WITH VIRGINIA'S Supreme Court poised to amend the state's noxious rule blocking convicts from access to the courts, the General Assembly has jumped into the fray. Last week the state crime commission asked the state Supreme Court to hold off on amending the so-called 21-day rule -- which prevents courts from considering newly discovered evidence more than 21 days after a conviction -- so that the legislature could address the matter itself. This would be fine if the General Assembly were planning to deal with it swiftly and seriously. But judging by the proposals members are putting on the table, there's little reason for confidence of that.
The 21-day rule is one of the truly irrational aspects of the commonwealth's criminal justice system. Under its terms, even indisputable evidence of innocence is off limits. After a conviction becomes final, Virginia law simply doesn't care whether it was accurate or not. The General Assembly recently created a narrow exception for biological evidence, but that only raises the broader question of why other compelling evidence of innocence should remain beyond review. To its credit, the Virginia Supreme Court has been troubled by the 21-day rule, and it recently proposed an amendment that would allow courts to consider non-biological evidence after conviction in certain cases as well.
Now, however, the crime commission has sought to delay the final rule and dump the process of amending it into the legislature. Sen. Kenneth W. Stolle (R-Virginia Beach), who heads the commission, has introduced "place-holder" legislation that would relax the rule slightly while the legislature studies the issue. But his place-holder legislation is hardly better than no change at all. And there is no guarantee either that the legislature's final product will be as constructive as the court's proposed rule, or even that inertia will not render the temporary measure permanent.
Mr. Stolle's bill would, if enacted, turn the 21-day rule into a 90-day rule. But in major cases in which Virginia convicts have turned out to be innocent, the critical evidence has never surfaced during the 69 extra days this proposal would allow. Rather, evidence of innocence generally comes to light years later. The fundamental problem is in any rule that, after any arbitrary period of time, keeps imprisoned an innocent person who can prove his innocence. Mr. Stolle says he is willing to be flexible about the interim measure. And if the General Assembly wants to tackle this problem, its involvement is certainly welcome. But it would be a great shame if legislators blocked the Supreme Court's proposal and then dithered or produced no meaningful change.