The "21-Day" Rule isn't Relevant to Söring's Case

Another post brought to you by the Bullshit Asymmetry Principle, aka Brandolini's Law.

One of the standard elements in Jens Söring’s Gish Gallop (“a rhetorical technique in which a person in a debate attempts to overwhelm their opponent by providing an excessive number of arguments with no regard for the accuracy or strength of those arguments”) of supposed problems with his conviction is Virginia’s “21-Day Rule”. He delivers an exaggerated, dramatic explanation of the rule, then suggests it prevented him from proving his conviction was wrongful.

True believers in the audience wring their hands and think to themselves: “In Virginia, you can only bring in new evidence of your innocence within 21 days of your trial! How brutal and cynical these Americans are.” More judicious listeners think: “Wait, can that really be the case? I read news articles about people winning new trials based on new evidence all the time, even in Virginia. Something can’t be right with what Söring is saying.”

And indeed something isn’t right. Let’s clear up the confusion once and for all.

The 21-day rule in Virginia is set out in Rule 1:1 of the Rules of the Supreme Court of Virginia (which apply to all courts and cases): “All final judgments, orders, and decrees, irrespective of terms of court, remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” In criminal cases, the rule begins to run as of the date the defendant is sentenced, since the criminal case cannot be considered “final” until that has happened. Söring was convicted on 22 June 1990. He was sentenced two and a half months later, on 5 September 1990. As of 5 September 1990, the 21-day-rule began to apply.

So what does the 21-day-rule mean? It means that if you want to challenge the trial court’s judgment in a criminal case, you have to do so within 21 days of sentencing. You generally do this by filing a “motion for reconsideration” – i.e., you tell the court: “Court, you reached the wrong decision, please overturn the jury’s verdict and set me free. Here is why you should do so:” You then list the reasons you think your trial and/or sentencing were unfair.

Of course, courts almost never grant these motions (whether in Germany or the USA), because they have just spent a great deal of money and time to hold a complex criminal trial. They’re hardly going to throw that all aside because of a few minor mistakes — that’s what courts of appeal are for. To get a trial judge to agree to cancel a verdict she just entered after a thorough trial, you’ll need compelling proof not just that your trial was flawed (every trial is flawed), but that your trial certainly reached the wrong result. An example would be new videotape someone found which shows a guy named Johnny, not you, committing the crime.

What if your lawyer learns of the videotape of Johnny committing the crime for the first time 22 days after Johnny was sentenced? Well, then you cannot go to the trial court and say: “Hey trial court, please cancel the outcome of my trial”. That’s because the trial court no longer has control of the case, because it’s been more than 21 days.

Does this mean you never get to have a court look at the videotape of someone else committing the crime? No. All it means is that you will have to wait to introduce this evidence during your regular appeals. Even after 21 days, you still have the right to file a direct appeal (Revision), and a habeas corpus appeal (Wiederaufnahmeverfahren). You can introduce the Johnny videotape in your habeas corpus appeal, and if it is truly what you say it is, the court will indeed vacate your conviction and grant you a new trial, or just set you free. However, you will have to wait years to file the habeas corpus appeal. Further, you will have to prove that there was no way you could have found the videotape before the 21-day deadline elapsed.

So the 21-day rule can have an unfair effect, but only when defendants:

1. Discover compelling, 100% proof of their innocence;

2. Which is not DNA evidence — that can be introduced long after 21 days, and

3. Without any fault of their own, find the evidence more 21 days after they have been sentenced in trial court, but long before they get to file an appeal.

The unfair effect is not that they never get to introduce the evidence to any court. The unfair effect is that instead of being able to run right back to the original trial court and get justice quickly, they will have to wait for the normal appeals process to submit their videotape of Johnny committing the robbery. This does happen occasionally, which is why the Washington Post wrote a 2012 editorial arguing that the 21-day rule “needs to go”. The editorial described a case in which the victim recanted her rape accusation, but did so only after 21 days. The result was that the unfairly-convicted defendant would have to “have to wait for a hearing by the Court of Appeals” on the new evidence, “which could take weeks or months”.

None of this is relevant to Söring’s case for several reasons.

1. There was a period of about 10 weeks after Söring was convicted but before he was sentenced. During all this time, his case was still open, and he could have gone back to the trial court with new evidence of innocence. His time window only closed on the 26^th of September, 1990.

2. The only time the 21-day rule causes real injustice is if you have new evidence which actually proves you are innocent, but only after the deadline. This is incredibly rare, both in the USA and Germany.

3. What about other arguments? Maybe the prosecution made an unfair comment, or the defense lawyer didn’t discover a certain piece of evidence, or the judge let the jury hear something they shouldn’t. These are ordinary appeals claims – the kind of thing defendants raise in every appeal. You can raise these arguments before courts, but you raise them before appeals courts (Berufung bzw. Revisionsgerichte). You have to wait your turn just like all other prisoners. After all, the trial court just spent a huge amount of time and effort to find you guilty. Maybe there were mistakes, but many mistakes aren’t serious enough to warrant a new trial. The appeals court will decide this; that’s what they’re for.

4. Söring was never unfairly affected by the 21-day rule. First, he has never located a smoking-gun bombshell piece of evidence proving his innocence, and never will. When he’s asked to describe what “new evidence” he wasn’t allowed to bring to the trial court’s attention, he gestures at some footprint photograph or fingerprint cards or something. I can’t be bothered to actually look it up because whatever it is, it is not the bombshell proof of innocence likely to convince a trial court to re-do a trial which had just cost the taxpayers of Virginia millions of dollars.

5. Söring had every right to file normal appeals and filed every appeal he was legally entitled to. He filed a direct appeal which was denied in 1991, then he filed a habeas corpus appeal which went all the way to the Supreme Court of Virginia and then all the way through the US federal courts to the Supreme Court of the United States (none of these decisions even mentioned the 21-day rule, by the way). Söring even filed a second habeas corpus appeal. During these appeals, he was free to introduce any new evidence he thought was relevant to his case, and he did just that.

So there you have the answer. The 21-day rule argument is just another example of the ‘Söring Syllogism’:

1. There is an unfair rule in the law of the USA/Virginia.

2. I was tried in Virginia, in the USA.

3. Therefore, my trial was unfair.

You don’t have to be Gottlob Frege to spot the missing step in this syllogism. In fact, all you have to do is possess a little common sense, plus the will to use it.

Sorry this post was so long, but once again, I cite in my defense Brandolini’s law: It takes 10 times longer to refute bullshit than it does to create it.