A Call to Finally Release an Innocent Man
 
 

I.    Background

A.      The Crime  and the “Confessions”
      
 On June 4, 1982, Rebecca Lynn Williams, returning home at noontime with her two young children to her apartment in the town of Culpeper, was raped and stabbed.  She could do no more than identify her assailant as a black man acting alone, and died a few hours later. 
 
 At trial, the officer who responded to the call testified, "I asked her if she knew who her attacker was.  She replied, no. I asked her then if the attacker was black or white and she replied, black.  I then asked her if there was more than one and she replied, no."
 
 Similarly, Rebecca Williams' husband testified, "I asked her, you know, who did it, and the only thing she replied to me was, a black man, and that was about it." 
 
 With neither witnesses nor helpful physical evidence available, the crime lay unsolved in the files of the Culpeper County Police Department.
 
 Almost a year later, on May 21, 1983 Earl Washington, Jr. -- a 22-year old black man with a general I.Q. in the range of 69 (that of a child in the 10.3 year age group), who had often been successful in compensating for his disability by politely deferring to any authority figures with whom he came into contact -- was arrested on unrelated charges by the police in Warrenton, in Fauquier County.
 
 These charges arose as follows.  After Mr. Washington had spent a number of hours drinking heavily with family members, a dispute arose.  Mr. Washington broke into a nearby house for the purpose of stealing a pistol which he knew to be there, and was surprised by the householder, Mrs. Hazel Weeks.  He hit her over the head with a chair, and returned to the gathering.  As he entered the house with the gun at his side, it accidentally discharged, hitting his brother, Robert, in the foot.  Mr. Washington fled into the woods, where the police found him a few hours later.
 
 While in police custody, Mr. Washington "confessed" to five different crimes.  In four of the cases, the "confession" proved to be so inconsistent with the crime it purported to describe that it was simply rejected by the Commonwealth as the unreliable product of Mr. Washington's acquiescence to the officers.  In the fifth case -- which resulted in the his capital murder conviction and sentence -- the statement had to be re-shaped through four rehearsal sessions before reaching a form the authorities considered usable. 

 Confession #1.  The questioning began on the morning of May 21, 1983 when law enforcement officers of Fauquier County secured from Mr. Washington a waiver of his Miranda rights.  They began by discussing the Weeks case and obtained a "confession."  According to a vivid account contained in this document, Mr. Washington had attempted to rape Mrs. Weeks.  But Mrs. Weeks testified to the contrary at the preliminary hearing, and the Commonwealth dropped the charge of attempted rape.  Thereafter, Mr. Washington pleaded guilty to statutory burglary (Va. Code, § 18.2-89) and malicious wounding, and was sentenced to consecutive 15-year prison terms.  But on the morning of May 21, 1983, all of this lay in the future.   

 Confession #2.  Having obtained Mr. Washington's "confession" to the Weeks crime, the police turned the conversation to an attempted rape that had occurred on Waterloo Road.  Mr. Washington confessed to this too, but the charge was dismissed, when it turned out that Mr. Washington’s "confession" was inconsistent with important facts in that case. 

 Confession #3.  Next, the police obtained Mr. Washington's "confession" to a breaking and entering on Winchester Street.  He was never charged with this crime.  The victim saw him in a line-up and stated that he was not the assailant.

 Confession #4.  Mr. Washington then "confessed" to the rape of a woman named Rawlings.  He was charged with this crime, but the charge was dismissed by the Commonwealth.  The victim's description of the attacker was inconsistent with Mr. Washington and she had previously identified someone else as the assailant. 

 Confession #5.  At this point in the interrogation, according to handwritten police notes given to -- but never used by -- counsel who represented Mr. Washington in his capital case, "Because I felt that he was still hiding something, being nervous, and due to the nature of his crimes that he was already charged with and would be charged with, we decided to ask him about the murder which occurred in Culpeper in 1982. ... Earl didn't look at us, but was still very nervous.  Asked Earl if he knew anything about it.  Earl sat there and didn't reply just as he did in the other cases prior to admitting them.  At this time I asked Earl - "EARL DID YOU KILL THAT GIRL IN CULPEPER?"  Earl sat there silent for about five seconds and then shook his head yes and started crying."

