[Back to Document View]

                            LexisNexisª Academic

                   Copyright (c) 2001 Hofstra Law Review
                             Hofstra Law Review

                                Summer, 2001

                          29 Hofstra L. Rev. 1089

LENGTH: 10452 words

SYMPOSIUM: EARL WASHINGTON'S ORDEAL

Eric M. Freedman*


* Professor of Law, Hofstra University School of Law (LAWEMF@hofstra.edu).
B.A. 1975, Yale University; M.A. 1977, Victoria University of Wellington
(New Zealand); J.D. 1979, Yale University. Professor Freedman served as one
of Earl Washington's legal counsel. During the long years of Mr.
Washington's ordeal, many professionals, lawyers, and non-lawyers generously
donated their resources. These included Dr. David Bing, Professor Edward J.
Bronson, Dr. Henry Ehrlich, Dr. John N. Follansbee, Martha Geer, Esq., Peter
C. Huber, Esq., Dr. Henry C. Lee, Professor Ruth Luckasson, Jonathan D.
Sasser, Esq., Dr. T. Richard Saunders, and Jay Topkis, Esq. The primary
members of the legal team, all of whom also served pro bono, were attorneys
Robert T. Hall, Peter Neufeld, Barry C. Scheck, Barry A. Weinstein, Gerald
T. Zerkin, and mitigation specialist Marie M. Deans. These individuals have
kindly reviewed a draft of this Article and provided helpful input, although
of course I retain responsibility for the final product. At one point or
another, each of the people named in the previous two paragraphs (not to
mention Mr. Washington's fellow death row inmate Joseph Giarratano, see
infra notes 69-70 and accompanying text) was critical to saving Mr.
Washington's life. Thus, there was a real need for the estimated $ 10
million worth of volunteer resources that were expended during his struggle.
See Jim Dwyer, Testing the Rush to Death Row, Daily News (N.Y.), Sept. 7,
2000, at 20. This work is copyrighted by the Author, who retains all rights
thereto. Permission is hereby granted to nonprofit institutions to reproduce
this work for classroom use, provided that credit is given on each copy to
the Author and the Hofstra Law Review.

SUMMARY:
... Second, more broadly, I believe that the case exemplifies many of the
phenomena that contribute to the injustice of the death penalty in America
today, and that its story therefore offers an appropriate framework within
which to view the Symposium contributions that follow. ... At this point,
the Fauquier police called the Culpeper police and invited them to
participate in the questioning. ... " Then two officers from Culpeper,
following oral Miranda warnings, began to interrogate Mr. Washington. ... "
He gave no reason why the jury should not impose the death penalty. ... If
the police believe that resistance from their interlocutor is simply an
attempt to impede them from verifying what they "know" to be the facts, they
will apply pressure that generates accounts whose content comes from the
officers rather than the suspect. ... This ostrich-like phenomenon, which is
certainly apparent in the judicial performance in Mr. Washington's case, has
hardly been improved since then by enactment of the Antiterrorism and
Effective Death Penalty Act of 1996, whose provisions were specifically
designed to reduce the number of successful federal habeas corpus petitions.
... Jan. 18-20, 1984: Washington's trial (guilt and penalty phases), results
in jury's decision to convict and impose death penalty. ... March 12, 1984:
Sentencing hearing and imposition of the death penalty by Trial Judge David
F. Berry. ... March 20, 1984: In its written order imposing the death
penalty, trial court sets execution date of July 27, 1984. ...

TEXT:
 [*1089]

By way of preface to this Symposium, I offer an account of the ordeal of
Earl Washington, who - having come within days of execution - was released
from prison on February 12, 2001, after DNA evidence of his innocence
finally proved conclusive to the Virginia authorities. n1 I do so for two
reasons.

First, I believe, both as a member of his legal team and a scholar, that
history deserves an accurate account of the events. n2 Second, more broadly,
I believe that the case exemplifies many of the phenomena that contribute to
the injustice of the death penalty in America today, n3 and  [*1090]  that
its story therefore offers an appropriate framework within which to view the
Symposium contributions that follow.

I. The Ordeal

On June 4, 1982, Rebecca Lynn Williams, returning home at noontime with her
two young children to her apartment in the town of Culpeper, Virginia, 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. n4

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." n5

Similarly, Ms. 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." n6

Almost a year later, on May 21, 1983, Earl Washington, "a black man, aged 22
at the time, with a general I.Q. in the range of 69, that of a child in the
10.3 year age group," n7 was arrested on unrelated charges by the police in
Warrenton, in Fauquier County, Virginia.

Those 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 that 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. n8

 [*1091]  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. n9 In the fifth case - which resulted in the
capital murder conviction and sentence - the statement had to be reshaped
through four rehearsal sessions before reaching a form the authorities
considered usable. n10

Confession #1: The questioning began on the morning of May 21, 1993 when law
enforcement officers of Fauquier County secured from Mr. Washington a waiver
of his Miranda rights. n11 They began by discussing the Weeks case and
ultimately obtained a "confession." According to a vivid account contained
in this document, Mr. Washington had attempted to rape Mrs. Weeks. n12 But
Mrs. Weeks testified to the contrary at the preliminary hearing n13 and the
Commonwealth dropped the charge of attempted rape. n14 Thereafter, Mr.
Washington pleaded guilty to statutory burglary n15 and malicious wounding,
n16 and was sentenced to consecutive fifteen-year prison terms. n17 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. n18 Mr. Washington confessed to this  [*1092]
too, but the charge was dismissed. n19 Mr. Washington's "confession" was
inconsistent with important facts in that case. n20

Confession #3: Next, the police obtained Mr. Washington's "confession" to a
breaking and entering on Winchester Street. n21 He was never charged with
this crime. The victim saw him in a line-up and stated that he was not the
assailant. n22

Confession #4: Mr. Washington then "confessed" to the rape of another woman.
n23 He was charged with this crime, but the charge was dismissed by the
Commonwealth. n24 The victim's description of the attacker was inconsistent
with Mr. Washington and she had previously identified someone else as the
assailant. n25

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. n26

The entire interrogation that followed consisted of the officers asking Mr.
Washington a series of leading questions about the crime and  [*1093]
obtaining affirmative responses. n27 This process eventually ceased, as the
police notes frankly acknowledge, because the police had exhausted their
store of information about the crime. n28 Thus, for example, the Fauquier
County officers did not know that Ms. Williams had been raped, n29 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. n30 The following morning, May 22,
1983, Mr. Washington first had another session with the Fauquier authorities
at which, according to the officers' notes, "he went through the story (as
on 05/21/83) again." n31 Then two officers from Culpeper, following oral
Miranda warnings, began to interrogate Mr. Washington. n32 No
contemporaneous records of this second interrogation have ever been
produced, and it was apparently not recorded.

However, the interrogating officer later described the session in court. n33
He testified that Mr. Washington initially wrongly identified Ms. Williams
as having been black, and only corrected the statement on being re-asked the
question. n34 This pattern was common throughout the interrogation: "I asked
him to describe this woman. He had problems with describing." n35

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

- He had described the victim as "short." n36 She was 5'8" tall. n37

- He had said that he stabbed the victim "once or twice." n38 She had been
stabbed 38 times. n39

 [*1094]  - He had said he saw no one else in the apartment. n40 Two of the
victim's young children were present. n41

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." n42

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 that time
I pointed to the Williams apartment and asked him directly, is that the
one?" This question obtained an affirmative response. n43

Similarly, the police officers had Mr. Washington identify as his own a
shirt of unknown provenance that was found at the apartment and given to
them by family members six weeks after the crime. n44

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). n45

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. n46

 [*1095]  - According to the same serological methodology the semen type was
consistent with the Commonwealth's first suspect, James Pendleton. n47

- The hairs found in the pocket of the shirt found at the crime scene were
consistent in part with that suspect's facial hair, n48 but were not
compared to Mr. Washington's hairs. When the state crime laboratory pointed
out this inconsistency to the Culpeper police and requested additional
Washington hairs for comparison, the police refused. n49

Defense counsel also failed to show that Mr. Washington was wholly incapable
of understanding Miranda warnings, n50 or that the process of suggestion by
which the police officers had obtained the "confession" dovetailed precisely
with his adaptive strategy for living in the normal world, which consisted
of attempting to please his interlocutors by telling them what they wanted
to hear. n51 Instead, defense counsel put Mr. Washington on the stand,
perhaps intending that this mentally challenged individual - who cannot name
the colors of the American flag or state the function of a thermometer n52 -
testify that, although he had signed the confession, its contents were
false. In any event, what he did testify was that he had never made the
confession. n53

Defense counsel then made a closing argument which simply asked the jury to
give Mr. Washington his day in court, without, however, discussing one iota
of the evidence the jury had heard. n54

 [*1096]  Not surprisingly, Mr. Washington was convicted.

