Capital Offense Conviction Appeals Process
After a defendant is convicted of capital
murder and sentenced to death at trial, the appellate
process begins. For survivors of the defendant's victim,
it may seem like an endless process. However, these
appeals do follow an established process and typically
take approximately 5 to 6 years from time of conviction
to execution of the death sentence.
A capital conviction and death sentence normally is
reviewed both in state court and then federal court.
Once the appellate process begins, the interests of
the Commonwealth and of the victim are represented by
the Virginia Attorney General's Office in Richmond.
The chronology of this litigation is as follows:
I. State Court:
a- Direct Appeal
b- State Habeas Corpus
II. Federal Court:
a- Federal District Court
b- United States Court of Appeals for the Fourth Circuit
c- United States Supreme Court
III. Executive clemency
I. State Court:
A defendant who is sentenced to death is entitled to
an automatic appeal to the Supreme Court of Virginia.
At this point, the defendant is called the "appellant"
and the Commonwealth is called the "appellee."
The record of the trial, including all papers filed
in the trial court, the physical evidence presented
at trial and a written record of all trial testimony
is compiled and filed in the Supreme Court of Virginia.
The defendant's attorney then files a brief in which
it is argued that error occurred during the trial and
that the defendant's conviction and/or death sentence
should be reversed. The Attorney General's Office will
file a brief for the Commonwealth responding to the
defendant's allegations of error. The defendant then
may file a reply brief. After all briefs have been filed,
the Supreme Court of Virginia will schedule the case
for oral argument.
Oral argument is very formalized, with each side having
thirty minutes to discuss what happened in the lower
court and whether it warrants reversal of the conviction
or death sentence. No new evidence or facts not appearing
in the record of trial can be presented to the Supreme
Court of Virginia. The defendant, of course, will be
represented by his or her attorney, and the Commonwealth
will be represented by an Assistant Attorney General.
Oral arguments are held in Richmond,
are open to the public, and you are welcome to attend.
Defendants are not brought to court for oral argument
although members of the defendant's family are permitted
Appellate courts, however, do not announce their decisions
at the conclusion of the oral argument. A decision by
the Virginia Supreme Court can be expected in approximately
Based on its resolution of the claims, the Court affirms
or reverses the conviction, the sentence or both. If
the defendant's conviction or sentence is reversed,
the case is returned to the trial court. In such cases,
the Commonwealth's Attorney will take over the case
again and make any further decisions regarding re-prosecution
or resentencing. If the Court affirms the conviction
and sentence, the defendant usually petitions the United
States Supreme Court for what is known as "certiorari"
The defendant, now called "the petitioner,"
files a petition for a writ of certiorari in the United
States Supreme Court in Washington, D.C., asking the
Court to review the case and arguing that his federal
constitutional rights were violated by the trial court
or the Supreme Court of Virginia.
The Commonwealth, called "the respondent,"
files a "brief in opposition" responding to
the petition. The Commonwealth argues that there is
no reason for the Supreme Court to review the defendant's
case because the case is of limited importance or because
the defendant's constitutional rights were not violated.
In the vast majority of cases, the Supreme Court refuses
to hear the case and, with a short written order, denies
the defendant's petition. At this point, the defendant's
direct appeal is complete.
State Habeas Corpus:
A death-sentenced defendant also is entitled to seek
state habeas corpus review, which is basically just
an additional appeal, differing from the direct appeal
described above in that the defendant may raise claims
based on facts outside the trial record. In Virginia,
the range of claims available to be raised in the state
habeas process is quite limited, and a petitioner may
raise only claims which could not have been raised on
direct appeal. In addition, the petition cannot contain
any claims which were pursued during the direct appeal.
Claims generally ripe for review in state habeas corpus
are allegations of errors by the prisoner's trial counsel.
State habeas review begins when the defendant, now called
"the petitioner," files a petition for a writ
of habeas corpus in the Supreme Court of Virginia. This
petition must be filed in the Virginia Supreme Court
within 60 days after the United States Supreme Court
denies certiorari after direct appeal.
In the petition, the prisoner again presents claims
in which it is argued that his conviction and/or sentence
are unlawful or were obtained in violation of his constitutional
rights. The Commonwealth, or "respondent,"
answers the application, specifically refuting the petitioner's
claims and arguing that no error occurred in either
the guilt-innocence or punishment phases of the trial.
