THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: SUNDAY, June 26, 1994 TAG: 9406270296
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON AND JUNE ARNEY, STAFF WRITERS
DATELINE: 940626 LENGTH: Long
No one can say for sure if Virginia has executed innocent people since the high court reinstated the ultimate punishment in 1976. But since then, nine men sentenced to death by Virginia juries did not receive fair trials, court documents and interviews show.
{REST} In each case, prosecutors allegedly suppressed evidence or engaged in some other form of misconduct that could have changed the outcome. In each case, evidence that jurors or judges never heard could have meant the difference between verdicts of guilt or innocence, sentences of life or death.
For three of these men, questions about the quality of the evidence led the governor to grant clemency. Three others were executed with questions left unanswered. The other three men remain on death row, trying to get the courts to listen before time runs out.
\ \ At least nine men sentenced to die in Virginia's electric chair since the mid-1970s did not get fair trials because prosecutors suppressed key evidence of innocence or allowed perjured testimony, court records show.
Three of the condemned have been executed. Three received conditional clemency: yet unlike other states where clemency means freedom or a new trial, they got life terms. Three, their cases on appeal, still have a date with death.
The nine represent 12 percent of the 75 men sentenced to die in Virginia since the U.S. Supreme Court allowed states to resume the death penalty in 1976. Eight of the nine were indigent men represented by court-appointed attorneys with limited resources for investigations. Their crimes range from the fatal torching of another inmate to the multiple stabbing of an elderly woman whose body was doused with bleach. The nine were accused of killing a total of 10 people.
Yet evidence that jurors or judges never heard could have meant the difference between verdicts of guilt or innocence, sentences of life or death. Prosecutors withheld or failed to explain critical lab tests. They omitted physical evidence. Key witnesses lied or changed their statements. Prosecutors kept quiet about deals they had made with witnesses.
Two recent retrials of Norfolk murder cases illustrate the importance of full disclosure of evidence in deciding a defendant's fate. A jury - armed with the knowledge of a key witness's waffling - acquitted Brian McCray of murder and robbery charges nine months after he was sentenced to 43 years.
On the same day, a new jury hearing the murder case of Thomas Lundy recommended a sentence of two years for voluntary manslaughter; an earlier jury had convicted him of second-degree murder and recommended a 27-year sentence. In Lundy's second trial, his lawyer focused on previously suppressed evidence - the victim carried a gun taken from his mother's house - when arguing that Lundy fired in self-defense.
In the nine death row cases, it usually took five or more years to discover suppressed evidence, records show. Yet the inmates often languished behind bars for a decade or more awaiting appeals.
Even then, the evidence rarely was reviewed by state or federal courts. Suppressed evidence is considered ``new'' evidence in Virginia, and according to state law, new evidence can only be introduced within 21 days of conviction.
It is a legal Catch-22 that has led experts to call Virginia the worst state in the nation for both unfair trials and a lack of due process protection - even when considerable doubt concerning an inmate's guilt is found.
``I think the man on the street expects capital cases to be perfect, but for many reasons they are not,'' said William H. Wright Jr., a former staff attorney for the Virginia Capital Representation Resource Center in Richmond. ``Emotions run high. Prosecutors want a death sentence. Judges are appalled by the brutality of the cases. Exculpatory evidence is withheld.
``If we're going to have the death penalty, we've got to have a criminal prosecutorial system that is beyond excellent in determining guilt or innocence,'' Wright said. ``I'm not talking about perfection. I'm talking about excellence. We don't have that in Virginia. We're not close to that.''
The suppression of favorable evidence by prosecutors is the sort of denial of rights by the government that the Constitution is designed to prevent. In theory, police, prosecutors and defense attorneys bring all the facts of a crime to court, allowing a judge or jury to reach a fair verdict. Yet interviews, court records and news accounts show that questions of fairness are tainting an increasing number of Virginia trials.
In Norfolk, seven men faced unfair murder trials in 1992 and 1993 because prosecutors suppressed evidence. A Virginia State Bar investigation of the Norfolk prosecutor's office was initiated by allegations in the McCray case. In Fairfax, a judge in April fined a prosecutor $6,700 for repeatedly withholding evidence. In Loudoun County, the chief prosecutor faces a misconduct hearing for withholding evidence in the trial of a man accused of shooting his ex-wife. The man's conviction was overturned in a retrial earlier this year.
