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1998 SESSION

989216408
HOUSE BILL NO. 606
Offered January 21, 1998
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-- Plum, Almand, Darner, Melvin, Robinson, Van Landingham, Van Yahres and Woodrum
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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 under sentence of death, or whose sentence of death has been commuted to life imprisonment by the Governor, may at any time present a capital case bill of review as a civil proceeding, to the circuit court which entered the order fixing the prisoner's punishment at death provided the following conditions are met:

1. It is alleged in the bill of review 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. It is alleged in the bill of review that the evidence claimed to be newly discovered was not 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. It is alleged in the bill of review that the evidence claimed to be newly discovered is being presented to the court at the earliest practicable time following its discovery;

4. The bill of review contains a sufficient recitation of the evidence claimed to be newly discovered, together with a complete explanation of the reasons the evidence has not been previously discovered and presented to the court, for the court to determine whether there exists a basis to reopen the original case which resulted in the sentence of death;

5. The bill of review is filed with the court no less than sixty days prior to the scheduled execution.

A copy of the capital case bill of review shall be served upon the Attorney General of Virginia and the attorney for the Commonwealth for the county or city in which the original case resulting in the sentence of death was tried. The attorney for the Commonwealth shall represent the Commonwealth in such proceeding, but the Attorney General, in his discretion and with the consent of the attorney for the Commonwealth, may also appear on behalf of the Commonwealth.

B. If, upon review of the capital case bill of review and any pleadings filed in response by the Commonwealth, the court finds that the conditions of subsection A have not been met or that the evidence claimed to be newly discovered, if true, does not establish a significant probability of actual innocence, the court shall dismiss the bill of review without an evidentiary hearing.

C. If, pursuant to the provisions of subsection A, sufficient basis is found, the court shall hear the newly discovered evidence and such evidence as the Commonwealth may present in rebuttal. If the court, upon considering all such evidence, finds that there is a significant probability of actual innocence, it shall enter an order granting the bill of review.

D. The decision of the circuit court to grant or dismiss the bill of review may be appealed by the prisoner or the Commonwealth by the filing of 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 a new trial or grant such other relief as may be appropriate.

E. The provisions of this section shall apply notwithstanding any other provision of law or rule of court.