Article Highlights Earl Washington's Wrongful Conviction as VA Abolition is Considered
BY FRANK GREEN Richmond Times-Dispatch
Earl Washington Jr. arrived at the former Virginia State Penitentiary in Richmond in handcuffs and leg shackles. The 25-year-old intellectually disabled farmhand from Fauquier County had his belongings, but he did not have a lawyer. It was Aug. 19, 1985. His execution was set for Sept. 5.
Washington could hear the electric chair being tested from his cell in the basement of A Building. "I was nervous and scared," he testified in the 2006 trial of a civil rights suit he brought against officials. "I still have dreams," he said. "I dream about being executed."
Peter Neufeld, a co-founder of The Innocence Project, asked the jurors to imagine themselves days from execution and knowing they were innocent. "You cry out to people in power to stop the madness," but no one listens. "For Earl Washington it wasn't a nightmare, it was his reality." Virginia's only death row exoneree narrowly escaped execution in 1985 and walked out of the Greensville Correctional Center on Feb. 12, 2001, pardoned of a 1982 rape and murder in Culpeper. Washington was spirited away from Greensville that day by authorities — without an apology — and driven to a new home in Virginia Beach. It took six more years of fighting to fully clear his name.
As the 20th anniversary of Washington’s release approaches, the Virginia General Assembly is considering abolishing the death penalty. The case of Earl Washington, who came within nine days of execution, is front and center in the debate.
But not the man himself. Now 60, Washington lives with his wife, Pam, in a modest house in a small town on a quiet street not far from the former Mecklenburg Correctional Center, where he once lived on death row.
Barry A. Weinstein, one of Washington's many former lawyers and his longtime friend, said this month that Washington has avoided publicity in recent years.
"He wants to put that past behind him," Weinstein said. "He has dealt with it — the years that he spent on death row, in the death house, in prison — so he declines speaking to folks." At the state Capitol, less than a hundred miles from Washington's new home, a Senate bill that would abolish the death penalty survived two recent committee votes and has been sent to the Senate floor. As of Wednesday morning, its companion bill in the House had not yet been referred to committee. Some legislators want to keep the death penalty for the "worst-of-the-worst" killers in the state, and others warn that abolition could lead to more slayings of law enforcement officers.
Gov. Ralph Northam backs both abolition bills. He and others cite figures from the Death Penalty Information Center showing that 174 former death row inmates have been exonerated across the country.
As a result of Washington's years on death row, he suffered from severe post-traumatic stress disorder, said an expert. His testimony in that 2006 federal trial in Charlottesville may be the most revealing account he has given.
The jury awarded him $2.25 million, which at the time was believed to be the largest such award to an individual in state history. The case was ultimately settled for $1.9 million. In deciding for Washington, the jury found that what happened to him was as simple as it was tragic: He was led into a false confession made plausible because police gave him details of the crime that only the killer could have known.
Undoing the conviction and sentence was anything but simple. It took an all-star pick-up team of experts from across the country who, in many cases, donated years of legal, scientific, psychiatric and other assistance; the intervention of three sitting governors; and critical, unlikely help from a fellow death row inmate.
Washington also benefited from some good fortune: It was a rape case in which biological evidence had been preserved that could scientifically prove guilt or innocence; and because the DNA technology needed to do so was available before Washington could be executed. Soon after Washington's 2001 release, some argued it showed the system worked, that he was able to use new evidence of innocence to get a pardon from the governor.
Not so, counters Eric M. Freedman, a New York lawyer and professor of law at Hofstra University who helped represent Washington for many years.
"Earl Washington's case is a flashing red warning, not a story in which one can take any comfort that an error-prone system won't make errors," Freedman said this month.
"Sheer dumb luck is not proof that the system works," he said. "It is a warning story of how the system almost failed."
Washington got life-saving, early assistance from death row inmate Joseph Giarratano and the late Marie Deans, founder of the Virginia Coalition on Jails and Prisons. The two helped get Freedman and others involved in the case from his high-powered New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP.
Freedman, however, says, "The hero of that story is absolutely Joe Giarratano." Giarratano's death sentence was later commuted to life after doubts were raised about his guilt. He has since been released, completed his parole and and is a paralegal.
Giarratano remembers first meeting Washington on death row, then home to some of the most dangerous people in Virginia and just a year after six condemned killers escaped, setting off a national manhunt.
