George --

For some reason, people continue to misunderstand what the 21-Day Rule bill that was passed last year did.

The bill set up a procedure that allowed inmates to take that evidence to court to have a judge review it even if more than 21 days had passed after sentencing, BUT THAT PROCEDURE WILL NOT GO INTO EFFECT UNTIL AFTER NOVEMBER 2002, IF THEN. It is not in effect now. Today, no inmate can take any evidence to court, DNA or otherwise, without running into the 21-day rule, which continues, as of today, fully in place and in effect.

The problem is that, according to the General Assembly, the new procedure cannot go into effect unless it is authorized by an amendment to the Virginia Constitution. A constitutional amendment was passed last year by the legislature to do that. It will have to be passed again by this year's General Assembly and then voted on by the voters at the November 2002 elections. Then, assuming it passes, it will become law, and people will be able to take advantage of this new exception to the 21-day rule.

In the view of many people it was not necessary to set up such a cumbersome process, but that is another issue.

As Delegate Almand correctly points out, even if the constitutional amendment passes, the effect will be only to create a limited exception to the 21-day rule for cases where DNA evidence demonstrates innocence. Prisoners will not be able to take any other newly discovered evidence, which is what 90% of the cases turn on, to a judge, no matter how powerful or persuasive it is in proving innocence. In the vast majority of cases, the 21-day rule will be alive and well. So Delegate Almand is right to continue his efforts to repeal it.

But my main point is that the change to the 21-day rule passed last year is not yet in effect, and the 21-day rule continues, today, to be the rule in Virginia. There is, right now, no procedure in place to ask any court in Virginia to review new evidence, DNA or otherwise, after the 21-day limit. Although there have been stories about inmates using the new law, the fact is that no one has been able to get a court to review his conviction under the new law, because the procedure set up by the law is not yet in place.

There is one change now in effect, and that may have led to some of the confusion: prisoners can, today, have DNA tests done on organic evidence from their case (if there happens to be any). If that evidence shows they are innocent, the only thing they can do with it is what they could always do -- go to the Governor for a pardon or challenge the conviction under habeas corpus if the new evidence gives you grounds to do so (which is by no means automatic). And hope that the amendment passes the legislature and then is approved by the voters this November.

In the meantime, the scandal of Virginia's 21-day rule continues. It is, basically, business as usual.

Ed Wayland (electronic mail, January 4, 2001).