At the punishment phase, the Commonwealth relied solely on the aggravating
circumstance that the defendant's "conduct in committing the offense was
outrageously or wantonly vile, horrible or inhuman." n55 It called as a
witness, without objection by defense counsel, Helen T. Richards, the
victim's mother. n56 The exclusive subject of her testimony was the
traumatic psychological effect of the murder upon two of the victim's young
children. n57 After describing this, and the special psychiatric care that
the two were receiving, Mrs. Richards continued:


They have a telephone that is just used for talking to their mama in heaven
and this is the way they talk about their problems. They sit down on the
phone and they take turns talking to mama in heaven, to let her know how
things are going, especially if they're very, very upset or something has
upset them, and they sit down ... it's a little ... it's just a regular
telephone, a little black phone, and they sit down and they dial and they
talk to their mama. It's not an easy thing to work with children that are
emotionally disturbed like this. They're beautiful children. n58

Defense counsel's jury argument at the punishment phase took up in its
entirety twenty-seven lines in the record. n59 After the prosecutor had
graphically and repeatedly described the thirty-eight stab wounds to
fourteen vital organs and the "pool of blood" in which the victim lay, n60
defense counsel advised the jury that "this is Earl Washington's day in
Court and you must do him justice." n61 He gave no reason why the jury
 [*1097]  should not impose the death penalty. As to the factors the jury
should consider, he submitted:


there is really, not really, in the course of human experience, any
particular standard that governs us all with respect to punishment, so each
of you, each of you must search within yourself to consider the crime and
consider the gentleman whom you have found to be its perpetrator and look at
him and look at the crime and determine what punishment is just for him. His
life is in your hands. n62

Not surprisingly, the jury sentenced Mr. Washington to death.

The direct appeal was handled by the trial lawyer. Not surprisingly, it was
summarily denied. n63

On the reasonable assumption that certiorari would not be granted at this
stage, the next step would be the filing of a state habeas corpus petition,
which, among other things, was and is a statutory prerequisite to the filing
of a federal habeas corpus petition. n64 Virginia, however, did not provide
for the appointment of counsel at this phase, n65 and the trial lawyer's
motion for that relief was denied. n66

 [*1098]  Thus, in August, 1985, when Mr. Washington - facing an execution
date of September 5 n67 - was moved to Virginia's Death House, he had no
legal representation. n68 Meanwhile, his fellow prisoner Joseph Giarratano
had been attempting to bring Mr. Washington's plight to anyone who would
listen, including the local District Judge and Marie M. Deans, director of
the Virginia Coalition on Jails and Prisons. n69 Mr. Giarratano and Ms.
Deans (who had been frantically but unsuccessfully soliciting law firms
around the country to volunteer for the case) raised the matter with Martha
Geer. Ms. Geer, then a junior associate at Paul, Weiss, Rifkind, Wharton, &
Garrison of New York City, was in Virginia to prepare the lawsuit that
eventually became Murray v. Giarratano. n70 She brought the matter to the
attention of her superiors at Paul, Weiss and Jay Topkis, a senior partner
in that firm who had repeatedly arranged for it to donate its resources to
death penalty cases, n71 agreed that it could undertake to save Mr.
Washington's life.

A team of lawyers from Paul, Weiss under my direction as senior associate
managed, after a virtually sleepless week, to file a 1600-page petition for
state habeas corpus, along with several applications for ancillary relief.
n72 One of these, an application for a stay of execution, was granted by the
circuit judge, thereby forestalling the execution nine days before it was
scheduled to take place. n73

As planned, Paul, Weiss then sought volunteer lawyers to take its place. As
a result, Peter C. Huber, and then Robert T. Hall, assumed primary
responsibility for Mr. Washington's representation. n74 At this stage, Mr.
Hall discovered the exculpatory semen stain evidence n75 -  [*1099]  which,
having been appropriately turned over by the government, lay unappreciated
in the files of the former defense counsel. n76

Notwithstanding this evidence (and a great deal more) of ineffective
performance by counsel, the state habeas corpus petition raising this and
other claims was denied without a hearing. n77 The Virginia Supreme Court
denied review. n78 Mr. Hall then filed a federal habeas corpus petition.
This, too, was denied without a hearing. n79

Having by this time become a law professor, I undertook the appeal of this
decision, which succeeded to the extent of a remand for an evidentiary
hearing. n80 On remand, Gerald T. Zerkin joined the legal team, and the two
sides presented a good deal of testimony, from the trial attorneys and from
experts, concerning the exculpatory evidence. Eventually, the district court
issued an opinion stating that defense counsel had made a conscious
decision, for tactical reasons, not to offer the exculpatory evidence. n81

That finding was so utterly without evidentiary support that the government
did not even attempt to defend it on oral argument of the resulting appeal,
on which I again represented Mr. Washington. Rather, the government urged
the theory that a divided Fourth Circuit panel eventually accepted: that
defense counsel's performance had indeed been ineffective, but the error was
non-prejudicial in light of the overwhelming weight of the evidence against
Mr. Washington, namely his confessions. n82

Since that case-specific ruling was hardly one likely to result in a grant
of certiorari, the legal system at this point had given its final sanction
to Mr. Washington's execution, which in ordinary course would be likely to
occur within a few months. During this period, a  [*1100]  conversation
during a chance encounter on a Richmond street between Mr. Zerkin and an
attorney for the government resulted in an agreement that DNA tests (which
had by now become available) should be performed on samples recovered from
the vaginal vault of the victim. n83 At this point, Barry C. Scheck and
Peter Neufeld volunteered their DNA expertise, and Barry Weinstein of the
Virginia Resource Center joined the legal team to help in compiling a pardon
petition to Governor L. Douglas Wilder.

That petition, filed on December 20, 1993, n84 included the DNA test results
as reported by the Virginia Division of Forensic Science. n85 For the single
genetic marker examined, Mr. Washington had DNA type 1.2, 4; Ms. and
Clifford Williams were both of DNA type 4,4; the DNA type of the sperm found
in Ms. Williams body was 1.1, 1.2, 4. n86 Thus, the testing showed that the
sperm contained a genetic characteristic (a 1.1 allele) that could not
belong to any of these individuals. n87

It was the view of Mr. Washington's counsel - one that the Attorney General
initially shared n88 - that at this point there was simply no case remaining
against Mr. Washington. n89 Counsel accordingly urged Governor Wilder to
recognize his innocence through the grant of a full pardon. n90 But the
Governor refused to do so. Instead, on January 14, 1994, hours before the
expiration of his term, he commuted Mr. Washington's sentence to life
imprisonment with the right of parole. n91

 [*1101]  In the aftermath of this "political half-loaf" n92 various
government officials advanced imaginative theories to justify Governor
Wilder's failure to release Mr. Washington. For instance, if some
hitherto-unmentioned person (one with a 1.1 allele) had joined with Mr.
Washington in raping Ms. Williams, then this might provide an explanation
for the test results. n93 That hypothesis, however, was 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, Ms. Williams stated specifically
to two people (her husband and a police officer) that she had been raped by
only one man.

Moreover, this scenario was as implausible scientifically as it was
forensically. The 4 allele found by the testing was probably a result of an
incomplete separation of the male and female contributions to the mixture,
and thus a contamination from the victim's own genetic material. n94 In that
case, the true genotype of the sperm would be 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 concededly 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).

