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2001 SESSION

012300460
SENATE BILL NO. 1134
Offered January 10, 2001
Prefiled January 10, 2001
A BILL to amend the Code of Virginia by adding in Article 4.1 of Chapter 15 of Title 19.2 a section numbered 19.2-264.6, relating to capital case bills of review.
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Patrons-- Marsh, Maxwell and Ticer
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Article 4.1 of Chapter 15 of Title 19.2 a section numbered 19.2-264.6 as follows:

§ 19.2-264.6. Capital case bill of review.

A. A prisoner who is sentenced to death, or whose sentence of death has been commuted to life imprisonment by the Governor, may file, no more than once, a petition for a capital case bill of review with the circuit court that entered the order fixing the prisoner’s punishment at death. Such petition may be filed at any time. The petition for a capital case bill of review shall contain the following provisions:

1. That there exists newly discovered evidence that establishes a significant probability that the prisoner is actually innocent of the crime for which the death sentence was imposed;

2. That the evidence claimed to be newly discovered was not known and reasonably could not have been known by the prisoner or his trial counsel at the time the prisoner was tried upon the charge resulting in the sentence of death;

3. A detailed description of the evidence claimed to be newly discovered; and

4. A complete explanation of the reasons the evidence was not previously discovered and presented to the court.

A copy of the petition for a capital case bill of review shall be served forthwith upon the attorney for the Commonwealth for the county or city in which the original case resulting in the sentence of death was tried and on the Attorney General of Virginia. The attorney for the Commonwealth shall represent the Commonwealth in such proceeding. The Attorney General, in his discretion and with the consent of the attorney for the Commonwealth, may also appear on behalf of the Commonwealth. The attorney for the Commonwealth shall file any responsive pleadings within twenty-one days following service of the petition for a capital case bill of review.

B. Upon review of the petition for the capital case bill of review and any pleadings filed in response by the attorney for the Commonwealth, the circuit court may:

1. Grant the capital case bill of review if it determines that the petition complies with the provisions of subsection A and that the allegations of the petition establish a substantial likelihood of actual innocence; or

2. Dismiss the petition for the capital case bill of review if it determines that the petition fails to comply with the provisions of subsection A or that the allegations of the petition do not establish a substantial likelihood of actual innocence.

C. The decision of the circuit court to grant or dismiss the bill of review may be appealed by the prisoner or the Commonwealth by filing a petition for appeal in the Supreme Court within thirty days of the decision of the circuit court. If the decision of the circuit court to grant the bill of review is not appealed by the Commonwealth or is affirmed on appeal, the circuit court shall order such relief as may be appropriate, which may include vacating the conviction or granting a new trial or sentencing proceeding. The attorney for the Commonwealth may present evidence in any proceeding held pursuant to this section.