NEW VOICES: Former Virginia Executioner Calls for End of Death Penalty

Jerry Givens spent 17 years as the correctional officer in charge of Virginia’s electrocutions. During his tenure, he carried out 62 executions. He now strongly opposes the death penalty. The thought that he might execute an innocent person was a major factor in his change of heart. “The only thing I can do is pray to God to forgive me if I did,” Givens said. “But I do know this — I will never do it again.” The pending execution of Earl Washington, Jr. had a significant impact on Givens. Washington, with an IQ of 69, confessed to the 1982 rape and murder of a woman in Culpeper, Virginia. Many years later, DNA tests provided compelling evidence that Washington was not the killer, and he was eventually pardoned.  Givens remarked, “If I execute an innocent person, I’m no better than the people on death row.” The risk of executing an innocent person is also eroding public confidence in capital punishment. Virginia has changed from a state that had 13 executions in one year to having only 1 execution in two years, and less than 1 death sentence per year in the last five.

First Inmate to be Executed in 2013 Asked for Death Penalty; Exhibited Severe Mental Illness

Robert Gleason is scheduled to be the first person executed in the U.S. in 2013 on the night of January 16 in Virginia. At his trial, he told the court he wanted the death penalty and has waived all his appeals since his conviction. He has chosen to be executed by electrocution. Gleason's lawyers maintain he is severely mentally ill and his mental capacity has deteriorated during his time on death row. He suffers from extreme paranoia, delusional thinking, severe anxiety and other mental afflictions. Attorney Jon Sheldon stated that Gleason’s "mental illness is causing him to be suicidal, and he is enlisting the government's help to end his life.” His life was described as "profoundly disturbed and traumatic," marked by abuse as a child, with depression and other mental health problems as an adult. Virginia had no executions and no death sentences in 2012.

POSSIBLE INNOCENCE: Federal Judge Orders Virginia To Free Death Row Inmate

On December 26, U.S. District Court Judge Raymond Jackson ordered Virginia to unconditionally free death row inmate Justin Wolfe within 10 days and barred the state from using its key witness in any retrial of Wolfe. Wolfe was convicted of conspiracy in the murder of Daniel Petrole, a fellow drug dealer in northern Virginia. His conviction was based primarily on the testimony of the actual shooter, Owen Barber, who claimed that Wolfe hired him to kill Petrole because of an outstanding debt. In 2010, Barber testified in open court, subject to cross-examination, that his testimony at Wolfe's trial was false, and that Wolfe had nothing to do with Petrole's death. Barber has also admitted that he agreed to implicate Wolfe in order to avoid the death penalty. Judge Jackson held that Virginia had failed to comply with his earlier order to either free Wolfe or retry him within 120 days. He called the state's case a "bungled prosecution," and concluded that the state's withholding of key evidence about Barber from the defense precluded any retrial of Wolfe using Barber's testimony in any form. Barber, who remains in prison, has recently invoked his Fifth Amendment right to remain silent.

HISTORY: Public Executions in Virginia

A new book by Professor Harry M. Ward of the University of Richmond examines the death penalty in Virginia at a time when executions were carried out for all to see. In Public Executions in Richmond, Virginia: A History, 1782-1907, Ward provides a history of the hangings and, during the Civil War, firing-squad executions in Virginia's capital city. Thousands of witnesses attended the executions, which were seen as a form of entertainment. Public executions ended with the introduction of the electric chair in 1908. In 1995, Virginia adopted lethal injection as its primary form of execution.


U.S. Court of Appeals Throws Out Virginian's Death Sentence and Conviction

On August 16, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court ruling vacating Justin Wolfe’s (pictured) conviction and death sentence for a drug-conspiracy murder in Virginia in 2001.  His conviction was based primarily on the testimony of the actual shooter, Owen Barber, who claimed that Wolfe hired him to kill Daniel Petrole because of an outstanding drug debt. In 2010, Barber testified in open court that his testimony at Wolfe's trial was false, and that Wolfe had nothing to do with Petrole's death. Barber also admitted he agreed to implicate Wolfe in order to avoid the death penalty.  The 4th Circuit threw out all of Wolfe's convictions because the state had withheld crucial evidence showing that it was the police who introduced Barber to the idea of Wolfe's part in the conspiracy, and implying that Barber could avoid the death penalty if he so testified. (Referring to the Newsome report).  The court criticized the prosecution for intentionally withholding vital materials from the defense: "[W]e feel compelled to acknowledge that the Commonwealth’s suppression of the Newsome report, as well as other apparent Brady materials, was entirely intentional," the court wrote.