But Mr. Washington had no judicial avenue by which to press his claims. The
time limit in Virginia for the reopening of a criminal case on the basis of
newly discovered evidence was (and is) twenty-one days, n95  [*1102]  and
the prospects in federal court were less than favorable. n96 Thus, despite
one abortive effort to gain him legislative relief, n97 Mr. Washington
languished in prison.

After many painful years, Mr. Scheck was able to inform the rest of the
legal team that advances in DNA technology might be able to unlock the door
to Mr. Washington's cell. n98 The invention of the Short Tandem Repeater
(STR) test, which sampled many more genetic markers than the single marker
tested in 1993, could lay to rest all scenarios, no matter how fanciful,
that implicated Mr. Washington.

But without a judicial avenue available, the only recourse was to the
governor. Accordingly, beginning in early 2000, counsel requested Governor
James S. Gilmore, III to order additional testing. n99 Since the governor
was not legally obligated to act, and had political reasons to avoid doing
so for as long as possible, months went by with no reply, until eventually
the Virginia press began demanding to know why. n100 In May, Peter Neufeld,
Bob Hall and Jerry Zerkin met with Gilmore's counsel. Neufeld explained the
new science and communicated that without a legal remedy, Mr. Washington's
only avenue for obtaining  [*1103]  gubernatorial action was through the
press. On June 1, 2000, the governor announced that he was ordering the
testing. n101 His spokeswoman said it should be completed in a few weeks.
n102 With no results received after three months, the national press
intensified its coverage. n103 Counsel filed a pardon petition on September
7. n104 On October 2, 2000, the governor announced that he was issuing a
full pardon on the capital charges. n105 Of critical importance to Mr.
Washington's proof of innocence, not only did the new round of DNA testing
completely eliminate him as a contributor to either the vaginal swab or the
blanket stains, but it also identified the source of semen on the blanket.
The state compared the DNA profile from the blanket to the Virginia DNA
database of convicted offenders and obtained a match to a prisoner serving
time for rape who had been at liberty at the time of the Williams murder.
n106

However, notwithstanding counsel's request, the governor took no action to
commute the non-capital sentence for the burglary and malicious wounding of
Hazel Weeks, even though Mr. Washington would have been paroled on those
charges long before if he had not been wrongly convicted of the capital
charges. n107 As a result, Mr. Washington remained in prison until his
mandatory release date of February 12, 2001. n108

 [*1104]

II. The Lessons

Lest this Preface pre-empt the substance of the Symposium it introduces, I
present in very compressed form the salient systemic flaws that I believe
Mr. Washington's story highlights.

A. Race

The impact of race on the criminal justice system generally, and the capital
punishment system in particular, has been extensively documented. n109 Mr.
Washington's case certainly raises the possibility that there may be aspects
of the problem which are inherent in our culture and will defy capture by
statistics, no matter how sophisticated. What led the initial investigators
down the path that they must be dealing with a sex crime? In light of Mrs.
Weeks' later testimony, they could not have had any solid basis for
believing so; yet they extracted from Mr. Washington a "confession" to
attempted rape, and then to a series of sex crimes. n110 Would they have
done so if he had not been black and the victim white? There is no way to
know, but the question certainly lingers.

B. False Confessions

This problem, too, has received extensive study. n111 What Mr. Washington's
case brings home is the reality that the police need not necessarily be
malicious; n112 sloppiness will do. If the police believe that resistance
from their interlocutor is simply an attempt to impede them from verifying
what they "know" to be the facts, they will apply pressure that generates
accounts whose content comes from the officers  [*1105]  rather than the
suspect. n113 This is inconsistent with an unbiased search for the truth,
and is likely to impede arriving at that goal. n114

C. Mental Retardation

Of course, those problems are exacerbated when the suspect is mentally
retarded. n115 First, mentally retarded people are likely to be skillful at
concealing their condition, so that interrogators may not even know caution
is in order. n116 Second, mentally retarded people suffer from severe
disadvantages in an interrogation setting. They tend to be suggestible, in
part because this furthers a coping strategy of concealing their limitations
and in part because their experience suggests that others are more likely to
be right than they are. n117 Moreover, diminished cognitive capacity means
that the retarded have less ability than other people to understand both the
contents and the potentially incriminating implications of any questions
they may be asked. n118

There is little doubt that these factors were at work in Mr. Washington's
case. He is an amiable, gentle person who tries hard to please others. n119
Hence, when told the "correct" answer to a question, he  [*1106]  will
repeat it on a subsequent occasion, regardless of whether he understands it.
n120 His "confessions" reflect these characteristics. n121

D. Ineffective Counsel

Had Mr. Washington been competently represented, he would have been
acquitted at trial. But he was not. n122 This problem is endemic to the
capital punishment system. n123 It is starkly pointed out in this case by
the fact that Mr. Washington was competently represented on the non-capital
cases: He pleaded guilty to those offenses of which he was guilty, and the
charges of which he was innocent were dropped. n124

The single most meaningful reform of the capital punishment system, short of
its abolition, would be the provision of effective trial counsel, through a
system that provided adequate compensation, expert resources, and the
training and support needed to practice in this esoteric field. n125 If that
happened - and nowhere has it to date n126 - there would be  [*1107]  far
fewer convictions and death sentences, but those few would be much more
likely to stick. That is an outcome that would be in the best interests of
all concerned. When the government attempts to evade costs at the front end,
they emerge at the back end - not just in the monetary drain of lengthy
appeals, but in such injustices as the irreplaceable years that Earl
Washington spent wrongfully imprisoned.

E. Inadequate Postconviction Review

Having adjudicated guilt and decided upon execution under conditions that
are troubling, to say the least, the system thereupon indulges every
presumption in favor of the trial outcome. This ostrich-like phenomenon,
which is certainly apparent in the judicial performance in Mr. Washington's
case, n127 has hardly been improved since then by enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, n128 whose provisions
were specifically designed to reduce the number of successful federal habeas
corpus petitions. n129 Substantively, moreover, both state and federal
judicial systems remain hostile to claims of actual innocence. n130

F. Politics

As a result, the decisions about guilt or innocence (e.g., whether to order
DNA testing to be performed, what action to take on the results) are almost
always in the hands of Governors (or Presidents) or their designees. And, as
Mr. Washington's case certainly illustrates, those  [*1108]  officials are
political ones, who act in response to political concerns. There is nothing
wrong with politics affecting the decisions of the political branches, but
there is sound reason why the political branches are not entrusted with
determinations of guilt or innocence.

Meaningful reform will require that prisoners claiming innocence have
meaningful access to the judicial branch. And meaningful access must mean
access without time limits, on the basis of realistic substantive standards,
and with the assistance of counsel and experts. n131 Earl Washington could
not have made on his own behalf the written and oral presentations that were
required to persuade Governors Wilder and Gilmore to conduct DNA testing,
and would have been equally incapable of making the same case to a court;
thus, granting him the right to do so without also providing the necessary
resources would be simple mockery.

More generally, the availability of DNA testing should be taken as an alarm
siren alerting us to the dangerous flaws in our criminal justice system.
Testable DNA samples exist in only a small fraction of cases, n132 and
wrongful convictions have many other causes - including inaccurate
eyewitness identification, n133 the unreliable testimony of prison
informants, n134 and false confessions. n135 If Mr. Washington had been
accused of a shooting rather than a rape-murder, there would have been no
DNA. That would have left him just as innocent, but dead by the hand of the
state. The availability of DNA in some cases acts as a check on the system
in much the same way that a tax audit does. The results so far certainly
indicate cause for concern, n136 and every effort at legislative
amelioration deserves support. n137

 [*1109]  Ultimately, however, no human system is perfect. Perhaps that
growing realization - combined with the reality that the death penalty does
not have a deterrent effect n138 but rather diverts resources from measures
that would in fact reduce the crime rate n139 - will lead in the near future
to a societal reassessment of the costs and benefits of retaining the death
penalty system.

Or perhaps progress will come less from an exercise in abstraction than one
in imagination: Any one of us could wind up in Earl Washington's position,
and what then?