In the 36 states that allow the death penalty, additional safeguards are supposed to exist. Though the Supreme Court ruled in 1986 that capital cases warrant extra scrutiny, court records show only a pretense of such scrutiny in Virginia. The appeals courts look at procedure, not evidence.
``After 21 days, no court in this state, nor any judicial forum afterwards . . . can save you from . . . execution based on the proof that you are innocent,'' Leesburg defense attorney John P. Flannery II told a state legislative committee last year. ``You have no right to another trial, and no right to have a hearing to decide whether you should have another trial.''
Virginia, with 24 executions, ranks third in the nation for the number of people executed since the U.S. Supreme Court reinstated the death penalty in 1976.
An October 1993 House Judiciary Committee report said that 48 innocent men had been freed from death rows across the nation since 1972. And four more inmates have been freed since the report was published.
Of the 48 cases detailed in the report, 52 percent - or 25 inmates - ``were convicted on the basis of perjured testimony or because the prosecutor improperly withheld exculpatory evidence,'' the report said. ``Innocent persons are still being sentenced to death, and the chances are high that innocent persons have been or will be executed.''
Of the nation's top five states for executing prisoners, Virginia is the only one that has not released inmates after reviewing new evidence, the report shows.
Virginia's appeals courts have the lowest rate in the country for overturning cases on appeal, ``and it's not because Virginia has the best criminal justice system,'' said George Kendall of the NAACP Legal Defense Fund. ``It's because Virginia enforces its 21-day rule religiously . . . even to the exclusion of evidence of innocence.''
In the nine Virginia cases, withheld evidence falls into three patterns.
Sometimes, key prosecution witnesses lied. These witnesses often were prisoners who said the accused confessed to them, or they were co-defendants also facing death. In these cases, prosecutors failed to tell the defense that witnesses were offered leniency or dropped charges in exchange for their testimony, records show.
More than half of these cases relied on testimony of jail-house informants, records show. Prosecutors used ``snitches'' or co-defendants in the trials of Dennis Stockton, Roger Coleman, Alton Waye, Herbert Bassette and Joseph Payne.
This strategy is especially vulnerable, experts say: In a celebrated 1989 case in California, an informant admitted to providing false information in about 100 cases and to lying under oath in three of 16 cases in which he testified. In exchange for his testimony, he had been released early.
Prosecutors also are accused of failing to turn over inconsistent statements of witnesses and detailed evidence. When Herman Charles Barnes was granted a resentencing this year, the judge berated Hampton Commonwealth's Attorney Chris Hutton for failing to tell the defense that a gun was found under the victim. When prosecutors tried Earl Washington for the rape and murder of a Culpeper woman, they provided his lawyers with raw data from DNA tests of semen left at the crime scene. But they did not provide a translation of that data, which showed the DNA contained a genetic trait that was not Washington's.
Suppressed evidence is not the only problem with capital trials in Virginia. On June 8, a federal judge overturned the conviction of Lem D. Tuggle Jr. after ruling that his constitutional rights were violated several times during his trial in 1984. The judge ordered that Tuggle be released or retried within six months.
The judge found insufficient evidence to prove that Tuggle raped his victim in addition to murdering her. To get the death sentence, prosecutors had to prove the rape. But they only had evidence of bruises outside the vagina, and no semen was found in the victim. In addition, defense lawyers were not allowed to question jurors individually before the trial and were unable to bring in expert witnesses to help with the defense.
Marie Deans, former director of Virginia's Coalition on Jails and Prisons, said she always felt the case should be overturned because of constitutional error.
``If we bring up a case where there's evidence of innocence, they tell us that doesn't count,'' she said. ``The only thing that counts is constitutional error. We take them a case where there's constitutional error, and they say we don't care about that. . . . There's precious little justice around here. Here's a perfect example of why our federal courts are necessary.''
Yet questions of suppressed evidence might be even more troubling because they raise the specter of an innocent man's being sentenced to death based on illegal activities by the state.
