ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, November 12, 1996 TAG: 9611120068
SECTION: EDITORIAL PAGE: A-4 EDITION: METRO
GOV. GEORGE Allen did well last week to commute the death sentence of Joseph Payne. But, in doing so, he was also right to discount the pleas for clemency from jurors and the victim's mother.
The problem is that defense lawyers' success in saving Payne's life may speak louder than the governor's disclaimer. If death-penalty opponents think a few jurors' turnaround - and the publicity this inevitably drew - influenced the outcome, the temptation would be great to do as Payne's lawyers did. This would further degrade a system that already is unconscionably arbitrary and, at its heart, rotten.
What Payne's lawyers did was go to jurors and the victim's mother - the people who could be expected to most want Joseph Payne to die - and offer them evidence not presented at trial that challenged the credibility of the sole prosecution witness. The lawyers succeeded in raising enough doubt among some jurors that they asked the governor to commute the death sentence, a twist that of course received wide news coverage.
One problem, among others, with appealing in this way to the court of popular opinion is that the rules of evidence don't apply. "Justice" goes to the party who can generate the best media spin. And the public's verdict matters when the "judge" is the governor.
In Payne's case, beleaguered jurors were asked to make a terrible decision all over again, this time considering testimony that could not be subjected to objections and cross-examination or otherwise challenged by the state. State and federal appeals courts had heard the new evidence, and had let the conviction stand.
Harassing jurors and victims' families is an appalling practice, undoubtedly justified in the minds of death-penalty foes as one more tactic in fighting the good fight to save condemned criminals, one by one, as if each were an innocent victim rather than a convicted murder.
But Virginia makes itself especially and unnecessarily vulnerable to this line of attack, because its appeals process invites the temptation to use any means to win executive clemency.
In Virginia, new evidence of innocence cannot be considered in court unless a request for a hearing is made within 21 days of sentencing. If a videotape of someone else committing the crime should surface on day 22, the courts cannot consider it. The safety valve by which the innocent can be saved is the governor, who can commute a sentence.
So, rather than a court deciding - as it did in Payne's case - whether new evidence justifies setting aside a jury's verdict, the governor alone makes the call. Which makes decisions in capital cases all the more arbitrary, and introduces an intolerable danger of politicization. Not only is a murderer less likely to be executed if his victim was black (a statistical fact in America); he's also less likely to die if he has advocates who can muster enough publicity and political pressure.
Virginia should reform its appeals rules to allow new evidence to be heard in court, even if it surfaces years later - as DNA evidence has in several high-profile cases in the state.
This would not, of course, rule out every arbitrary aspect of the death penalty. But it would mark a reasonable step while we await the elimination, soon we hope, of capital punishment.
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