    The officers then asked Mr. Washington a series of leading questions about the crime and obtained affirmative responses.  This process eventually ceased, as the police notes frankly acknowledge, because the police had exhausted their store of information about the crime.  Thus, for example, the Fauquier County officers did not know that Rebecca Williams had been raped, and Mr. Washington did not supply any such information.  

  At this point, the Fauquier police called the Culpeper police and invited them to participate in the questioning. The following morning, May 22, 1983, Mr. Washington first had a further session with the Fauquier authorities at which, according to the officers' notes, "He went through the story (as on 05/21/83) again."  Then two officers from Culpeper, following oral 
Miranda warnings, began to interrogate Mr. Washington. No contemporaneous records of this session have been produced, and it was apparently not recorded.

 However, the interrogating officer later testified that Mr. Washington initially wrongly identified Rebecca Williams as having been black, and only corrected the statement on being re-asked the question. This pattern was common throughout the interrogation: "I asked him to describe this woman.  He had problems with describing."

 Thus, in addition to not knowing the race of Rebecca Williams when asked non-leading questions:

 -- He described the victim as "short". She was 5'8" tall.
 -- He said that he stabbed the victim two to three times.  She had been stabbed 38 times.
 -- He said he saw no one else in the apartment.  The victim's two young children were present.

 After approximately an hour of review of the facts, according to the police testimony, the officers informed Mr. Washington that they would ask him the same questions once more, this time reducing the conversation to writing.  They did so, and the resulting document was admitted at trial as his "confession.”

 During the afternoon of May 22, 1983, while Mr. Washington's statement of that day was being typed up for his signature, officers drove him to numerous apartment buildings in Culpeper in an effort to get him to identify the scene of the crime.  Three times they drove into the apartment complex where the crime had actually occurred.  On the third occasion, when asked to point out the scene of the crime, Mr. Washington "pointed to an apartment on the exact opposite end from where the Williams girl was killed.  At the time, I pointed to the Williams apartment and asked him directly, is that the one?"  This question obtained an affirmative response. 

 Similarly, the police officers had Mr. Washington identify as his own the shirt of unknown provenance that was found at the apartment and given to them by family members six weeks after the crime.

 During the guilt phase of the trial, the only evidence offered by the prosecution to link Mr. Washington to the crime consisted of his statements (including his identification of the shirt).  Defense counsel failed to obtain or offer available evidence that:

 -- The Commonwealth's own serologic analysis of the seminal fluid found on the blanket where the crime took place showed that it could not have come from Mr. Washington.

 -- The semen type was that of the Commonwealth's first suspect in the case, who was, however, never charged.

 Most critically, defense counsel also failed to show the process of suggestion by which the police officers had obtained the statement that was ultimately admitted into evidence, that Mr. Washington was wholly incapable of understanding Miranda warnings, and that his entire adaptive strategy for living in the normal world consisted of attempting to please his interlocutors by telling them what they wanted to hear.
     
           The trial resulted in a guilty verdict and death sentence, and the case then proceeded to the post-conviction stage.

B..   The Prior DNA Testing

 During 1993, as federal habeas corpus proceedings were winding down, the parties agreed that DNA testing -- which had only become available several years after trial -- should be done on biological samples that had been taken from the body of the victim.  The key testing was to be carried out by the central laboratory of the Virginia Division of Forensic Science.
 
            The findings were as follows: Mr. Washington has DNA type 1.2, 4; Rebecca and Clifford Williams both are of DNA type 4,4; the DNA type of the sperm found in Rebecca Williams body was 1.1, 1.2, 4.  Thus, the testing showed that the sperm contained a genetic characteristic (a 1.1 allele) that could not belong to any of these individuals.  This sperm must have been contributed by another person.  Doubtless, this person was the real perpetrator of the crime.  But in any event, it was not Mr. Washington.

            It was (and is) our view -- one that the Attorney General initially shared -- that at this point there was simply no case remaining against Mr. Washington; we accordingly urged that the Governor recognize his innocence through the grant of a full pardon.   

