Trial of Capital Murder Cases in Virginia

Trial of Capital Murder Cases in Virginia
Publication Date: 2017
Available Formats: Print (526 pages, softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 869

Information

Content Highlights:
  • The Capital Murder Statute
  • Pretrial Procedures
  • Trial
  • The Penalty Trial
  • Case Histories
  • Aggravating and Mitigating Factors
  • Statutory Sections Used
  • Ineffective Assistance of Counsel Issues

“The Board of Governors of the Criminal Law Section of the Virginia State Bar conceived and authorized this book to serve as a legal reference providing guidance to defense counsel, prosecutors and trial judges. It focuses on events and issues peculiar to capital litigation, which year after year becomes increasing complex. Although primary attention is given to Virginia procedure, the reader is also alerted to the great number of federal issues that can arise in capital cases.”
- Professor Ronald J. Bacigal, co-author

If you handle criminal cases in Virginia where capital punishment is even a possibility, you should have this book. It is the only publication focusing primarily on Virginia capital litigation. This 2017 edition includes:

  • Coverage of the latest Virginia and federal appellate opinions dealing with capital cases
  • New and revised forms for motions and supporting memoranda of law
A unique feature of the book is the inclusion of tables organizing all capital cases according to the statutory section applied; the aggravation and mitigation evidence offered; and the applicable aggravator (i.e., vileness or future dangerousness).

In Cooperation With the Criminal Law Section of the Virginia State Bar. Assisted by a grant from the Virginia Law Foundation.



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Table of Contents

CHAPTER LIST

1. Introduction

2. The Capital Murder Statute

3. Pretrial Procedures

4. Trial

5. The Penalty Trial


CHAPTER 1: INTRODUCTION

1.1 PURPOSE

1.2 CONCEPT OF CRUEL AND UNUSUAL PUNISHMENT

1.3 PROCEDURAL ASPECTS OF THE EIGHTH AMENDMENT

1.4 SUBSTANTIVE ASPECTS OF THE EIGHTH AMENDMENT

1.5 EFFECT OF FEDERAL REVIEW ON TRIAL

1.6 FACTORS TO CONSIDER IN PRACTICE

CHAPTER 2: THE CAPITAL MURDER STATUTE

2.1 INTRODUCTION

2.2 WILLFUL, DELIBERATE, AND PREMEDITATED
        2.201 Premeditation
        2.202 Elements of Offense
        2.203 Time Between Formation of Intent and Act of Killing
        2.204 Other Evidence of Premeditation
        2.205 Difference Between Premeditated Aggression and Act of
        Impulsivity
        2.206 Jury Instructions
        2.207 Heat of Passion
        2.208 Effect of Voluntary Intoxication
        2.209 Effect of Diminished Capacity
        
2.3 “IN THE COMMISSION OF”

2.4 KILLING OF “ANY PERSON”

2.5 “TRIGGERMAN” (IMMEDIATE PERPETRATOR) RULE
        2.501 In General
        2.502 What Commonwealth Must Prove
        2.503 More Than One Immediate Perpetrator
        2.504 Constitutionality
        2.505 Use of Inconsistent Theories by Prosecution
        
2.6 SPECIFIC SUBSECTIONS OF SECTION 18.2-31
        2.601 Abduction: Section 18.2-31(1)
        2.602 Murder for Hire: Section 18.2-31(2)
        2.603 Murder by Prisoner: Section 18.2-31(3)
        2.604 Robbery: Section 18.2-31(4)
        2.605 Rape, Forcible Sodomy, Object Sexual Penetration:
        Section 18.2-31(5)
        2.606 Murder of Law-Enforcement Officer: Section 18.2-31(6)
        2.607 Simultaneous Murders: Section 18.2-31(7)
        2.608 Multiple Murders Within Three-Year Period: Section
        18.2-31(8)
        2.609 Drug-Related Murders: Section 18.2-31(9)
        2.610 Murder Pursuant to Continuing Criminal Enterprise:
        Section 18.2-31(10)
        2.611 Murder of Pregnant Woman: Section 18.2-31(11)
        2.612 Murder of a Person Under the Age of 14 by a Person Age
        21 or Older: Section 18.2-31(12)
        2.613 Murder of a Person During the Commission of an Act of
        Terrorism: Section 18.2-31(13)
        2.614 Murder of a Judge: Section 18.2-31(14)
        2.615 Murder of a Witness Under Subpoena: Section 18.2-31(15)

