Washington Post

December 12000

By BROOKE A. MASTERS
Washington Post Staff Writer 

Did you stab a woman in Culpeper?” the state police detec­tive asked.

The illit­er­ate farm work­er nodded.

Was this woman white or black?”

Black.”

A few ques­tions lat­er, Special Agent C. Reese Wilmore tried again. Was she white or black?”

This time Earl Washington Jr. said, White.” That answer launched the biggest mis­take ever made by Virginia’s judi­cial sys­tem – and land­ed Washington on death row.

It was­n’t until Oct. 2 – 17 years after that police inter­view – that new DNA tests cleared Washington of the 1982 rape and slay­ing of Rebecca Lynn Williams. Recent inter­views with Washington and Williams’s wid­ow­er as well as dozens of police offi­cers, judges and lawyers involved in the case turned up warn­ings that went unheed­ed along the way:

* Police and pros­e­cu­tors moved for­ward with a case based almost entire­ly on a state­ment full of incon­sis­ten­cies from an eas­i­ly per­suad­ed, some­what child­like spe­cial-edu­ca­tion dropout. Washington told inves­ti­ga­tors he stuck her … once or twice,” but Williams bled to death from 38 stab wounds. He said she was alone. But there was a baby in a playpen and a tod­dler roam­ing through the small apart­ment. The defense made no men­tion of most of these incon­sis­ten­cies dur­ing the trial.

* A judge ruled that the state­ment was admis­si­ble after hear­ing from a state men­tal health expert that a man with an IQ of 69 was com­pe­tent to waive his rights to a lawyer dur­ing ini­tial ques­tion­ing – even though Washington still does­n’t know what the words waive” and pro­vid­ed” mean.

* No eye­wit­ness or phys­i­cal evi­dence put Washington at the scene. His blood type did not match a semen stain, and police instruct­ed the state lab not to test key hair evi­dence. A judge reject­ed defense efforts to test the hair, and the defense lawyers nev­er told the jury about the mis­matched blood types.

* Six courts reject­ed the inmate’s claims of inno­cence, includ­ing a pan­el of fed­er­al judges who deter­mined that Washington’s tri­al attor­ney had failed to meet min­i­mal stan­dards but upheld the con­vic­tion any­way. Virginia’s appeals judges, who over­turn few­er death sen­tences than in any oth­er state, ruled that Washington’s con­fes­sion was prop­er­ly admit­ted and the blood evi­dence was inconclusive.

* In 1993, DNA test­ing con­tra­dict­ed the pros­e­cu­tion’s the­o­ry and Washington’s con­fes­sion that he alone attacked Williams. State offi­cials reduced Washington’s sen­tence from death to life in prison but did not clear him.

In October, Gov. James S. Gilmore III (R) par­doned Washington after more sophis­ti­cat­ed genet­ic test­ing found no trace of him at the scene. But two fam­i­lies have been for­ev­er changed by Virginia’s unwill­ing­ness to reex­am­ine the case. Washington, now 40, spent 17 1/​2 years as a con­vict­ed mur­der­er and came with­in five days of the elec­tric chair. And Rebecca Williams’s killer remains unknown.

Although state offi­cials have reopened the inves­ti­ga­tion, Williams’s wid­ow­er, Clifford, feels betrayed by Culpeper author­i­ties, who assured him that Washington was the right man and now won’t talk to him, he says.

What do they have to hide? Why won’t they talk about it?” he asked in a recent inter­view. I went for near­ly 18 years believ­ing Washington did it. Now I don’t know what to think.”

The mis­takes in the Washington case have led to the first com­pre­hen­sive exam­i­na­tion of the state’s death penal­ty. The Virginia Supreme Court has pro­posed elim­i­nat­ing the legal rule that pre­vent­ed Washington from seek­ing a new tri­al based on the first DNA test. Both the State Crime Commission and a bipar­ti­san leg­isla­tive com­mit­tee are study­ing that issue as well as the qual­i­ty of defense lawyers in cap­i­tal cas­es and whether to help oth­er con­victs get genet­ic testing.

