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Challenging NCIC Information can be a Matter of Life or Death

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Prosecutors commonly obtain National Crime Information Center (“NCIC”) reports of defendants’ criminal records.

A colleague recently pointed out the unfairness of judges rejecting attacks on NCIC reports, because he asserts that the FBI, which runs the NCIC, disclaims responsibility for accuracy in NCIC reports. Certainly, since the NCIC states that it relies on information provided by state and federal criminal databases nationwide, NCIC reports cannot be any more accurate than the people inputting the data that gets picked up by the NCIC system.

For Virginia cases, another lawyer — Lloyd Snook of Charlottesville’s Snook & Haughey — suggests reading the unpublished case of Argenbright v. Commonwealth, which he says affirmed a sentence that relied on an NCIC report to enhance a sentence for a third theft offense under Va. Code § 18.2-104, and also discussed Va. Code § 19.2-295.1. He suggested objecting to NCIC reports on the grounds of hearsay, due process, the Eighth Amendment, and statutory grounds;  to seek a continuance to check out each entry in the NCIC report; and to renew the NCIC report objection at trial, and in response to any preliminary sentencing report. Lloyd also talks of the need to redact from the jury’s view any charges that were entered nolle prosequi, and cites Byrd v. Commonwealth, 30 Va.App. 371, 517 SE 2d (1999). He argues for redaction of probation violations — citing Jaccard v. Commonwealth, 268 Va. 56, 597 S.E.2d 30 (2004) — and for redacting prison release dates.

Too bad Paul Warner Powell’s lawyers did not object to the jury’s seeing his NCIC report at the sentencing phase of his capital trial. On the one hand, his admitted murder was beyond heinous. On the other hand, the integrity of the capital punishment system — which, of course, has no integrity — is all the more suspect when the defendant’s lawyers are asleep at the wheel, particularly here where the NCIC report for Powell incorrectly indicated a prior capital murder conviction. Sadly, the Virginia Supreme Court, in a 4-3 opinion, denied his ineffective assistance of counsel claim nonetheless. Powell v. Virginia, ___ Va. ___ (2010). He is scheduled for state-sponsored murder-execution on March 18, 2010.

Praised be Virginia Supreme Court Justice Keenan, who wrote in part in his dissent:

I would hold that the jury’s receipt of incorrect information of such magnitude negates any reasonable. In my opinion, such a serious mistake in a capital murder case may well cause the public to question whether our courts adequately ensure the fair application of our death penalty statutes. When a jury has determined that a defendant should die for the commission of a heinous murder, the public should be able to have confidence that this determination was made without fundamental errors having occurred in the sentencing process. A central premise in support of the death penalty is that society exacts this penalty only in rare instances, and only after the penalty has been determined with full and fair adherence to constitutional, statutory, and evidentiary safeguards. Because those safeguards failed in this case when a very able prosecutor made an unintentional error, I would grant a writ of habeas corpus limited to the award of a new sentencing proceeding.

Powell v. Virginia, ___ Va. ___ (Keenan, J., dissenting).