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As Virginia prepares to release a man it once planned to execute, some

Day of Judgment

When Earl Washington Jr. is released from the Virginia prison system next month and begins a new life in Virginia Beach, critics of the death penalty will point to him as a textbook example of a broken system. The story of how this dirt-poor, mentally retarded farmhand landed on death row—and found his way out 18 years later—could prompt significant changes to capital punishment in Virginia. In a state second only to Texas for putting criminals to death over the past quarter-century, efforts are underway to give inmates access to post-conviction DNA testing and to relax Virginia's toughest-in-the-nation restriction on introducing new evidence after sentencing. A legislative watchdog group will examine whether the death penalty is imposed fairly. Several lawmakers have proposed suspending executions until the study is completed. There's even a proposal—from a conservative Republican—to abolish the death penalty. "I think our legislators are very concerned about how close we came to executing an innocent man," says Henry Heller, executive director of Virginians for Alternatives to the Death Penalty.
The Aftermath The case of Earl Washington Jr., a former death-row inmate exonerated by DNA evidence, has helped spur the broadest reexamination of capital punishment in Virginia in decades. Here are some laws, issues and bills being studied. The 21-Day Rule: This Virginia rule, the nation's most restrictive, prohibits introduction of new evidence in a case if it comes more than 21 days after sentencing. Proposals in the General Assembly and the Virginia Supreme Court would extend or remove the time limit for death-row prisoners who produce new evidence of innocence. DNA Evidence: The State Crime Commission has proposed legislation requiring the preservation of DNA evidence and allowing convicted inmates to use such evidence in court to prove their innocence. Death-Penalty Study: The Joint Legislative Audit and Review Commission, a legislative watchdog agency, is studying whether the death penalty is applied fairly in Virginia. Moratorium: Del. Harvey Morgan, R-Gloucester, and Sen. Henry Marsh, D-Richmond, have submitted bills to suspend executions while the JLARC study is under way. Informed Juries: Del. Robert Marshall, R-Manassas, has introduced a bill allowing juries in capital cases to be told what happened to Washington—that a man who came close to being executed was later proven innocent. Abolition: Del. Frank Hargrove, R-Hanover, has submitted a bill to abolish capital punishment.
Washington, 40, who has an IQ between 57 and 69, is incapable of grasping the nuances of the death-penalty debate. But his case embodies nearly all the factors that critics cite as red flags for a wrongful conviction: factors of race, income, mental capacity and quality of legal counsel, among others. He is a black man accused of raping and murdering a white woman. He was tried by a mostly white jury. He is indigent and of limited intelligence. A federal appeals court found that he had inadequate counsel. He was convicted largely on the basis of a confession that he later recanted and that critics say was coerced. Appeals courts seemed unresponsive to evidence that the trial was flawed. And Washington ultimately won his freedom from the governor on the strength of compelling scientific evidence that couldn't be admitted in court. When then-Gov. L. Douglas Wilder commuted Washington's death sentence to life imprisonment in 1994, few seemed happy with the decision. The police and prosecutors who put him on death row wanted him executed. His defense team felt the evidence warranted a full pardon. Wilder complained that the case belonged in the courts, not in the governor's office. Many of those troubled by the case focused on Virginia's 21-day rule. It prohibits introduction of new evidence in a case if it comes more than 21 days after sentencing—even if it proves innocence. It is the most restrictive such rule in the nation. "Evidence of innocence is irrelevant," former Attorney General Mary Sue Terry once wrote in the state's reply to a death-row prisoner's appeal. Del. Clifton Woodrum, D-Roanoke, introduced a bill in the 1994 General Assembly to ease the rule. Washington's lawyers referred to it as the "Earl Washington bill." Wilder lobbied for it after he left office. "I thought if you had evidence of actual innocence, you should be able to introduce it as a matter of right rather than leave it up to the uncertain fate of the executive," Woodrum says. Woodrum came to the debate not as a death penalty opponent, but as a supporter who thought the system was flawed. "There's no such thing as a perfect system," he says. "But when we're administering the supreme penalty, we have an obligation to make it as close to perfect as we can. The system is supposed to be designed to protect the innocent." But the bill died in the Senate, the first of what became almost annual failures to reform the 21-day rule. Del. James Almand, D-Arlington, has sponsored the measure in the past four legislative sessions. Last year, the House of Delegates set a three-year limit for the introduction of new evidence. But the Senate reduced it to 45 days. Dissatisfied, Almand pulled the bill off the floor. The proposal is back this year. Meanwhile, the Virginia Supreme Court last fall proposed removing the time limit entirely for death-row prisoners who produce new evidence that establishes a "substantial likelihood" of innocence. The court has the authority to change the rule—unless overridden by the legislature. The court solicited public comment but has not yet said what it will do. State Sen. Kenneth Stolle, R-Virginia Beach, is sponsoring a proposal fashioned by the State Crime Commission, which he heads, requiring the preservation of DNA evidence and allowing a prisoner to use DNA to prove his innocence. Of 140 lawmakers, 132 have endorsed it. The Joint Legislative Audit and Review Commission, a legislative watchdog agency, agreed last fall to undertake a yearlong study of whether the death penalty is applied fairly in Virginia. Among the potential issues: racial and regional disparities in imposing the penalty, the adequacy of legal representation, and execution of the mentally retarded and those who were under 18 at the time of their crimes. Del. Harvey Morgan, R-Gloucester, and Sen. Henry Marsh, D-Richmond, have submitted bills to suspend executions while the JLARC study is under way. Del. Robert Marshall, R-Manassas, has introduced a bill allowing juries in capital cases to be told what happened to Washington—that a man who came close