The Supreme Court of Virginia reviews the petition and,
in nearly all cases, decides the case without an evidentiary
hearing. If the Supreme Court of Virginia decides a
hearing is necessary to properly resolve the petitioner's
claims, the hearing is held in the circuit court where
the prisoner was convicted, ordinarily before the same
judge who presided at the trial. The petitioner will
be present at any hearing ordered to be held on a habeas
corpus petition. Such hearings are open to the public.
The trial court reviews the claims, makes findings of
fact and conclusions of law regarding those claims,
and recommends to the Supreme Court of Virginia that
it either grant or deny relief. Only the Supreme Court
of Virginia, however, can make the final decision upholding
or overturning the petitioner's conviction and/or sentence.
As with the direct appeal, the prisoner can petition
the United States Supreme Court for certiorari review
after denial of his state habeas action, although this
is extremely rare. At this point, the Attorney General's
Office seeks an execution date by notifying the trial
court that the prisoner has completed his state habeas
review. The trial court must hold a hearing within 10
days after receiving the notice, and must set an execution
date for a date within sixty days after the hearing.
This date, in almost all instances, will be stayed by
a federal court while the prisoner seeks federal habeas
II. Federal Court-
Federal District Court:
Federal habeas review follows state habeas
review. It is initiated when the prisoner requests that
the United States District Court stay his execution
date and appoint him counsel to file a federal habeas
petition on his behalf. The federal district court will
appoint counsel and allow counsel several months to
file the petition. Here, the prisoner is called "the
petitioner," and the Commonwealth is called "the
In the petition filed in the United States District
Court, the defendant argues that the conviction and/or
sentence should be overturned because the conviction
was obtained in violation of the defendant's federal
constitutional rights. In its answer, the Commonwealth
responds to each of the defendant's claims, arguing
that relief must be denied and the conviction and sentence
Normally, the Commonwealth urges alternative
bases for denying relief, including (1) various procedural
bases, for example that a claim is foreclosed because
the defendant did not object at trial or because the
claim relies on a rule that is inapplicable in federal
review, and (2) that the defendant's constitutional
rights were not violated.
The record of all the previous state court
proceedings, including the trial, direct appeal, and
state habeas action, are filed in the United States
District Court. In rare instances, the United States
District Court holds a hearing to resolve some or all
of the prisoner's claims. Such hearings are held before
a single district court judge. They are open to the
public. The petitioner is also entitled to be present.
Federal law requires that the federal
courts give considerable deference to the earlier decisions
of the state courts in rejecting a prisoner's claims.
For this reason, successful federal habeas petitions
United States Court of Appeals for the Fourth Circuit:
Once the district court has disposed of a habeas case,
the losing side can appeal to the United States Court
of Appeals for the Fourth Circuit.
The losing side, now called "the appellant,"
files a legal brief explaining why the district court's
decision was wrong. The prevailing party, called the
"appellee," files a brief arguing that the
district court's decision was correct. In death penalty
cases, the Fourth Circuit will require both sides to
present oral argument. This argument is usually, but
not always, held in Richmond. Prisoners do not attend
oral argument in the Fourth Circuit.
Appellate proceedings in the Fourth Circuit are conducted
much like those in the Supreme Court of Virginia, except
a panel of three judges decides the case first, with
possible reconsideration later by the full court. Full
court reconsideration, however, is rare.
United States Supreme Court:
When the Fourth Circuit has finished with a federal
habeas appeal, the losing side can petition the United
States Supreme Court for certiorari review. As with
certiorari after the direct appeal, the Supreme Court
rarely agrees to hear and consider such cases.
If the Commonwealth prevails in
the Fourth Circuit, the Attorney General's Office will
ask the trial court to set an execution date. Absent
executive clemency or action by the United States Supreme
Court, the execution is carried out on the date set
by the trial court.
III. Executive Clemency
Executive clemency is the power of the Governor to grant
full or conditional pardons, reprieves of executions
and commutations of sentences. It is initiated when
the prisoner files a petition for executive clemency
directly with the Governor. After reviewing the petition
and fully acquainting himself with the facts of the
case, the Governor grants or denies clemency.
Executions in Virginia are ordinarily set for 9:00 p.m.
and take place at the Greensville Correctional Center
in Jarratt, Virginia. The inmate has the option of choosing
to be put to death in the electric chair or by lethal
injection fifteen days prior to the date of execution.
If they do not choose, the latter is used.
As a member of the victim's family, you may request
to witness the execution, although doing so is purely
voluntary on your part. Advance approval must be obtained
from the Virginia Department of Corrections and the
Victim Notification Program of the Virginia Office of
Attorney General is available to assist you in making
such a request.
(Special thanks to the Virginia
Office of Attorney General, Victim Notification Program
for contributing this overview).