2.7 ADDING CAPITAL MURDER COUNTS TO THE INDICTMENT

CHAPTER 3: PRETRIAL PROCEDURES

3.1 INTRODUCTION

3.2 BAIL

3.3 PRELIMINARY HEARING
    3.301 No Right After Indictment
    3.302 Multiple Charges
    3.303 Testimony of Child Victims and Witnesses
    3.304 Admission of Preliminary Hearing Testimony of Witness
    Absent at Trial
    3.305 Preliminary Hearing Evidence Not a Substitute for Bill of
    Particulars
    
3.4 JOINDER AND SEVERANCE
    3.401 Joinder of Defendants
    3.402 Joinder of Offenses

3.5 PRETRIAL MOTIONS
    3.501 Motions That May Be Raised Pretrial
    3.502 Issues That Must Be Raised Pretrial

3.6 BILL OF PARTICULARS

3.7 MOTIONS IN LIMINE

3.8 MOTIONS TO APPOINT EXPERTS AND INVESTIGATORS

3.9 DISCOVERY
    3.901 Discovery Under Rule 3A:11
    3.902 Constitutional Discovery
    
3.10 ACCESS TO FORENSIC EVIDENCE

3.11 RECIPROCAL DISCOVERY BY COMMONWEALTH

3.12 COMPETENCE TO STAND TRIAL

3.13 INSANITY DEFENSE
    3.1301 Preliminary Evaluation
    3.1302 Notice
    3.1303 Evaluation by Commonwealth
    3.1304 Discovery by Commonwealth
    3.1305 Use of Sanity Evaluations at Guilt or Innocence Trial
    3.1306 Use of Mental Evaluations at Penalty Phase

APPENDIX 3-1: BAIL PAPERS

APPENDIX 3-2: WOLFE BOND MOTION

APPENDIX 3-3: MOTION TO DECLARE THE VIRGINIA CAPITAL
MURDER AND DEATH PENALTY STATUTES
UNCONSTITUTIONAL

APPENDIX 3-4: MEMORANDUM IN SUPPORT OF DEFENDANT’S
MOTIONS TO DECLARE THE VIRGINIA CAPITAL MURDER
AND DEATH PENALTY STATUTES UNCONSTITUTIONAL
AND TO PROHIBIT THE IMPOSITION OF THE DEATH
PENALTY

APPENDIX 3-5: MOTION FOR A BILL OF PARTICULARS UNDER
SECTION 19.2-230

APPENDIX 3-6: MOTION FOR A BILL OF PARTICULARS UNDER
SECTION 19.2-266.2

APPENDIX 3-7: MOTION TO ENJOIN LAW ENFORCEMENT
OFFICERS FROM WEARING UNIFORMS IN COURTROOM
WHILE SITTING AS SPECTATORS, OR GRANT OTHER
APPROPRIATE RELIEF

APPENDIX 3-8: MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO ENJOIN LAW ENFORCEMENT OFFICERS
FROM WEARING UNIFORMS IN THE COURTROOM AS
SPECTATORS

APPENDIX 3-9: MOTION FOR APPOINTMENT OF QUALIFIED
EXPERTS

APPENDIX 3-10: MOTION FOR APPOINTMENT OF EXPERT
INVESTIGATOR

APPENDIX 3-11: MEMORANDUM IN SUPPORT OF MOTION FOR
APPOINTMENT OF AN EXPERT INVESTIGATOR

APPENDIX 3-12: MOTION FOR EX PARTE HEARING (EXPERTS)

