare written dissent from a routine death penalty motion in thecase of Walter Mickens Jr. They noted that Mickens would be entitled to anew trial in other parts of the country but not in the 4th Circuit. Thedissent, issued Tuesday, "is basically inviting the U.S. Supreme Court totake the case," said Rob Wagner, who represents Mickens. Two other inmates who scored unusual court victories last spring are still working their way through thejudicial process. The U.S. Supreme Court sent Michael Williams's case backfor a new hearing because one of his jurors had been married to aprosecution witness. Also, the state high court, for the first time since1977, ordered a new trial during the second round of appeals -- calledhabeas corpus -- for Chauncey Jackson. Capital punishment continues to enjoystrong support from the public, and most death sentences surviveexamination. Two of the four Virginia capital cases considered by the U.S.Supreme Court in the last term were upheld, and the inmates were executed."I don't think it's accurate to say there is a wholesale examination ofVirginia death penalty cases," said David Botkins, spokesman for AttorneyGeneral Mark L. Earley (R). "Numerous unbiased experts have said Virginia'scriminal justice system is a model for the nation. The system is fair, with numerous avenues of appeal available to defendants. . . . "The overwhelming majority of the sentences are carried out," he said. In the Mickens case, the full 4th Circuitrejected his claim that he should get a new trial because hiscourt-appointed attorney had been representing the victim in the case,Timothy Hall, at the time of the killing. Mickens will die April 17 unlessthe U.S. Supreme Court intervenes. And on the same day the Virginia SupremeCourt granted Hedrick's unusual hearing, it rejected death row inmateDarrick Demorris Walker's appeals without an evidentiary hearing. "It ishard to feel that Mr. Walker has gotten meaningful . . . review," said hisattorney, Eric Hougen. Still, many observers agree that something new ishappening in Virginia. Historically, the courts in Virginia have been farmore skeptical of death row inmates' claims than those elsewhere. A 23-yearstudy of death penalty cases by James Liebman, a Columbia University law professor, found that courts overturned 18 percent of Virginia death sentences, compared with 68 percent elsewhere. But the U.S. Supreme Court has been critical of Virginia cases recently, particularly on the issues of inadequate counsel and failing to grantevidentiary hearings. "The [high] court said, 'We validate deference to thestate courts, but you've gone way beyond where you should have,' " Liebmansaid. The Virginia Capital Resource Center, which represents Walton andHedrick, appears to be reaping the benefit. In Walton's case, resourcecenter lawyer Jennifer Givens said her schizophrenic client, accused ofkilling Lisa Yvonne Alexander Crider, laughed through his sentencing hearingand sometimes does not know who she is. She said she intends to argue thathis previous counsel should have pushed the issue of his mental competencemuch harder. "I have high hopes for this case," she said. Hedrick'sattorneys want to show that his trial attorneys failed to consult with their court-appointed psychiatric expert, did not prepare for cross-examination of the state's witnesses and didn't even begin to discuss strategy until three days before his trial. Oneof the trial attorneys has agreed to help Hedrick's team. The other declinedto comment. But Crider's mother, Dale Alexander, said Hedrick got a fairtrial. " "He's always making excuses. Every time he opens his mouth, he'staking advantage of her death to say that he is the victim."