 [*1110]

APPENDIX

Earl Washington's Ordeal: Timeline n140

June 4, 1982: Rebecca Lynn Williams, a nineteen year-old mother of three, is
raped and murdered in her Culpeper, Virginia, apartment.

May 21, 1983: Earl Washington is arrested in Warrenton, Virginia, in
Fauquier County, on an unrelated case - burglary and malicious wounding.
During two days of questioning by law enforcement officials from the
Virginia State Police, Culpeper County, and Fauquier County, he confesses to
four other crimes including the Williams murder.

Nov. 2, 1983: Trial Judge F. Ward Harkrader, Jr. rules that Washington's
confession was voluntary and could be used against him at trial.

Jan. 18-20, 1984: Washington's trial (guilt and penalty phases), results in
jury's decision to convict and impose death penalty.

March 12, 1984: Sentencing hearing and imposition of the death penalty by
Trial Judge David F. Berry.

March 20, 1984: In its written order imposing the death penalty, trial court
sets execution date of July 27, 1984. Execution date subsequently stayed by
the Virginia Supreme Court pending appeal.

May 1, 1984: Washington pleads guilty to burglary and malicious wounding and
is sentenced to two fifteen-year sentences (thirty years) to run
consecutively.

May 9, 1984: Washington is sent to Virginia's death row at Mecklenburg
Correctional Center.

Nov. 30, 1984: Virginia Supreme Court affirms capital conviction and
sentence of death.

May 13, 1985: U.S. Supreme Court denies review.

July 3, 1985: Trial court sets execution date of September 5, 1985, and
denies motion by trial counsel for appointment of state habeas counsel.

Aug. 16, 1985: Washington is transferred to the execution site, Virginia
State Penitentiary in Richmond, and hears electric chair being tested.

Aug. 19, 1985: Joseph Giarratano, a fellow death-row inmate, and Marie
Deans, director of the Virginia Coalition on Jails and Prisons, describe
Earl's plight to Martha Geer, who is at the prison on a different  [*1111]
case. She persuades her firm, Paul, Weiss, Rifkind, Wharton & Garrison of
New York City, to represent Washington pro bono.

Aug. 27, 1985: A team of lawyers from Paul, Weiss, spearheaded by Eric M.
Freedman, files state habeas petition and application for stay of execution.
Stay application is granted by Judge Lloyd C. Sullenberger nine days before
scheduled execution. Washington returns to Virginia's death row at
Mecklenburg Correctional Center. Robert T. Hall enters case.

Dec. 23, 1986: State trial court denies state habeas petition without an
evidentiary hearing.

Feb. 26, 1988: Virginia Supreme Court denies petition for appeal.

July 28, 1988: Federal habeas petition filed in Eastern District of
Virginia.

Oct. 25, 1989: U.S. District Judge Claude M. Hilton denies petition for
federal habeas corpus relief without an evidentiary hearing. Appeal filed.

Dec. 19, 1991: U.S. Court of Appeals for the Fourth Circuit remands case
back to the U.S. District Court for an evidentiary hearing on issue of
ineffective assistance of counsel for failure to investigate and introduce
exculpatory semen stains found on blanket where crime took place.

April 6, 1992: Gerald T. Zerkin enters case. District court conducts
evidentiary hearing.

July 29, 1992: Judge Hilton once again denies petition for federal habeas
corpus relief.

Sept. 17, 1993: Fourth Circuit, by a 2-1 vote, affirms district court
ruling.

Oct. 8, 1993: Fourth Circuit, by a 2-1 vote, denies petition for rehearing.
Lawyers anticipate imminent execution date.

Oct. 25, 1993: A DNA test done by Virginia Division of Forensic Science on
biological evidence reveals a genetic marker that could not have come from
Washington. But Virginia's 21-day rule prohibits a return to court for
relief on the grounds of newly discovered evidence. Barry A. Weinstein,
Barry C. Scheck, and Peter Neufeld enter case.

Dec. 20, 1993: Washington files petition for pardon with Governor L. Douglas
Wilder.

Jan. 14, 1994: Hours before the expiration of his term on January 15,
Governor Wilder commutes Washington's sentence of death to life imprisonment
with possibility of parole.

 [*1112]  Jan., 2000: Washington requests that Governor James Gilmore, III
conduct further DNA testing on the biological material previously tested by
the Virginia Bureau of Forensic Science.

June 1, 2000: Under press pressure, Governor Gilmore grants request and
orders additional DNA testing.

Sept. 7, 2000: Still without test results, Washington files pardon petition
with the governor.

Oct. 2, 2000: Governor Gilmore grants an absolute pardon to Washington as to
the capital murder conviction but refuses to consider unrelated burglary and
malicious wounding convictions. Virginia Department of Corrections
subsequently determines that Washington would have been eligible for parole
consideration on January 25, 1989, on those charges and that his mandatory
release date is February 12, 2001.

Dec. 22, 2000: Virginia Parole Board denies discretionary parole release.

Feb. 12, 2001: Washington is released from prison to parole supervision.

FOOTNOTES:
n1. See Tim McGlone, Former Death-Row Inmate Released into Spotlight,
Virginian-Pilot (Norfolk), Feb. 13, 2001, at A1.

n2. Accordingly, all of the documents cited in this Article are available on
request from the Barbara and Maurice A. Deane Law Library at the Hofstra
University School of Law.

n3. A recent comprehensive summary of these is to be found in Part II of the
scholarly amicus brief submitted on behalf of Professor Anthony G. Amsterdam
of New York University School of Law and other capital punishment experts
(including myself) on November 17, 2000, in People v. Harris in the New York
Court of Appeals. See Brief of Amici Curiae, People v. Harris (N.Y. Dec. 19,
2000) (No. 1399) [hereinafter Harris Brief], to be reprinted in 27 N.Y.U.
Rev. L. & Soc. Change (forthcoming 2002). Their relationship to Mr.
Washington's experience has been cogently summarized in Margaret Edds,
Virginia's Leaky System of Capital Punishment Needs to be Plugged,
Virginian-Pilot (Norfolk), Jan. 28, 2001, at J5.

n4. See Washington v. Murray, 952 F.2d 1472, 1475 (4th Cir. 1991)
[hereinafter Washington I].

n5. 5 Joint Appendix at 1462, Washington v. Murray, 952 F.2d 1472 (4th Cir.
1991) (No. 89-4013) [hereinafter Joint Appendix] (Trial Testimony of Kenneth
H. Buraker).

n6. 5 Joint Appendix, supra note 5, at 1464 [hereinafter Williams Testimony]
(Trial Testimony of Clifford Williams).

n7. Washington I, 952 F.2d at 1475.

n8. See Earl Washington, Jr.: An Innocent Man, Petition for Executive Pardon
at 4 (Dec. 20, 1993) [hereinafter 1993 Pardon Petition].

n9. See infra text accompanying notes 18-25.

n10. See infra text accompanying notes 26-44.

n11. See 1 Joint Appendix, supra note 5, at 116-17 [hereinafter Washington
Interview] (May 21-23, 1983 Interview of Earl Washington, Jr.).

n12. See Washington Interview, supra note 11, at 125; Statement by Earl
Washington, Jr. at 1-2 (May 21, 1983), reprinted in Earl Washington, Jr.: An
Innocent Man, Exhibits and Appendices to Petition for Executive Pardon at
Exhibit 11 (Dec. 20, 1993) [hereinafter Exhibits to 1993 Pardon Petition].

n13. See Preliminary Hearing Transcript at 6-7, Commonwealth v. Washington
(Va. Cir. Ct. June 23, 1983) (Felony Nos. 5062, 5063) [hereinafter Prelim.
Hr'g Tr.] (Testimony of Hazel Weeks), reprinted in Exhibits to 1993 Pardon
Petition, supra note 12, at Exhibit 7.

n14. See Prelim. Hr'g Tr., supra note 13, at 25 (Statement of Prosecutor).

n15. See Va. Code Ann. 18.2-89 (Michie 1996).

n16. See Va. Code Ann. 18.2-51 (Michie 1996).