APPENDIX 3-13: ATTORNEY AFFIDAVIT FOR MOTION FOR
EX PARTE HEARING (EXPERTS)

APPENDIX 3-14: MOTION FOR APPOINTMENT OF AN EXPERT
ON CONDITIONS OF INCARCERATION

APPENDIX 3-15: MEMORANDUM IN SUPPORT OF MOTION
FOR APPOINTMENT OF AN EXPERT ON CONDITIONS
OF INCARCERATION

APPENDIX 3-16: MOTION FOR DISCOVERY AND INSPECTION

APPENDIX 3-17: MEMORANDUM IN SUPPORT OF DISCOVERY
MOTION

APPENDIX 3-18: REQUEST FOR FORENSIC ANALYSIS
(MOTION FOR TESTING OF HUMAN HAIR)

APPENDIX 3-19: ORDER DIRECTING FORENSIC ANALYSIS
(TESTING OF HUMAN HAIR)

APPENDIX 3-20: MOTION TO DECLARE ALIBI PROVISION
UNCONSTITUTIONAL

CHAPTER 4: TRIAL

4.1 RIGHT TO FAIR TRIAL

4.2 RIGHT TO PUBLIC TRIAL
    4.201 Scope of Right
    4.202 Defendant’s Presence During Trial
    
4.3 JURY SELECTION
    4.301 Selection of the Array
    4.302 Statutory Challenges
    4.303 Constitutional Challenges

4.4 SELECTION OF THE PETIT JURY
    4.401 Voir Dire
    4.402 Challenges for Cause
    4.403 Peremptory Challenges

4.5 CHANGE OF VENUE

4.6 ENTERING A GUILTY PLEA

APPENDIX 4-1: MOTION FOR CHANGE OF VENUE

APPENDIX 4-2: MEMORANDUM IN SUPPORT OF MOTION FOR
CHANGE OF VENUE

APPENDIX 4-3: MOTION FOR INDIVIDUAL AND SEQUESTERED
VOIR DIRE

APPENDIX 4-4: MEMORANDUM IN SUPPORT OF MOTION FOR
INDIVIDUAL AND SEQUESTERED VOIR DIRE

APPENDIX 4-5: MOTION FOR ADDITIONAL PEREMPTORY
CHALLENGES

APPENDIX 4-6: MEMORANDUM IN SUPPORT OF MOTION FOR
ADDITIONAL PEREMPTORY CHALLENGES

APPENDIX 4-7: MOTION TO DISMISS JURY AND RE-IMPANEL
VENIRE

CHAPTER 5: THE PENALTY TRIAL

5.1 INTRODUCTION
    5.101 Conviction of Capital Murder and Noncapital Offense
    5.102 Convictions on Two Separate Capital Murder
    Indictments
    5.103 Admissibility of Evidence Generally
    5.104 No Instruction on Lingering Doubt as to Guilt
    5.105 Evidence of Guilt or Innocence
    5.106 Inconsistent Verdicts at Guilt Phase
    5.107 Evidence of Guilt or Innocence
    5.108 Change in the Law
    5.109 Appearance of Defendant in Prison Clothes or Shackles

5.2 “ELIGIBILITY” AND “SELECTION” PHASES
    5.201 Eligibility Phase
    5.202 Selection Phase

5.3 AGGRAVATING FACTORS
    5.301 Vileness
    5.302 Future Dangerousness
    5.303 Victim Impact Evidence
    5.304 Victims’ Statements