II. The Aftermath of the DNA Testing

           Governor Wilder did not see fit to grant this request.  We have no way of knowing why he acted as he did, but in the aftermath of the exculpatory DNA test results various government officials suggested informally that if some hitherto-unmentioned person (one with a 1.1 allele) had joined with Mr. Washington in raping Rebecca Williams, then this might provide an explanation for the test results.  That hypothesis, however, is entirely inconsistent with the known facts.  Not only did the Commonwealth's case at trial rest on Mr. Washington's "confession," which made no mention of any such third person, but, as recounted above, Rebecca Williams stated specifically to two people (her husband, and a police officer) that she had been attacked by only one man.

III.  The Latest Request

 The theory just described relies on the fact that the 1993 testing found that a 4 allele was present in the sperm sample.  Thus, both of them seek to blame the presence of a 1.1. allele on some outsider, and conclude that the true genotype of the sample is 1.2, 4, which matches Mr. Washington.

 As we have long suggested -- with the support of Dr. Henry Ehrlich, whose partner won the Nobel Prize in this field, and who is universally recognized as one of the leading authorities in the world -- this is not in fact the most likely scenario.  Probably, the 4 allele was a result of contamination from the victim’s genetic material.  In that case, the true genotype of the sperm is 1.1., 1.2.  If so, Mr. Washington could not possibly have been involved -- the sample would not only contain a 1.1 allele (which everyone agrees could not be his), but would also fail to contain a 4 allele (which it would necessarily need to contain if he were the donor).

 Since 1993, there has been developed a new type of DNA testing known as Short Tandem Repeaters (STR), which is sufficiently sensitive to make a definitive determination of the genotype of the sperm cells.

            On June 1, 2000, Governor Gilmore granted our request that such testing be performed in this case.  Although we have not been officially informed of the results, ABC News has reported that they clear Mr. Washington, and, on the basis of other media reports and public information, we have every reason to believe that this is true.

IV.  The Present Problem

       Since the only remaining arguments proffered in support of Mr. Washington’s guilt of the capital crime have now been exploded, the Governor should grant an absolute pardon respecting it, and we are reasonably confident that he will.

        That relief, however, will be insufficient to do full justice in this case.  But for his capital conviction, Mr. Washington would have long since have been paroled on his non-capital sentence.  Thus, the Governor also needs to act to secure his release now.

        But the Governor has not given any indication that he intends to do so, and we need your help in achieving this goal.

A.   The Past
     
        During the period of 9½ years that he was under a death sentence, Mr. Washington was ineligible for the accrual of statutory good-time.  Since Governor Wilder’s commutation in 1994, he has been receiving good-time at only half the rate that DOC’s scoring system would call for, purely because he is still under a life sentence on the capital charge.
       
        Had he not been wrongly convicted of the capital charge, Mr. Washington would have been paroled long ago.

       As described in a recent communication to the Governor from Jonathan Lynn, Esq.,  the longtime Commonwealth’s Attorney for Fauquier County who was then Mr. Washington’s attorney, Mr. Washington lived uneventfully in the community for a number of years prior to the incident involving Mrs. Weeks.  Moreover,  “It did not appear, based on what I was able to determine during the course of representing Mr. Washington, that he entered the Weeks home with any intent to harm Mrs. Weeks, but rather with the intent to steal a pistol he knew was located in the kitchen.”   Mr. Lynn further states, “By reputation he (Mr. Washington) was a farm laborer with no propensity for violence or misconduct.  The conduct attributed to him in the Weeks matter seemed out of character with his life to that point.” 
 
        This was an isolated episode. It was apparently brought on by drink and the ensuing harm  to Mrs. Weeks represented the unplanned reaction of Mr. Washington on being surprised in her house.  Immediately after this unfortunate incident, Mr. Washington was, and still remains, most remorseful.  As Mr. Lynn reports, “In his conversation with me, Mr. Washington did not offer his alcohol consumption as an excuse for his behavior, however, and he freely admitted to me his involvement in the Weeks case and appeared remorseful for what he had done.  He consistently indicated his willingness to plead guilty to charges arising out of the incident at the Weeks residence.”  In short, Mr. Washington promptly and remorsefully accepted responsibility for his actions, and has been punished for them.

