20 February 2003

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The 21 day rule is going to be changed to a 90 day rule.

Unfortunately, this does nothing to solve the problem. For those of you who do not know the rule, in general actual innocence is not a reason for a conviction to be overturned in Virginia. If new evidence, which was not known or available prior to trial is discovered within 21 days it can be brought to the trial court in order to request a new trial. There is a valid reason for the known or available evidence qualifications; it is to keep evidence which was withheld or not sought (usually for tactical reasons) by the defendant from being raised after conviction to give the defendant a second shot.

However, it is much harder to justify the date restriction. It is very hard to convince trial judges and appellate judges that you have actually discovered new evidence within 21 days (or even 90) which was absolutely unavailable just a few days prior. Why? Because common sense tells all of us that is not enough time for anything which is truly new to have developed. Serious evidentiary matters which are not available at time of trial will most often develop long after the arbitrary date when someone else confesses or new means of developing evidence (such as DNA) are developed or refined. But since actual innocence is not a reason to come back to court and the rule keeps new evidence from bringing the case back to court you have no access to the judicial system. Your only hope is a prayer for clemency but even after the governor has commuted your sentence and restored your rights that felony conviction remains on your record.

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