several references to the strength of the evidence needed to be produced to sustain such a claim. See Schlup, 513 U.S. at 316, 115 S.Ct. 851. (stating that "the evidence of innocence would have had to be strong enough to make his execution ‘constitutionally intolerable’ even if his conviction was the product of a fair trial.”) The Schlup Court stated that the new facts would have to unquestionably establish the person's innocence. See id. at 317, 115 S.Ct. 851 (“[i]f there were no question about the fairness of the criminal trial, a Herrera-type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish [the habeas petitioner’s] innocence.”) 8 . See, e.g., Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609, 621 (1990) (<HOLDING>). The same DNA tests used to help convict
holding in attempted murder case that testimony regarding victims medical prognosis properly admitted holding double jeopardy did not prohibit capital prosecution of defendant who pled guilty to seconddegree murder and agreed to testify against codefendants but violated plea agreement by refusing to testify at retrial and state properly sought new indictment for capital murder resulting in death sentence imposed at trial for firstdegree murder holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill holding any error in admitting allegedly irrelevant testimony that the defendant loved music was harmless in capital murder prosecution where the defendant admitted killing the victim and evidence supported the conviction holding that the dna tests were properly admitted a jury trial which resulted in spencers capital murder conviction