The 1993 House report shows that suppressed evidence that prompted former Gov. L. Douglas Wilder to grant conditional clemency to Earl Washington in January, Herbert Bassette in 1992 and Joseph Giarratano in 1991 would have been cause in other states for their release, or at least new trials. In fact, in Virginia clemency has been a prisoner's only hope.
Bassette's case is similar to the 1979 release in Ohio of Gary Beeman, who was acquitted in a retrial after evidence showed that the main prosecution witness was the actual killer. Bassette was sentenced to die for the killing of 16-year-old gas station attendant Albert Lee Burwell Jr. Only later did Bassette's lawyers learn that prosecutors withheld one of the statements of a witness who said that another man confessed to the killing.
Washington's case is similar to the 1981 release in Louisiana of Johnny Ross, who was sentenced to death for rape then freed when his blood type was inconsistent with the rapist's. Washington's case also resembles that of Kirk Bloodsworth in Maryland, released last year after DNA confirmed his innocence in the rape and murder of a young girl.
Giarratano's case compares to several reversals made because of insufficient evidence and withheld evidence, including the 1989 release of Robert Cox in Florida, released by a unanimous decision of the Florida Supreme Court. Giarratano was granted clemency after Wilder decided that there were many unanswered questions surrounding the crime.
``Giarratano, Bassette and Washington have embarrassed the state of Virginia to the point that instead of giving them death, we gave them clemency,'' said William S. Geimer, a law professor at Washington & Lee University.
He describes Virginia as a state without meaningful appellate review for capital crimes.
``The Virginia Supreme Court and the 4th Circuit (Court of Appeals) are in the habit of doing everything they can to support the death penalty,'' Geimer said. ``It's a bigger lottery than the Virginia lottery, because if you get a prosecutor who's going to run roughshod or a defense lawyer who doesn't know what he's doing or a biased judge, there's nobody out there to correct it.''
The issue of withheld evidence in capital murder cases is not isolated to Virginia. Texas has received the lion's share of publicity: Several books and documentaries have chronicled cases there. In 1990, for example, Clarence Brandley was released after the Texas appeals court said ``a subversion of justice'' pervaded his 1980 conviction for the rape and murder of a 16-year-old girl. Brandley received a new trial when an investigation showed that prosecutors suppressed evidence and key witnesses lied.
``Capital cases are just an extension of what's happening in other cases,'' said Don Lee, a lawyer with the Virginia Capital Representation Resource Center. ``It's just that the stakes are higher because we're putting someone to death. In some respects prosecutors have awful pressures to get convictions. A death sentence therefore acts as a kind of symbol of tough response to crime.''
Although courts repeatedly have ruled that innocent people have been sentenced to death because of prosecutorial misconduct, ``I think prosecutors would say that withholding evidence was just a matter of judgment rather than trying to hide anything,'' said Richard Dieter of the Death Penalty Information Center. ``Death penalty cases are full of abuses and mistakes. . . . Yet in no states where this has been proven have there been any sanctions against the prosecutors who broke the law. The juries make good decisions based on what they saw, but if they didn't see everything, then how could their decision even begin to be called fair?''
Once evidence is suppressed, ``it takes years to discover,'' the Kendall of the NAACP Legal Defense Fund said. Few states grant access to police or prosecutors' files before or after conviction, he said.
Claims of innocence are growing for several reasons, Kendall said. Because more people are being sentenced to death, it is more likely that an innocent person will be convicted. There are more death penalty resource centers available now to investigate. Scientific methods, such as DNA testing, have improved. Finally, in the late 1980s, the Supreme Court said that looking at innocence rather than just legal procedure is relevant.
In 1977, one year after the Supreme Court reinstated the death penalty, Virginia lawmakers passed the capital murder statute much as it stands today. Capital trials are divided into the ``guilt'' phase, in which guilt or innocence is determined, and the sentencing phase, in which prosecutors try to prove the ``future dangerousness'' of the defendant or say that the ``vileness'' of the crime deserves death. Defense attorneys present ``mitigating evidence'' to sway the judge or jury from imposing death.
Virginia modeled its law after Texas' statute, which provided automatic review of death sentences and a stipulation that a convicted person had 30 days to seek a new trial based on new evidence.
``Virginia and Texas were long known as the most restrictive states in the country as far as allowing new evidence,'' Dieter said. ``Then, in April, the Texas appeals court eased the rule on death row appeals. Now, that makes Virginia the most restrictive.''