He said Washington was so frightened when he first arrived that "he wouldn't come out of his cell."
"I finally got to talking to him and realized something wasn't right," said Giarratano. "That's what I told Marie and we began digging trying to find an attorney for him."
"He didn't have a clue what was going on but he trusted me and he really trusted Marie," recalled Giarratano. As they were trying to find a lawyer, Washington received a letter from the Virginia attorney general's office.
"He couldn't read. So he gave me his letter and asked me what it said," said Giarratano. The letter notified Washington that his direct appeal had been denied and warned him that if he did not file a habeas corpus petition by a certain date, the office would push for an execution date. Martha Geer, a young colleague of Freedman's, arrived at Mecklenburg to speak with Giarratano about a class-action suit in the works on behalf of all Virginia death row inmates. But Giarratano wanted to talk about something else.
"I get in there and sit down on the other side of the table from him," Geer recalled. "Pretty close to the very first thing out of his mouth was: 'Earl Washington has been sentenced to death; he has been given an execution date; he doesn't have a lawyer. What the hell are you going to do about it?'"
She said Giarratano was concerned that Washington may be innocent and that he was intellectually disabled. Geer, now a retired North Carolina appellate court judge returned to private practice, said she dashed to a prison pay phone and called Freedman.
"'What are we going to do?'" she asked him. Greer said, "Eric just went into motion ... I don't even remember the rest of the day."
Their firm agreed to take Washington's case and frantically worked to file an appeal and get a stay of execution. But once there is a stay, someone else would have to take the case over, Freedman said.
The appeal was filed and a stay was granted by the Culpeper Circuit Court on Aug. 27, 1985, nine days before Washington's scheduled execution. A Virginia senior assistant attorney general later testified that had Washington not won the stay, the sentence would have been carried out on Sept. 5. With the stay granted, Deans needed other lawyers to take over the appeal. She approached Robert T. Hall, a Fairfax lawyer, and asked him to jump in. Hall was reluctant at first but agreed to review the 1,600 pages of material quickly assembled and filed by the New York lawyers that led to the stay. When he came across the forensic laboratory report on a blue blanket found at the scene, Hall was shocked. "I started looking at it — forensic stuff has always been an interest of mine — and as I went through it, I thought, 'Holy s___!' the seminal fluid on the blanket ain't Earl's," Hall said.
Simple blood typing showed that the semen on the blanket did not come from Washington. "I called Marie, I said, 'I'm in! I got some news for you — he didn't do it. The semen on the blanket isn't his,'" said Hall.
Washington's trial lawyers had seen the scientific test reports, but they did not have funds to hire experts and had not recognized the significance, Hall said. On appeal, however, the courts held that the blood typing results, even if disclosed at the trial, would not have made a difference in the outcome.
Richmond lawyer Gerald T. Zerkin, also among the lawyers long at work for Washington, recalled that soon after Washington's 1993 loss in the 4th U.S. Circuit Court of Appeals, he was walking along the street in downtown Richmond when he ran into an assistant Virginia attorney general.
Zerkin told him they were considering dropping Washington's appeals and instead asking Gov. L. Douglas Wilder for clemency. Zerkin said the assistant responded that in that case, the attorney general would insist on DNA testing. The testing was conducted and in October 1993, then-Virginia Attorney General Stephen Rosenthal announced that it did not conclusively prove innocence, but cast substantial doubt on Washington's guilt.
Officials said that testing of evidence from the victim's vaginal swab showed the presence of a genetic profile that was not from Washington, the victim, or her husband, but it was still possible Washington's DNA was present. One of Wilder's last acts before leaving office in January 1994 was to commute Washington's death sentence to life.
At the time, Donald Lee, a lawyer who worked with Zerkin on death cases, told the Richmond Times-Dispatch that Washington was fortunate that the case was the kind that involved biological evidence. "Thank God he confessed to a rape-murder and not a robbery-murder ... You can't do a DNA test on a robbery," he said. Then in 1999, Hall, Neufeld and Zerkin began asking authorities for more DNA testing using a more sophisticated technique not available earlier. Gov. Jim Gilmore agreed after the lawyers held a press conference urging him to do so.
In October 2000, Gilmore announced that the new testing failed to identify Washington's DNA in any of the evidence from the crime scene, but did identify the genetic profile of a convicted rapist, whom he did not identify.