to being executed was later proven innocent. And Del. Frank Hargrove, R-Hanover, who heads the Joint Republican Caucus, has submitted a bill to abolish capital punishment. Hargrove, a lawmaker since 1982, says he is a longtime supporter of the death penalty, but "I've never really been satisfied I was doing the right thing." He says he has now decided that the risk of executing an innocent man is too great, and that life without parole is sufficient punishment for even the most heinous crimes. The Washington case, he says, "points up the possibility of awful mistakes." Since introducing the bill, Hargrove says, "I've had lots of people say, 'Frank, it's terrible politically. It's suicide.' I say, 'Well, if it is, I'll just have to die by it because I feel better that I've done it.' " Morgan, a co-sponsor of Hargrove's measure, says he, too, is a former death-penalty advocate who changed his mind after long agonizing. Morgan is not optimistic about the bill's chances in this election year. "A lot of people aren't going to be willing to step out and make a stand on it," he says. Yet he senses that public opinion on the issue is shifting: "I think you'll find a lot of people are not so keen on the death penalty as they used to be." Virginia's top elected leaders remain committed to capital punishment. Gov. Jim Gilmore has resisted calls for a moratorium on executions, though fellow Republican Gov. George Ryan of Illinois imposed a moratorium last year. Ryan's longtime support for capital punishment was shaken by the case of Anthony Porter, who came within two days of execution before being exonerated after 18 years by the investigative work of college journalism students. "The fact that Earl Washington is no longer sitting on death row seems to me to say that the system is working," says Walter Felton. As counsel to Gilmore, Felton was involved in the deliberations that led to Washington's pardon. "Whether or not the system could work better is a different question," Felton adds, signaling that Gilmore might be receptive to some of the reform efforts being floated in Richmond. "I think you can always improve any system." Attorney General Mark Earley, a Republican campaigning to succeed Gilmore as governor, has taken a similar stance. "The attorney general ... intends to be part of the solution to tweaking the system so that all the appropriate safeguards and deferences are provided to those that have legitimate appeal claims," says David Botkins, Earley's spokesman. "Is that an admission that the system is broken? Absolutely not." Earley has opposed lifting the 21-day rule as proposed by the state Supreme Court, arguing that it would encourage a flood of frivolous appeals and might be unconstitutional. "We still need to have closure," Botkins says. "We still need to have deference to crime victims and their families, and we still need to have finality." As for Earl Washington, "he wasn't executed," Botkins says. "Ultimately, at the end of the day, the right thing was done." Stephen Rosenthal, who as attorney general in 1993 was the first state official to order DNA testing in the Washington case, says the case has not shaken his faith in the death penalty. "I think it's terrible that he had to spend that much time in prison, but I'm grateful to see that the system did acknowledge what this new technology can do and he'll be out," says Rosenthal, now a lawyer in private practice in Richmond. "I wouldn't say that the Earl Washington case shows the whole system is broken. Indeed, I think it shows that the system is ultimately flexible and can adapt to new technologies and changes." Rosenthal says he's heartened by the current efforts to reform the 21-day rule and guarantee access to DNA testing. He also would like to see Virginia improve the compensation of lawyers representing indigent defendants in capital cases. The state ranks last among the 50 states in compensation of court-appointed attorneys. In theory, better pay might entice more highly skilled lawyers to defend indigents on trial for crimes. Woes of capital punishment reject the view that the Washington case represents an aberration in an otherwise fair and well-run system. "One of the horrific messages about Earl's case is that it really isn't all that aberrant. It could happen again," says Marie Deans, a prisoner-rights activist who took up Washington's cause 15 years ago. "I think what his case did is demonstrate how this thing works, how many pitfalls there are, where the gaps in the net are. And they can't fix it," Deans says. Gerald Zerkin, one of Washington's attorneys, says the system failed at nearly every juncture. When Washington was only days away from execution in 1985, Zerkin points out, it was not the system that saved his life. It was the intervention of Deans and a fellow death-row inmate, Joseph Giarratano, who found an appeals lawyer for Washington. Testimony in a civil-rights lawsuit filed by Giarratano clearly showed how close Washington's brush with death was. James Kulp, an assistant attorney general, was asked on cross examination: "If you didn't hear from Mr. Washington, you were going to execute him whether he had a lawyer or not, isn't that correct?" Kulp responded: "The order would have been carried out, I am sure." Once Washington's execution was halted, it took 15 years, multiple rounds of DNA tests, and intervention by two governors before he was finally pardoned. "Ultimately," Zerkin says, "he was saved by a fluke — DNA. There's this idea that DNA is the panacea, that it will always be able to prevent wrongful convictions. That's nonsense. "It's a small percentage of cases that have DNA involved. If Earl Washington had been convicted of a robbery murder instead of a rape murder, there would have been nothing to exonerate him. "So to say that Earl's case proves that the system works is unmitigated nonsense." Giarratano, Washington's jailhouse lawyer and confidant, says focusing on the DNA "panacea" obscures a more fundamental issue: "How did Earl wind up on death row in the first place? Pardoning Earl doesn't address that question. And that is the question that every death-penalty supporter needs to answer. It's a question that every judge who ever ruled on Earl's case needs to answer. It's a question that those in the legislature need to answer." Woodrum, the lawmaker who introduced the first "Earl Washington bill" seven years ago, is still struggling with that question. "I've voted to expand the death penalty in the past, but I don't think I ever will again," he says. "If God really did mean 'Thou shalt not kill,' we're going to have an awful lot to answer for on the day of judgment."

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