On April 20, the Texas appeals court ruled that new evidence could be used in the case of convicted killer Gary Graham, who produced witnesses who say he was not the gunman in a fatal holdup in 1981. Now, the condemned man must show a judge that the evidence could lead to a different verdict and that carrying out the sentence violates his constitutional rights.
The establishment of Virginia's 21-day rule resulted more from an oversight than any conscious policy-making, politicians said.
Del. J. Samuel Glasscock, D-Suffolk and a death penalty foe, was involved in the debate as legislators worked to bring the state's capital-punishment law in line with the 1976 Supreme Court ruling.
``I don't think there was any conscious consideration of the 21 days,'' he said. ``The discussion . . . was, `Do we allow the death penalty to be used at all and which offenses could be included?' I don't recall any real discussion on . . . the 21-day rule until recent years.''
Glasscock said 21 days is simply the standard length of time it takes for a judge's order to be final. He thinks the rule remains unchanged because politicians want to be perceived as tough on crime.
Mills E. Godwin Jr., a proponent of capital punishment who was governor when the state's death penalty legislation was drafted, added: ``I haven't felt any urgency on the part of the people of Virginia to do anything about it. I thought it was good legislation at the time.''
Yet this year, Virginia came close to changing the 21-day rule. Under House Bill 213, sponsored by Del. Clifton A. Woodrum, D-Roanoke, a condemned prisoner could ``at any time'' petition for a hearing if there ``exists new discovered evidence that establishes a significant probability that the prisoner is actually innocent.'' But at the 11th hour, the state Senate defeated the legisla-tion.
``As long as we have the death penalty in this state, we have to make it as fail-safe as possible,'' Woodrum said. ``I don't want to turn anyone loose that is deserving of death - these are vile people who committed unspeakable acts. But I think the ultimate horror would be for the state to execute someone who is not guilty of the crime.''
Keith Patterson, a private investigator involved in Giarratano's clemency investigation, agreed, although he does not believe that miscarriages of justice are because of prosecutors' malice. ``I rarely find true evil out there in the world,'' he said. ``What scares me most about our justice system is how much injustice there can be with just innocent mistakes.''
Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta, said the system must include a way to receive new facts. Many defense lawyers don't have the resources necessary to adequately investigate leads or the experts to consult at critical junctures, Bright said.
``A lawyer in a capital case has to make the choice between going broke and cutting corners,'' Bright said. ``It's completely unacceptable in a system that's taking people's lives. You can't have a properly working adversarial system when one side shows up with experts and the other side is basically dancing in the dark.''
Flawed prosecutions are sometimes fueled by confessions that tempt police to discount other suspects and halt their investigations early. Evidence discovered after trial can then cast doubt on those confessions.
For example, Alton Waye told his father he killed an elderly woman, when in fact he was so drunk that he didn't accurately remember what happened, his lawyers said. Earl Washington was brain-damaged, and his confession was riddled with errors, including the race of the victim.
In Giarratano's case, inconsistencies between early statements and details at the scene were overlooked, defense lawyers argued. Legal experts later called his a classic false confession.
In Giarratano's five confessions to police, the date, time, sequence and place of the murders were inconsistent. The knife he described couldn't have been the murder weapon, Deans said. He always called one of the victims ``Toni,'' yet in the statement he referred to her as ``Barbara.''
Giarratano blames police and prosecutors for not doing their jobs because they relied on statements taken while he was under the influence of drugs.
``I think when they got the statement, they just shut down their investigation,'' Giarratano said. ``It would be a quick conviction, a quick execution. It would be over with. I think that was in the prosecutor's mind, the judge's mind, in my own lawyer's mind.''
Gerald T. Zerkin, a Richmond lawyer who has handled many death row appeals, says confessions play a key role in capital cases. ``In most cases, it's the difference between who gets the death penalty and who doesn't,'' he said.
Yet there are plenty of cases in which police influence the ultimate product.
``What they do is they feed information to the defendant during the course of the interview,'' Zerkin said. ``They probably think they're doing nothing wrong. They don't understand that the product they're creating is not from the mind of the defendant. It's given to judges and juries as their own confession and it's really the result of an evolutionary process. It's tainted forever.''