n17. See Order at 2, Commonwealth v. Washington, Felony Nos. 5062, 5063 (Va.
Cir. Ct. May 1, 1984), reprinted in Exhibits to 1993 Pardon Petition, supra
note 12, at Exhibit 8.

n18. See Interview of Earl Washington at 1 (May 23, 1983) [hereinafter
Supplemental Washington Interview], reprinted in Exhibits to 1993 Pardon
Petition, supra note 12, at Exhibit 11.

n19. See Order at 1, Commonwealth v. Washington, Felony Nos. 5032, 5061 (Va.
Cir. Ct. May 3, 1984), reprinted in Exhibits to 1993 Pardon Petition, supra
note 12, at Exhibit 20.

n20. Compare Supplemental Washington Interview, supra note 18, at 1-1a, with
Warrenton Police Department, Preliminary Investigation Report at 1-3 (Case
No. 02148-82) (Nov. 12, 1982), both reprinted in Exhibits to 1993 Pardon
Petition, supra note 12, at Exhibit 11.

n21. See Supplemental Washington Interview, supra note 18, at 1a-2,
reprinted in Exhibits to 1993 Pardon Petition, supra note 12, at Exhibit 11.

n22. See 1993 Pardon Petition, supra note 8, at 6.

n23. See Washington Interview, supra note 11, at 3-4, reprinted in 1 Joint
Appendix, supra note 5, at 118-19.

n24. See Order, Commonwealth v. Washington, Felony Nos. 5033, 5034 (Va. Cir.
Ct. May 1, 1984), reprinted in Exhibits to 1993 Pardon Petition, supra note
12, at Exhibit 10.

n25. See Warrenton Police Department, Supplementary Investigation Report at
2 (Case No. 1286-83) (May 2, 1983), reprinted in Exhibits to 1993 Pardon
Petition, supra note 12, at Exhibit 11; see also Affidavit of Commonwealth's
Attorney Jonathan S. Lynn paras. 6-8 (Dec. 7, 1993), reprinted in Exhibits
to 1993 Pardon Petition, supra note 12, at Exhibit 9.

n26. Washington Interview, supra note 11, at 120.

n27. For example, the interrogating officer testified that, as soon as Mr.
Washington stopped crying, "I told him, to clarify things, I told him, I'm
talking about the girl that was found stabbed laying naked outside the
apartment or townhouse in Culpeper. I asked him if that's the one and he
said, yes." 5 Joint Appendix, supra note 5, at 1535 [hereinafter Schrum
Testimony] (Trial Testimony of Terry Schrum).

n28. See Washington Interview, supra note 11, at 121.

n29. See Schrum Testimony, supra note 27, at 1536.

n30. See id. at 1537.

n31. Washington Interview, supra note 11, at 127.

n32. See 5 Joint Appendix, supra note 5, at 1558-59 [hereinafter Wilmore
Testimony] (Trial Testimony of Reese Wilmore).

n33. See id. at 1559-62.

n34. See id. at 1560.

n35. Id.; see also Washington I, 952 F.2d at 1478 n.5.

n36. See Washington Interview, supra note 11, at 121.

n37. See 5 Joint Appendix, supra note 5, at 1479 [hereinafter Beyer
Testimony] (Trial Testimony of Dr. James C. Beyer).

n38. 4 Joint Appendix, supra note 5, at 1030 [hereinafter Second Washington
Statement] (May 22, 1983 Statement of Earl Washington, Jr.).

n39. See Beyer Testimony, supra note 37, at 1474.

n40. See Second Washington Statement, supra note 38, at 1031.

n41. See 5 Joint Appendix, supra note 5, at 1455-56 (Trial Testimony of
Officer J.L. Jackson).

n42. See Wilmore Testimony, supra note 32, at 1574-84.

n43. Id. at 1588.

n44. See Washington I, 952 F.2d at 1478.

n45. See id. at 1477-78.

n46. Compare Bureau of Forensic Science, Commonwealth of Va., Amended Copy
of Certificate of Analysis (Aug. 26, 1983) [hereinafter Aug. 26
Certificate], with Bureau of Forensic Science, Commonwealth of Va.,
Certificate of Analysis (Aug. 12, 1983) [hereinafter Aug. 12 Certificate],
both reprinted in Exhibits to 1993 Pardon Petition, supra note 12, at
Exhibit 6 (showing that Earl Washington's blood and secretion type is O,
while the semen stains on a blue blanket found on the victim's bed were type
A); see also Washington I, 952 F.2d at 1476; 8 Joint Appendix, supra note 5,
at 2281, 2290-94 (Evidentiary Hearing Testimony of David A. Stoney and John
C. Bennett).

n47. See Aug. 26 Certificate, supra note 46, at 8 (noting that James
Pendleton's blood type is A); see also Washington I, 952 F.2d at 1478 n.6.
In 2000, it was revealed that DNA analysis of the semen stain showed it to
be inconsistent with that of Mr. Pendleton and consistent with an individual
incarcerated in Virginia for a sex crime. See Gov. James S. Gilmore, III,
Absolute Pardon of Earl Washington 2 (Oct. 2, 2000); Editorial, State Being
Mum About 1982 Rape-Murder, Virginian-Pilot (Norfolk), June 20, 2001, at
B10; Frank Green, No One Charged in Killing, Richmond Times-Dispatch, June
16, 2001, at B1; McGlone, supra note 1.

n48. See Aug. 26 Certificate, supra note 46, at 8-9; see also Washington I,
952 F.2d at 1478.

n49. See Washington I, 952 F.2d at 1478; Aug. 12 Certificate, supra note 46.

n50. See 1 Joint Appendix, supra note 5, at 154 [hereinafter Saunders
Declaration] (Aug. 25, 1985 Declaration of Richard T. Saunders, Ph.D.).

n51. See Ruth Luckasson, Evaluation of Earl Washington at 7-8 (Dec. 17,
1993), reprinted in Exhibits to 1993 Pardon Petition, supra note 12, at
Exhibit 1. Professor Luckasson, one of the country's leading experts on
mental retardation, volunteered her services to examine Mr. Washington. See
Washington I, 952 F.2d at 1481; see also supra note (listing the other
professionals who volunteered to help save Earl Washington's life).

n52. See Saunders Declaration, supra note 50, at 150.

n53. See 5 Joint Appendix, supra note 5, at 1608-09, 1616-18 (Trial
Testimony of Earl Washington, Jr.).

n54. See 6 Joint Appendix, supra note 5, at 1977-79 [hereinafter Defense
Counsel's Closing] (Closing Statement of Defense Counsel); see also
Washington I, 952 F.2d at 1481.

n55. 6 Joint Appendix, supra note 5, at 2063 (Jury Instruction No. 17,
Commonwealth v. Washington (Va. Cir. Ct. 1984) (No. 52-F(83))).

n56. See 5 Joint Appendix, supra note 5, at 1648-49 [hereinafter Richards
Testimony] (Trial Testimony of Helen T. Richards).

n57. See id. at 1645-49.

n58. Id. at 1648-49. If defense counsel had objected to this argument, it
probably would have been disallowed under the Eighth Amendment as then
interpreted. See Booth v. Maryland, 482 U.S. 496, 500-03 (1987) (holding
that a victim impact statement describing the emotional impact of the crime
on family members was irrelevant to a capital sentencing decision and risked
imposition of the death penalty "in an arbitrary and capricious manner,"
thus violating the Eighth Amendment); Rushing v. Butler, 868 F.2d 800, 803
(5th Cir. 1989) (holding that a victim impact statement introduced during
the sentencing phase "created the constitutionally impermissible risk" that
defendant was sentenced to death primarily "on the basis of emotionally
charged testimony from the victim's family"). But defense counsel made no
objection. See Richards Testimony, supra note 56, at 1649. Booth was
subsequently overruled by Payne v. Tennessee, 501 U.S. 808 (1991).

n59. See Defense Counsel's Closing, supra note 54, at 1679-80.

n60. See 5 Joint Appendix, supra note 5, at 1675-78 (Closing Statement of
Prosecutor John C. Bennett).

n61. Defense Counsel's Closing, supra note 54, at 1679.

n62. Id. at 1679-80.

