Life sentence, no time off for innocence

Prisoners: Death sentences waived by a governor persuaded by new evidence become life sentences without appeal in Virginia.

July 23, 2000|By Colman McCarthy

Among the 87 prisoners freed from America's death rows since 1972, four Virginians stand out: Joseph Giarratano, Earl Washington Jr., Herbert Bassette and Joseph Payne. Beginning with Giarratano in 1991 and ending with Payne in 1996, each won release because a Virginia governor examined the evidence for innocence and ruled that reasonable doubts about guilt were compelling.

When the four men left death row, they didn't go far. They were shackled and dispatched to other state prisons where they are caged today. What holds them is Rule 1.1 of the Supreme Court of Virginia - the 21-day rule. Airtight, it decrees that if a capitally convicted prisoner has post-conviction evidence of innocence, bring it to court within 21 days of the sentencing. After that, don't bother. Proof could exist that the accused was in Antarctica playing with penguins on the day of the crime in Virginia. After 21 days, it wouldn't matter. Nor would old evidence discredited by new DNA testing or other improved forensic methods. For Giarratano, Washington, Bassette and Payne, Rule 1.1 means that they will likely die in prison-effectively a death sentence outside death row.

Driven either by conscience or edginess about what this rule says about Virginia justice, some state politicians have been stirring themselves to corrective action. In late February, the House of Delegates voted 73-25 on a bill that would lethally inject the 21-day rule. The 41 Democrats and 32 Republicans supporting the change believed that, finally, Virginia would no longer be the only one of the nation's 38 death penalty states denying appellate relief for possibly innocent people. The effort came to nothing. In mid-March, the state Senate refused to consider the bill, which would have given three years, not three weeks, to offer new evidence for innocence.

While Virginia stagnates, shiftings are seen elsewhere. Preacher-politician Pat Robertson is the latest pro-death penalty conservative to call for a moratorium. He followed Illinois Gov. George Ryan, who could no longer ignore that 13 men have been freed from his state's death row since 1977, one more than the number of men executed. Six other states have called for a timeout, now that the mathematics are in: with 87 men freed and some 630 gassed, injected, electrocuted, hung or shot, it's one out of eight prisoners who escaped death row.

It could be asked about the freed men: Why aren't sentencing judges and prosecutors arrested for attempted homicide? With slim chance of that happening, another question is within range of reasonableness: Why are so few details about the incompetent lawyering and erratic judicial decisions from the bench disclosed to the public and to the people victimized by the wrongful convictions?

The case I'm most familiar with is Joseph Giarratano's. Since 1988, I have been in regular contact with him. I visited him four times on death row, including an interview the day before his scheduled execution in February 1991. Since then, I made a half-dozen more visits. On each, I brought students from my classes at Georgetown Law School, the University of Maryland and Bethesda Chevy Chase High School.

Giarratano, a one-time drug addict who turned his life around on death row by reading law, theology and hilosophy, was allowed by his progressive warden to give seminars on criminal justice to my students. On legal issues, he had credibility. He had written articles for the Yale Law Review and the Los Angeles Times. His legal research led to several successful suits on behalf of fellow prisoners. He was the only person on death row ever to write a brief argued before the Supreme Court - on behalf of Earl Washington Jr., his illiterate cellblock friend.

Giarratano, now 43, was convicted of killing two Norfolk, Va., women in February 1979 in a rooming-house apartment he shared with them. The case presented against him during a four-hour trial was so flimsy - five coerced dissimilar confessions; conflicting autopsy reports; bloody shoe prints in the apartment not matching Giarratano's boots; the stabbing and strangulation of the women were done by a right-handed person, while Giarratano is left-handed - that conservative pro-death penalty newspapers throughout Virginia began calling for a new trial. They were joined by Amnesty International and other groups that examined the case in detail. By February 1991, then Gov. L. Douglas Wilder freed Giarratano from death row.

The day before this life-sparing decision, I asked Giarratano the obvious question: If it's so certain that you have a claim for innocence, why haven't the courts, after 10 years of considering well-crafted appeals, agreed?

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