The rapist, it was later revealed, was Kenneth Tinsley, then serving life in prison for an unrelated attack. His DNA was found in the semen on the blue blanket but not found by the state testing in the vaginal swab, said Hall. Unfortunately for Washington, in 2000 he was also serving a 30-year prison sentence for breaking into the home of an elderly woman, hitting her with a chair, stealing a gun and shooting his brother in the foot. The May 1983 incident occurred when Washington was drunk and he admits he did it.
It was while he was being questioned in the 1983 case that Washington "confessed" to the 1982 attack on Williams.
Gilmore pardoned Washington for the rape and murder of Rebecca Lynn Williams in 2000 in light of the DNA testing. But the parole board did not release him from prison for the 1983 convictions until 2001.
Shortly before his release, Washington told The Times-Dispatch that he learned two lessons in the 18 years he was imprisoned, including 9 1/2 years on death row: to tell the truth and to stay away from alcohol. In pardoning Washington, Gilmore said the testing did not prove innocence, only that had it been known to a jury he would not have been convicted. But if Gilmore was not willing to call the 2000 test results an exoneration, others were.
The case sent a shock wave through Virginia's judiciary and lawmakers and led to national news coverage and a book, "An Expendable Man," by Margaret Edds.
At the time, a study by the Columbia University School of Law found that Virginia had the lowest appeals court death sentence reversal rate in the country, and had executed a higher percentage of death-sentenced inmates than any other state. The exoneration led to changes in Virginia law, including giving prison inmates the right to seek DNA testing to prove innocence.
The state also ordered that biological evidence be preserved in many criminal cases and provided a way to get around Virginia’s so-called "21-day rule." The rule prevented prisoners with evidence of innocence discovered more than 21 days after the end of their case from ever presenting the evidence in a state court.
Geer said, "He was poor, Black, intellectually disabled, that sort of defines one of the problems with the death penalty — that someone like Earl could have been executed without an attorney is just insane." After his release in 2001, Washington moved into a special facility and support center for the mentally disabled in Virginia Beach. Not long after that, he met and married his wife, Pam Washington, another client there.
The couple lived in several supervised settings over the years and Washington held jobs until back problems left him unable to work, Weinstein said.
In 2002, Washington filed suit in federal court against investigators and officials who prosecuted him in large part to lift the remaining cloud of suspicion hanging over him, his lawyers said.
Hall said that as he, Neufeld and others were preparing for Washington's civil rights trial in 2004, they subpoenaed biological evidence from the state forensic laboratory and discovered the lab had consumed all of the evidence from the vaginal swab in earlier testing. However, 10 more slides with testable evidence were in the possession of the state medical examiner.
The medical examiner's office agreed to turn over material it was holding — including one slide made from the vaginal swab — for testing by Dr. Edward T. Blake of Forensic Science Associates in Richmond, Calif., that found Tinsley's DNA.
The finding by the renowned DNA expert not only helped Washington win his civil rights violation claim in 2006, but gave authorities the evidence needed to proceed with Tinsely's prosecution. In 2007, Tinsely pleaded guilty to Williams' murder.
After Tinsely was convicted, Gov. Tim Kaine granted Washington an absolute pardon, making it clear Washington was innocent. In recent years, Weinstein said Washington longed to leave the urban Tidewater area for more rural Virginia. He and Pam temporarily moved in with his brother in Southside Virginia and also stayed in a trailer for a while.
Then last year they bought a home of their own, Weinstein said. "Earl’s doing great. He lives in the Southside of the state and he’s very happy. He and his wife ... they’re ecstatic," said Weinstein.
In earlier interviews with The Times-Dispatch, while he was still in prison and after his release, Washington, painfully shy, spoke in short sentences and began responses to questions by saying "Whoa." Last week Weinstein, at the request of a reporter, said he asked Washington: "'Earl, Virginia may do away with the death penalty. What do you think?'" Washington responded: "'Whoa! It is a good thing ... I don't want this to happen to nobody.'"
Weinstein accompanied Washington when he stepped outside the Greensville Correctional Center early that morning nearly 20 years ago.
While Washington was being processed out by prison staff, "I asked Earl what does he want when he gets out? "And he said, 'I want a truck, I want a good job and I want a home.'"
All three, Weinstein said, have come true.