n63. See Washington v. Commonwealth, 323 S.E.2d 577, 589 (Va. 1984), cert.
denied, 471 U.S. 1111 (1985). In fairness to trial counsel, this result was
probably independent of the merits of his presentation. Since 1976, the
Virginia Supreme Court has granted relief on direct appeal in a capital case
only twelve times, the majority of which occurred after Earl Washington's
appeal. See Powell v. Commonwealth, 544 S.E.2d 679, 699 (Va. 2001) (vacating
capital conviction and remanding case for retrial on first degree murder
charges only); Yarbrough v. Commonwealth, 519 S.E.2d 602, 617 (Va. 1999)
(remanding for resentencing); Lilly v. Commonwealth, 523 S.E.2d 208, 210
(Va. 1999) (reversing capital conviction); Atkins v. Commonwealth, 510
S.E.2d 445, 457 (Va. 1999) (remanding for resentencing based on jury verdict
form error); Mickens v. Commonwealth, 457 S.E.2d 9, 10 (Va. 1995) (remanding
for resentencing); Rogers v. Commonwealth, 410 S.E.2d 621, 629 (Va. 1991)
(reversing capital conviction); Cheng v. Commonwealth, 393 S.E.2d 599,
608-09 (Va. 1990) (reversing capital conviction); Frye v. Commonwealth, 345
S.E.2d 267, 288 (Va. 1986) (vacating death sentence and remanding for
resentencing); Patterson v. Commonwealth, 283 S.E.2d 212, 219 (Va. 1981)
(commuting death sentence to life imprisonment); Justus v. Commonwealth, 266
S.E.2d 87, 93 (Va. 1980) (reversing capital conviction and awarding a new
trial), appeal after remand at 283 S.E.2d 905, 913 (Va. 1981) (affirming
capital conviction and death sentence after retrial); Martin v.
Commonwealth, 271 S.E.2d 123, 131 (Va. 1980) (reversing capital conviction);
Johnson v. Commonwealth, 255 S.E.2d 525, 532 (Va. 1979) (reversing capital
conviction). In fact, the rate at which the Virginia state court system
upsets death cases on either direct appeal or collateral review is only
thirteen percent, by far the lowest in the country. See James S. Liebman et
al., A Broken System: Error Rates in Capital Cases, 1973-1995 app. at A-59,
C-1, C-50 (rev. ed. 2000).

n64. See 28 U.S.C. 2254(b) (1994 & Supp. 1996).

n65. A narrow Supreme Court ruling upheld the constitutionality of this
practice in Murray v. Giarratano, 492 U.S. 1, 7-8, 12 (1989).

n66. See 1 Joint Appendix, supra note 5, at 114 (Felony Order, Commonwealth
v. Washington, No. 52-F(83) (Va. Cir. Ct. July 3, 1985)).

n67. See id.

n68. In the subsequent court challenge that eventuated in Giarratano, the
government's representatives explained that the sentence of the court would
have been executed regardless of whether Earl Washington had representation.
See Geraldine Szott Moohr, Note, Murray v. Giarratano: A Remedy Reduced to a
Meaningless Ritual, 39 Am. U. L. Rev. 765, 765 n.5 (1990). Ultimately, the
Virginia legislature responded to Giarratano by passing a law establishing
that, within thirty days after the decision of the Supreme Court of Virginia
to affirm a death sentence, the court shall appoint counsel to represent an
indigent prisoner in a state habeas corpus proceeding. See Va. Code Ann.
19.2-163.7 (Michie 2000); Donald E. Wilkes, Jr., State Postconviction
Remedies and Relief 858-59 (1996).

n69. See Moohr, supra note 68, at 765 n.5.

n70. 492 U.S. 1, 3 (1989).

n71. See Susan Beck, The Last Resort, Am. Law., July/Aug. 1990, at 54, 54;
Michael Orey, Paul, Weiss: Profits and Principle, Am. Law., June 1987, at
70, 73.

n72. See 1 Joint Appendix, supra note 5, at 69-110 (Petition for Writ of
Habeas Corpus).

n73. See 3 Joint Appendix, supra note 5, at 714 [hereinafter Sullenberger
Opinion] (Letter Opinion of Hon. Lloyd C. Sullenberger).

n74. See Sullenberger Opinion, supra note 73, at 714.

n75. See supra note 46 and accompanying text.

n76. See 8 Joint Appendix, supra note 5, at 2346-47 (Affidavit of John W.
Scott, Jr. PP. 2, 3, 4, 7). DNA evidence did not exist at the time. Rather,
as indicated in supra note 46, the evidence was that the blood type of the
semen stain tested by the government had proved to be inconsistent with both
that of Mr. Washington and that of the victim's husband, Clifford Williams.

n77. See Sullenberger Opinion, supra note 73, at 720; 3 Joint Appendix,
supra note 5, at 721-22 (Dismissal Order).

n78. See Washington I, 952 F.2d at 1475. As with its decision on direct
appeal, see supra note 63 and accompanying text, this was in accordance with
the usual practice of the Virginia Supreme Court. Since Virginia's first
modern death sentence in 1977, relief after the direct appeal stage has been
granted in no more than four capital cases, twice (including Earl
Washington) by executive pardon. See Liebman et al., supra note 63, app. at
A-59, C-1, C-50.

n79. See 7 Joint Appendix, supra note 5, at 2160 (Memorandum Opinion of Hon.
Claude M. Hilton); 7 Joint Appendix, supra note 5, at 2182 (Dismissal
Order).

n80. See Washington I, 952 F.2d at 1475.

n81. See 8 Joint Appendix, supra note 5, at 2229-30 (Memorandum Opinion of
Hon. Claude M. Hilton); 8 Joint Appendix, supra note 5, at 2224 (Dismissal
Order).

n82. See Washington v. Murray, 4 F.3d 1285, 1292 (4th Cir. 1993).

n83. Previous attempts to type that material, using conventional serology
testing, had failed because there was no method for separating out the male
contribution to the vaginal mixture, which contained a significant amount of
the victim's own blood.

n84. See 1993 Pardon Petition, supra note 8.

n85. See Division of Forensic Science, Commonwealth of Va., Certificate of
Analysis (Oct. 25, 1993).

n86. See id.

n87. In the words of the Virginia report, "neither Earl Washington (HLA DQa
Type 1.2, 4), Rebecca Williams (HLA DQa Type 4,4), nor Clifford Williams
(HLA DQa Type 4,4), individually or in combination, can be the
contributor(s) of the 1.1 allele previously detected on the vaginal swab."
Id.

n88. See Letter from Robert T. Hall, Defense Counsel, to Walter S. Felton,
Jr., Counselor to the Governor and Director of Policy 7 (Feb. 25, 2000)
[hereinafter Hall Letter].

n89. That view was shared by a scientist acknowledged to be one of the
world's leading authorities in the field, Dr. Henry A. Erlich. Acting pro
bono, Dr. Erlich tested samples from Earl Washington, the victim, and her
husband using highly advanced DNA analysis. See Letter from Henry A. Erlich,
Ph.D., Director, Human Genetics, to Barry Weinstein, Defense Counsel 2 (Jan.
13, 1994) [hereinafter Erlich Letter]. He concluded that the presence of a
unique 1.1 allele "casts very significant doubt about Mr. Washington's
contribution to the sample." Id.

n90. See 1993 Pardon Petition, supra note 8, at 1-2.

n91. See Governor Lawrence Douglas Wilder, Conditional Pardon of Earl
Washington, Jr., at 4 (Jan. 14, 1994) [hereinafter Conditional Pardon];
Death Sentence Is Commuted, N.Y. Times, Jan. 16, 1994, at 16. Governor
Wilder noted that "there are no provisions under Virginia law whereby [the]
newly discovered [DNA] evidence can now be considered by the courts."
Conditional Pardon, supra at 1; see infra note 95 and accompanying text for
discussion of Virginia's 21-day rule.