Statistics gathered by the Commission on Sentencing Reform prior to the abolition of parole in Virginia  showed the following:
Malicious wounding:  average sentence 8.3 years; average time served 2.8 years
Burglary: average sentence 6.8 years; average time served 2.2 years.
Extrapolating from those figures, the average time served on consecutive sentences for burglary and malicious wounding aggregating thirty years, would have been 10-11 years. 

Mr. Washington -- whose prior record was minimal (one conviction for “drunk in public”), who has always accepted responsibility for his conduct, and whose institutional behavior has been excellent -- has now been incarcerated for over 17 years.

B.    The Present

The straightforward way for the Governor to exercise his authority to do justice under the circumstances is to commute Mr. Washington’s sentence on the Weeks offense to time served.  If the Governor were to seek to cut the baby in half -- pardoning on the capital conviction while leaving the non-capital conviction undisturbed -- he would be undoing, in effect,  his announced purpose of achieving justice by wiping out the wrongful capital conviction.  Such a disposition would relegate Mr. Washington to the processes of the Department of Corrections and the Board of Pardons and Parole -- neither of which have procedures in place to deal with this unique situation, and both of which would therefore doubtless require an extended period to formulate and implement them. 
 
Besides its unfairness, this course would be inimical to effective government.  The need here is not for new bureaucratic policies; the present circumstances are so unusual that it would be inefficient to devote time and resources to formulating ones.  Rather, it is the Governor -- the official charged with the responsibility of rectifying specific miscarriages of justice -- who should take prompt and effective action to correct Virginia’s error.

C.   The Future

     Mr. Washington has recently been interviewed by Kay Reed Mirick, who is a Fellow of the American Association on Mental Retardation with 30 years of experience in the field and the President of Support Services of Virginia (SSVA), a comprehensive support center for mentally disabled persons, which is located in Virginia Beach.
    
     After an extensive evaluation, which noted that Mr. Washington’s institutional history has been very positive (including a Certificate of Achievement for outstanding performance in a substance abuse program and his ongoing participation in a Literacy Incentive Program), and that he “was described by a counselor at the prison as being polite, quiet and staying to himself,” Ms. Mirick concluded that “Mr. Washington is capable of living safely in an apartment in a community setting with supervision and training,” and “has the potential for a successful transition into supported living and employment in a community setting.”  Accordingly, SSVA has agreed to accept Mr. Washington into its program.

   This means that SSVA would provide Mr. Washington with living quarters, all needed supervision, an educational program, and the opportunity for employment on an incremental basis as his condition warranted. Since Mr. Washington’s conduct and attitude while incarcerated have been commendable, notwithstanding his disabilities and the stresses of prison life (including those of Death Row), there is no reason to doubt that the SSVA plan is entirely sound.

V.  Your Role

Earl Washington. is innocent of the crime for which he came within days of being executed.  To prolong his incarceration would be inconsistent with justice not only to him but to Rebecca Williams and her family.  Such an outcome would be woefully inadequate to rectify the Commonwealth’s error.

Please write or call Governor Gilmore, urging Mr. Washington’s immediate release.

For further information, please contact any of the following:

     Robert T. Hall
     12120 Sunset Hills Rd.
     Reston, VA 20190
     703/925-0500
 

   
     Barry C. Scheck
     Co-Director, The Innocence Project
     55 Fifth Ave.
     N.Y., N.Y., 10003
     212/790-0377

     Peter Neufeld
     Co-Director, The Innocence Project
     99 Hudson St.
     N.Y., N.Y.  10013
     212/965-9380

     Eric M. Freedman
     Hofstra Law School
     Hempstead, N.Y.  11550
     516/463-5167 or 212/665-2713

     Gerald T. Zerkin
     530 E. Main St.
     Richmond, VA  23219
     804/788-4412 

     Barry A. Weinstein
     P.O. Box 1287
     Blairsville, GA 30514
     706/745-1693

     Marie Deans
     P.O. Box 5467
     Charlottesville, VA 22905
     804/971-1261