5.4 MITIGATION
    5.401 Statutory Factors
    5.402 Nonstatutory Factors

5.5 EXCLUSION OF MITIGATING EVIDENCE
    5.501 Irrelevant Evidence
    5.502 Mental Health Evidence

5.6 INSTRUCTIONS CONCERNING PAROLE ELIGIBILITY

5.7 JURY INSTRUCTIONS AND VERDICT FORMS

5.8 CLOSING ARGUMENT
    5.801 Appeals to Emotions
    5.802 “Send a Message” Arguments
    5.803 Information on the Appellate Process
    5.804 Religious Arguments

5.9 DEFENDANT’S PRESENCE DURING JURY
DELIBERATIONS

5.10 POLLING THE JURY

5.11 IMPEACHING THE JURY’S VERDICT

5.12 POST-SENTENCE REPORTS

5.13 RESENTENCING HEARINGS

APPENDIX 5-1: SAMPLE JURY VERDICT FORMS

APPENDIX 5-2: MOTION TO DECLARE THE “CONTINUING
THREAT” AGGRAVATING FACTOR UNCONSTITUTIONAL
IN LIGHT OF LAWLOR V. COMMONWEALTH

TABLE I: CASE HISTORIES

TABLE II: AGGRAVATION AND MITIGATION EVIDENCE

TABLE III: CASES BY AGGRAVATOR

TABLE IV: STATUTORY SECTIONS USED

TABLE V: INEFFECTIVE ASSISTANCE OF COUNSEL ISSUES

Authors

Authors

Professor Ronald J. Bacigal, University of Richmond School of Law / Richmond (Expand/Collapse Bio)

Professor Ronald J. Bacigal received his law degree from Washington and Lee University, followed by graduate study at The Hague as a Fulbright Scholar. He has been a visiting professor at Duke Law School and Washington and Lee. He served as chairman of the Criminal Law section of the Association of American Law Schools and is a member of the National Judicial College faculty. He also serves as Reporter of Criminal decisions for the Virginia Court of Appeals.

Jonathan P. Sheldon, Sheldon, Flood & Haywood PLC / Fairfax (Expand/Collapse Bio)

Jonathan P. Sheldon is a founding partner of Sheldon, Flood & Haywood PLC and focuses his work on appeals and post-conviction in the state and federal courts. Mr. Sheldon served as Chair of the Virginia State Bar’s annual conference on how to defend a capital murder case from 2012-2015. His other publications include “Post-Conviction Remedies in Virginia,” Virginia Law and Practice: A Handbook for Attorneys, Virginia CLE 2016; “How To Deal With A Judge’s Interference At Trial,” The Champion 2016; “Ethical Implications of Modifying LI Protocols,” PLoS Medicine 2008; “Chemical Asphyxiation?” PLoS Medicine 2007; “Can Lethal Injection Be ‘Fixed’?” The Lancet 2007; and “Inadequate Anesthesia for Lethal Injection” The Lancet 2005. Mr. Sheldon received a B.S. in Mathematics in 1987 from University of Massachusetts and a J.D. in 1995 from William & Mary Law School.

Joseph T. Flood, Sheldon, Flood & Haywood PLC / Fairfax (Expand/Collapse Bio)

Joseph T. Flood has been a capital attorney for a quarter of a century and has litigated death penalty cases in more than a dozen states. Mr. Flood has worked for the NAACP Legal Defense Fund and the Equal Justice Initiative of Alabama, and after helping win abolition of the death penalty in New York, as the Deputy Capital Defender for the New York State Capital Defender Office, he accepted appointment to become the Capital Defender in Virginia. Mr. Flood has been in private practice since 2009 and is a founding partner of Sheldon, Flood & Haywood PLC. He focuses his work on capital trials, terrorism prosecutions, and other complex criminal litigation. He is a program attorney with the Mexican Capital Legal Assistance Program, which provides free consultation and representation of Mexican nationals charged with death-eligible offenses in the United States. Mr. Flood graduated from the University of Wisconsin-Eau Claire in 1988, earning a B.A. in both Psychology and History. He received his J.D. from the University of Wisconsin Law School in 1992.

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