It is a plausible speculation that Wilder's decision was influenced by his
contemplation of a run for the U.S. Senate. Although there had been rumors
of such a campaign throughout the previous fall, Wilder announced he would
not run three days before leaving office (and commuting Earl Washington's
sentence). By March of 1994, however, Wilder was publicly reconsidering his
decision not to run, and officially announced his candidacy in June. He
later withdrew. See Margaret Edds & Warren Fiske, "I Will Fight No More
Forever": Wilder Bails Out of Senate Race After 2 Polls Showed Him Trailing
Badly, Virginian-Pilot (Norfolk), Sept. 16, 1994, at A1.

n92. Eric M. Freedman, Letter to the Editor, In Virginia, Innocent Man Stays
in Prison, N.Y. Times, Jan. 28, 1994, at A26.

n93. See Hall Letter, supra note 88, at 6 n.7 ("The theory would be that
this mysterious stranger contributed the 1.1 allele, and the remaining
alleles, 1.2 and 4, belonged to Mr. Washington.").

n94. See Erlich Letter, supra note 89, at 1-2; Hall Letter, supra note 88,
at 7.

n95. See Va. Code Ann. 19.2-264.6 (Michie 2000). Although this limit is the
shortest in the country, the problem is a general one. Only two states (New
York and Illinois) specifically recognize re-opening on the basis of DNA
evidence, and, significantly, those two states have the highest number of
exonerations. See Jim Dwyer, Peter Neufeld & Barry Scheck, Actual Innocence:
Five Days to Execution and Other Dispatches from the Wrongly Convicted
246-47 (2000). On May 2, 2001, in part as a result of the lessons learned
from the Washington affair, Governor Gilmore signed into law S.B. 1366,
which requires the preservation of biological evidence and authorizes
convicted felons to seek DNA testing. See, e.g., Death Penalty Information
Center, Changes in the Death Penalty Around the U.S., at
http://www.deathpenaltyinfo.org/Changes.html (last visited May 27, 2001);
Justice is Served by Virginia's New DNA Rule, Virginian-Pilot (Norfolk), May
8, 2001, at B8; Virginians for Alternatives to the Death Penalty, Summary:
Death Penalty Bills in the 2001 General Assembly, at
http://www.vadp.org/legis.htm (last visited May 27, 2001). The statute is,
however, so limited that its practical effect is likely to be small.

n96. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (stating that "claims
of actual innocence based on newly discovered evidence have never been held
to state a ground for federal habeas relief absent an independent
constitutional violation").

n97. See Capital Case Bill of Review, H.B. 213, 1994 Sess., Gen. Assem. (Va.
1994). The bill - passed by the House almost immediately but shelved
indefinitely by the Senate Committee for Courts of Justice - was intended to
amend the Virginia Code by allowing for the re-opening of a death penalty
case upon the discovery of new evidence. See id.; see supra note 95 and
accompanying text for current developments in Virginia law.

n98. See Hall Letter, supra note 88, at 7.

n99. See, e.g., Hall Letter, supra note 88, at 7-8; Letter from Gerald T.
Zerkin, Defense Counsel, to Walter S. Felton, Jr., Counsel to the Governor
and Director of Policy (Jan. 27, 2000).

n100. See, e.g., Editorial, Earl Washington: Set Him Free, DNA Tests Point
to Innocence, Virginian-Pilot (Norfolk), Feb. 15, 2000, at B10; Margaret
Edds, Wrongly Accused and Sentenced: Freeing Washington Would Destroy Myth
of Justice, Virginian-Pilot (Norfolk), Apr. 16, 2000, at J5; Frank Green,
Gilmore Won't Rush Decision on DNA Test, Richmond Times-Dispatch, May 3,
2000, at A1. By this time, Mr. Washington's case had also benefited from a
broadcast of the PBS show Frontline. See Frontline: The Case for Innocence
(PBS television broadcast, Jan. 11, 2000), transcript available at
http://www.pbs.org/wgbh/pages/frontline (last visited May 27, 2001). This
revealed, among other things, that the semen stain had been subjected to DNA
testing by the government in late 1993 or early 1994, and that the
exculpatory results were not shared with defense counsel. See id.; Division
of Forensic Science, Commonwealth of Va., Certificate of Analysis (Jan. 14,
1994).

n101. See Press Release, Statement of Governor Gilmore Regarding Earl
Washington (June 1, 2000); Brooke A. Masters, Gilmore Orders DNA Testing for
Man Imprisoned Since '83, Wash. Post, June 2, 2000, at A1.

n102. See Masters, supra note 101.

n103. See Francis X. Clines, New DNA Tests Are Seen As Key to Virginia Case,
N.Y. Times Sept. 7, 2000, at A18; Masters, supra note 101; see also Earl
Washington: The Long Wait: DNA Test Results Are Overdue, Virginian-Pilot
(Norfolk), Aug. 12, 2000, at B6.

n104. See Letter from Gerald T. Zerkin, Defense Counsel, to Gov. James S.
Gilmore, III, Governor of Virginia (Sept. 6, 2000) (accompanying Earl
Washington, Jr.: Finally Releasing an Innocent Man, Petition for Executive
Pardon (Sept. 7, 2000) [hereinafter 2000 Pardon Petition]).

n105. See Gilmore, supra note 47, at 2; see also Nightline: Man Pardoned for
Rape and Murder Remains Imprisoned (ABC television broadcast, Oct. 6, 2000).

n106. See Gilmore, supra note 47, at 2.

n107. See 2000 Pardon Petition, supra note 104, at 6 (setting forth
sentencing data showing that Mr. Washington would probably have been paroled
in 1994, after serving ten to eleven years in prison).

n108. See Jim Dwyer, Virginia Gov Adds Insult to Idiocy, Daily News (N.Y.),
Feb. 11, 2001, at 8; McGlone, supra note 1. He had been scheduled to travel
to Washington that day to confer with legislators seeking to mitigate the
problems of wrongful capital convictions, but the Virginia parole
authorities blocked that trip. See Dwyer, supra; see also Tim McGlone,
Savoring His Freedom: Off Death Row and Into the Sunshine, Earl Washington,
Jr. Builds a New Life, Virginian-Pilot (Norfolk), Aug. 12, 2001, at A1.

n109. See, e.g., Harris Brief, supra note 3, at 62-70 (canvassing studies
demonstrating that "race discrimination is both the most detectable symptom
and the most invidious consequence of the unamenability of life-and-death
sentencing choices to rational regulation. It has persisted unchecked under
every form of post-Furman capital sentencing procedure."); see also Dwyer,
Neufeld & Scheck, supra note 95, at 193-210, 279-80 (including resource
list).

n110. See supra text accompanying notes 11-42.

n111. See, e.g., Dwyer, Neufeld & Scheck, supra note 95, at 78-107, 271-72
(including resource list).

n112. In arguing Earl Washington's case to the Fourth Circuit, I explicitly
disclaimed any attempt to show that the police had been trying to "railroad"
him. See Frank Green, Lawyers Say Confession Details May Have Been Offered
by Police, Richmond Times-Dispatch, June 5, 1990, at B8.

n113. See Jurek v. Estelle, 623 F.2d 929, 950-51, 951 n.23 (5th Cir. 1980)
(Johnson, J., concurring) (noting the perils of this process, especially
with "highly suggestible" suspects).

n114. This is not an isolated problem. In twenty-three percent of the DNA
exonerations to date, the prisoner had made a false confession or admission.
See Dwyer, Neufeld & Scheck, supra note 95, at 92. Scheck and his co-authors
note that sixty-three percent of the DNA exonerations analyzed by the
Innocence Project involved significant police or prosecutorial misconduct,
which courts often dismiss as "harmless error" and tolerate because law
enforcement officers are seen as seeking a "greater good." See id. at 175,
179-80.

n115. See, e.g., The Criminal Justice System and Mental Retardation:
Defendants and Victims (Ronald W. Conley et al. eds., 1992) (presenting
articles by criminal justice experts on the challenges posed by the mentally
retarded); Death Penalty Information Center, Mental Retardation and the
Death Penalty, at http://www.deathpenaltyinfo.org/dpicmr.html (last visited
May 27, 2001) (compiling statistics, cases, and news stories on the
subject).