Although many defense lawyers are eager to criticize wrongdoings of prosecutors, at least one prosecutor contends there are sometimes shady defense tactics in death penalty cases.
``There's a strong incentive out there for some defense lawyers and some friends and associates of defendants to create after-discovered evidence,'' said Albert D. Alberi, chief deputy commonwealth's attorney in Virginia Beach. ``If you give a defense attorney 10 years to find new evidence, they're going to find it. They're going to turn over every rock.''
Alberi cited the case of Richard Townes, convicted in 1985 of the capital murder of Virginia Gobel in Virginia Beach.
``Townes has for the last 11 years been doing his level best to manufacture evidence,'' Alberi said. ``What bothers me about the Townes case is the fact that no matter where the witnesses go, they are forever being approached by people trying to convince them to talk or change their testimony.''
Prosecutors and defense lawyers interpret the appeals process differently. Inmates' lawyers say the time provided for appeals is one of the few weapons they have for discovering evidence. But prosecutors call the lengthy process - often lasting 10 years or more - a waste of time and money.
In 1989, before Giarratano was granted clemency, then-Norfolk commonwealth's attorney William Rutherford put abuse of the system by defense lawyers at the top of the list of reasons for delays between conviction and execution. Lawyers take ``the maximum amount of time'' to file claims and make frivolous arguments, Rutherford said.
Giarratano disagreed then, and he disagrees today. ``The biggest problem in my case was getting access to the evidence we knew existed,'' he said. ``When we hired investigators, what we found was that there was a lot of evidence that never was presented at the trial, and it was evidence that would show I was innocent.''
Giarratano would like to see better-trained lawyers handle capital cases and open discovery granted to attorneys in appeals. He also is convinced that justice would be better served by eliminating the layer of state appeals.
At present, clemency is the only real relief in Virginia, experts say.
``Political figures consider (clemency) very seriously, but I think it's hard for them to divorce themselves from the politics,'' said Robert Holsworth, a political science professor at Virginia Commonwealth University in Richmond.
Holsworth noted that Giarratano's clemency plea came while Wilder was considering running for president. Wilder knew that it was an important decision that could influence his political future, Holsworth said.
``I appreciate Wilder saving my life, but he did a half-assed job of it,'' Giarratano said. ``The question is still there, am I innocent or am I guilty? If I'm guilty, then Wilder shouldn't have interfered.'' But if he is innocent, Giarratano asked, why not hold a new trial?
In the end, the legal system itself is the biggest obstacle to assuring justice for the innocent, concluded a 1987 Stanford University survey of 193 cases of innocent people given the death sentence before 1972.
``The criminal justice system is not designed to scrutinize its own decisions . . . once a conviction has been obtained,'' wrote authors Hugo Bedau and Michael Radelet. ``It is rare for anyone within the system to play the decisive role in correcting error. . . . Only a fraction of the wrongly convicted are eventually able to clear their names.''
According to the 1993 House report, ``After trial, the legal system becomes locked in a battle over procedural issues rather than an examination of guilt or innocence. . . . Accounts which report that a particular case has been appealed numerous times . . . may be misleading.''
The report singles out Virginia and the 1992 execution of Roger Coleman.
``When Roger Keith Coleman was executed in Virginia . . . it was reported that his last appeal to the Supreme Court `was Coleman's 16th round in court,' '' the report said. ``However, the Supreme Court had earlier declared Coleman's constitutional claims were barred from any review in federal court because his prior attorneys had filed an appeal too late in 1986. His evidence was similarly excluded from review in state court as well. Instead, Coleman's innocence was debated only in the news media, and considerable doubt concerning his guilt went with him to his execution.''
The report ends on a bleak note for even those inmates with strong evidence of innocence and unfair practices in their trials:
``Judging by past experience, a substantial number of death row inmates are indeed innocent, and there is a high risk that some of them will be executed.
``The danger is inherent in the punishment itself and the fallibility of human nature. The danger is enhanced by the failure to provide adequate counsel and the narrowing of the opportunities to raise the issue of innocence. . . .
``Once an execution occurs, the error is final.''
{KEYWORDS} DEATH ROW VIRGINIA
by CNB