STUDIES: What Percent of Convictions Are Mistaken?

In June, the National Institute of Justice released the results of a study to determine how often modern DNA testing of evidence from older cases confirms the original conviction.  The study, conducted by the Urban Institute in Washington, D.C, tested DNA evidence that had been retained in homicide and sexual assault convictions that occurred between 1973 and 1987 in Virginia.  Among the homicides, there were not enough cases in which DNA would be determinative of guilt to make statistically reliable conclusions about mistakes.  In cases of sexual assault, DNA testing revealed that in 8-15% of the convictions, the convicted offenders were eliminated as the source of questioned evidence and that elimination was supportive of an exoneration.  The report concluded, “Even our most conservative estimate suggests that 8 percent (or more) of sexual assault convictions in a 15-year period may have been wrongful. That means hundreds, if not more than a thousand, convicted offenders may have been wrongfully convicted. That also means hundreds (if not more) victims have not received the just result, as previously believed. Therefore, whether the true rate of potential wrongful conviction is 8 percent or 15 percent in sexual assaults in Virginia between 1973 and 1987 is not as important as the finding that these results require a strong and coordinated policy response."

NEW VOICES: Former Judges and Law Enforcement Officials Criticize Death Row Inmate's Conviction

Thirty-four high-profile former judges and law enforcement officials recently filed an amicus brief arguing against Virginia's efforts to reinstate the conviction of Justin Wolfe (pictured).  Wolfe's attorneys maintain he was wrongfully convicted and sentenced to death in a 2002 murder-for-hire case because of false testimony from the actual shooter, Owen Barber. In 2005, Barber admitted to lying under oath, saying, “The prosecution and my own defense attorney placed me in a position in which I felt that I had to choose between falsely testifying against Justin or dying.”  In July 2011, a federal District Court overturned Wolfe’s conviction, citing the state’s use of Barber’s false testimony. Among those urging the U.S. Court of Appeals for the Fourth Circuit to affirm the District Court ruling are J. Joseph Curran Jr., who served as attorney general of Maryland; Gerald Kogan, former chief justice of the Supreme Court of Florida; and former attorneys general from Tennessee and New Jersey.

LEGISLATION: Virginia Rejects Death Penalty Expansion Bill

On February 22, Virginia's legislature blocked a bill that would have allowed the death penalty for accomplices to murder who did not actually carry out the killing. The bill would have revised the state’s “triggerman rule,” which allows the death penalty only for the person directly responsible for the actual murder. Two weeks ago, the Senate version of the bill was rejected by the Courts of Justice Committee on a 7-7 vote. The House then passed its own version of the bill, forcing the Senate to reconsider the measure. The Courts Committee again rejected the expansion bill, this time by a vote of 8-6. The vote difference was attributed to Republican Senator Bryce Reeves, who said he changed his vote based on his religious beliefs. Similar bills were passed by the Virginia legislature in 2008 and 2009, but were vetoed by then-Governor Tim Kaine. In 2010 and 2011, the Senate Courts Committee rejected similar bills. Stephen Northup, executive director of Virginians for Alternatives to the Death Penalty, called the bill “an unnecessary[,] expensive and risky expansion of capital punishment.” Among those opposing the bill were representatives of Catholic organizations, the American Civil Liberties Union, and Attorney General Kenneth Cuccinelli. Some of these noted that the state already ranks second to Texas in the number of executions since the the death penalty was reinstated in 1976, and that expanding death penalty eligibility would increase the chances of executing an innocent person.