n116. See James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal
Defendants, 53 Geo. Wash. L. Rev. 414, 458 (1985) ("Efforts that many
mentally retarded people typically expend in trying to prevent any discovery
of their handicap may render the existence or the magnitude of their
disability invisible to criminal justice system personnel."); Luckasson,
supra note 51, at 4-5.

n117. See Ellis & Luckasson, supra note 116, at 451 (citing President's
Panel on Mental Retardation, Report of the Task Force on Law 33 (1963));
Luckasson, supra note 51, at 4.

n118. See Jurek, 623 F.2d at 937 (questioning the voluntariness of a
confession of a mentally retarded person where there is an "inability to
comprehend the circumstances"); Ellis & Luckasson, supra note 116, at 451;
Bob Herbert, The Confession, N.Y. Times, June 21, 2001, at A25 (describing
the Washington case and noting that "even when mentally retarded defendants
are clearly guilty, it is extremely difficult to determine their level of
culpability").

n119. In the words of John N. Follansbee, M.D., who examined Mr. Washington
at the request of defense counsel, "It was my impression that if on the
evening of his execution the electric chair were to fail to function, he
would agree to assist in its repair." 1 Joint Appendix, supra note 5, at
134-35 (Declaration of John N. Follansbee, M.D.); see also Luckasson, supra
note 51, at 4 (noting that people in Earl's hometown described him as "very
goodhearted," "a good boy," and "wanting to please others").

n120. See Saunders Declaration, supra note 50, at 153; Luckasson, supra note
51 at 7 ("All the circumstances surrounding the "confession' indicate that
its contents came (intentionally or not) from the police and were simply
parroted back by Earl, piece by piece as he learned it.").

n121. According to Professor Luckasson's report, during the interrogations
in all five cases Earl "attempted to save face by using his coping strategy
of seeming to understand, and he was taking as many cues as he could from
[the officers'] behavior and words to try to "get it right' ... He believed
they "knew' the facts so he was trying to guess until his guesses matched
what they "knew.'" Luckasson, supra note 51, at 7.

n122. See supra text accompanying notes 46-63.

n123. See, e.g., Stephen B. Bright, Counsel for the Poor: The Death Sentence
Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1836
(1994); Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel
in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 302-03 (1983); Ira P.
Robbins, Toward a More Just and Effective System of Review in State Death
Penalty Cases, 40 Am. U. L. Rev. 1, 62-92 (1990).

n124. See supra text accompanying notes 13-25.

n125. See James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev.
2030, 2147 (2000).

n126. Chapter 154 of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214, 1221-26 (1996) (amending 28
U.S.C. 2244, 2253-55 and adding 2261-66), provides a number of procedural
advantages to states that furnish adequate counsel to capital prisoners. See
28 U.S.C. 2265 (Supp. IV 1999). But no state has yet been held to qualify
under Chapter 154. See Spears v. Stewart, No. 01-99000, 2001 U.S. App. LEXIS
20850, at 39 (9th Cir. Sept. 24, 2001) (Arizona does not qualify under
Chapter 154); Kreutzer v. Bowersox, 231 F.3d 460, 462-63 (8th Cir. 2000)
(Missouri does not qualify under Chapter 154), cert. denied, No. 00-10520,
2001 U.S. LEXIS 6178 (U.S. Oct. 1, 2001); Tucker v. Catoe, 221 F.3d 600, 605
(4th Cir.) (South Carolina does not qualify under Chapter 154), cert.
denied, 531 U.S. 1054 (2000); Ashmus v. Woodford, 202 F.3d 1160, 1167 (9th
Cir.) (California does not qualify under Chapter 154), cert. denied, 121 S.
Ct. 274 (2000); Baker v. Corcoran, 220 F.3d 276, 285-87 (4th Cir. 2000)
(Maryland does not qualify under Chapter 154), cert. denied, 121 S. Ct. 1194
(2001); Smith v. Anderson, 104 F. Supp. 2d 773, 786 (S.D. Ohio 2000) (Ohio
does not qualify under Chapter 154); King v. Netherland, No. 96-0641-R, 1997
U.S. Dist. LEXIS 11678, at 17 (W.D. Va. Aug. 4, 1997) (Virginia does not
qualify under Chapter 154); aff'd sub. nom. King v. Greene, 141 F.3d 1158
(4th Cir. 1998); Ward v. French, 989 F. Supp. 752, 757 (E.D.N.C. 1997)
(North Carolina does not qualify under Chapter 154), aff'd, 165 F.3d 22 (4th
Cir. 1998); Lockett v. Puckett, 980 F. Supp. 201, 210 n.11 (S.D. Miss. 1997)
(Mississippi does not qualify under Chapter 154); Williams v. Cain, 942 F.
Supp. 1088, 1092 (W.D. La. 1996) (Louisiana does not qualify under Chapter
154).

n127. See supra text accompanying notes 63-82.

n128. See 28 U.S.C. 2261-66 (Supp. IV 1999).

n129. See, e.g., 142 Cong. Rec. S3352, S3353 (daily ed. Apr. 16, 1996)
(remarks of Sen. Orrin Hatch) (noting that the proposed habeas reform would
"end the ability of ... heinous ... violent criminals ... to delay the
imposition of their sentence"); 142 Cong. Rec. H3605, H3606 (daily ed. Apr.
18, 1996) (remarks of Rep. Henry Hyde) (calling habeas corpus reform "the
Holy Grail" and stating that there is "nothing wrong" with a "1-year statute
of limitations in habeas"); H.R. Conf. Rep. No. 104-518, at 111 (1995),
reprinted in 1996 U.S.C.C.A.N. 944 (noting that title incorporates reforms
to "curb the abuse of the statutory writ of habeas corpus").

n130. See, e.g., Herrera v. Collins, 506 U.S. 390, 399-400 (1993) (holding
that a claim of actual innocence alone does not entitle petitioner to habeas
relief); Harris Brief, supra note 3, at 76-77, 77 n.177 (noting that
government officials "have a strong resistance to acknowledging the
exonerative significance" of subsequently discovered evidence).

n131. See Dwyer, Neufeld & Scheck, supra note 95, app. 1 at 255-60 (setting
forth "A Short List of Reforms to Protect the Innocent"); Liebman, supra
note 125, at 2144-50 (proposing significant reform efforts to combat the
problem of excessive pursuit of death sentences).

n132. See Dwyer, Neufeld & Scheck, supra note 95, at xv (noting that most
crimes do not involve biological evidence).

n133. See id. at xvi, 41-77 ("Eyewitness error remains the single most
important cause of wrongful imprisonment.").

n134. See, e.g., Dodd v. State, 993 P.2d 778, 783-84 (Okla. Crim. App. 2000)
(canvassing the unreliable nature of prison informants' testimony and
imposing specific procedures for its use); see also Dwyer, Neufeld & Scheck,
supra note 95, at 126-57.

n135. See supra Part II.B; see also Dwyer, Neufeld & Scheck, supra note 95,
at 92.

n136. DNA evidence has "provided stone-cold proof that sixty-seven people
were sent to prison and death row for crimes they did not commit." Dwyer,
Neufeld & Scheck, supra note 95, at xiv. DNA evidence was a substantial
factor in establishing the innocence of ten of the ninety-four inmates
released from death row since 1973. See Death Penalty Information Center,
Innocence: Freed from Death Row, at
http://www.deathpenaltyinfo.org/Innocentlist.html (last visited May 27,
2001).

n137. See, e.g., Innocence Protection Act of 2001, S. 486, 107th Cong.
(2001), reprinted in 29 Hofstra L. Rev. 1113 (2001).

n138. See Harris Brief, supra note 3, at 101-07 (pointing out that no
reputable study to date has found evidence to support the theory of
deterrence as a result of the death penalty); Robert Sherrill, Death Trip:
The American Way of Execution, Nation, Jan. 8-15, 2001, at 13, 18 (noting
that the number of murders in Florida more than doubled after institution of
the death penalty in 1979).

n139. See Eric M. Freedman, The Case Against the Death Penalty, USA Today,
Mar. 1997 (Magazine), at 48, 49.

n140. This document is the work of Barry Weinstein. I have edited it
slightly for publication.