Still, deter­min­ing what went wrong is dif­fi­cult. The Washington Post tried to con­tact every­one involved in the Washington case. Several of them refused to com­ment. And near­ly all the oth­ers defend­ed their roles and insist­ed that the sys­tem worked. Only a sin­gle juror and a retired fed­er­al judge expressed mis­giv­ings about their actions.

The juror, Debera Ann Holmes, who, like Washington, is black, said she was­n’t con­vinced of his guilt when the tri­al end­ed: With him being slow, he prob­a­bly did­n’t under­stand what the police were talk­ing about … and if you’re a black man and they think you’re guilty, they’re going to make it so.”

But when most of the oth­er jurors said they would stay all night to fight for a con­vic­tion, Holmes, now 41, capit­u­lat­ed. I pray to God to for­give me for what I did,” said Holmes, one of only two black jurors. It just hurts me.”

Seven years and five courts lat­er, J. Dickson Phillips Jr. was also unhap­py with what he saw. My intu­ition was that there was some­thing very, very wrong about the case in the first place,” said Phillips, who recent­ly retired from the 4th U.S. Circuit Court of Appeals. In 1991, that court sent Washington’s case back for more hear­ings – the only Virginia cap­i­tal case to get that kind of scruti­ny for 10 years. But after a low­er court pro­nounced poten­tial­ly excul­pa­to­ry evi­dence incon­clu­sive, Phillips said he felt legal­ly bound to uphold the sentence.

I wish I could have found a way to stop it.… I am delight­ed to hear about the par­don,” he said.

However, sev­er­al inves­ti­ga­tors said they still believe Washington was involved.

I feel as strong­ly about the case as I did back then,” said Fauquier County sher­if­f’s deputy Terry Schrum, who helped take Washington’s first statement.

Multiple Confessions

On June 4, 1982, Rebecca Williams stum­bled to the front stoop of her Culpeper apart­ment, still con­scious and beg­ging for help. Her hus­band, who had been out with a friend, came home as his wife was wait­ing for the ambulance.

I say What hap­pened?,’ and she says, It was a black man with a beard,’ and she put her hands up like she was pray­ing and kind of went to sleep,” Clifford Williams, now 41, recalled.

A neigh­bor report­ed see­ing a lone black man jump­ing the fence behind the com­plex, and inves­ti­ga­tors took bio­log­i­cal sam­ples from five men. But the inves­ti­ga­tion seemed to run aground.

Nearly a year lat­er, an illit­er­ate farm labor­er was arrest­ed in neigh­bor­ing Fauquiera. Angry with his broth­er, Earl Washington had bro­ken into his elder­ly neigh­bor’s house to get a gun she kept there. When Hazel Weeks sur­prised him, he hit her with a chair.

Washington says he was so drunk that he does­n’t remem­ber what hap­pened next. But police notes and court records show he was imme­di­ate­ly con­trite about hurt­ing Weeks. Investigators then asked about sev­er­al oth­er unsolved crimes in Fauquier, and Washington con­fessed each time.

Sgt. Alan Cubbage, a Warrenton inves­ti­ga­tor, remem­bers the call he got from Fauquier deputies that day about one of his cas­es. They said, You bet­ter get down here. We’ve already got a con­fes­sion on your rape case,’ ” said Cubbage, 47. It was almost like a big par­ty. Come on down, this guy is con­fess­ing to everything.’ ”

Schrum even­tu­al­ly brought up the unsolved slay­ing in Culpeper. Washington looked at the floor. So Schrum raised his voice – EARL DID YOU KILL THAT GIRL IN CULPEPER?” the inves­ti­ga­tor’s notes say. Earl sat there silent for about five sec­onds and then shook his head yes and start­ed cry­ing.” Schrum declined to dis­cuss the inter­ro­ga­tion in detail.

Investigators drove Washington all over Culpeper, try­ing to get him to show them where the killing took place. They had read him his Miranda warn­ings, and Washington waived his rights.

I fig­ured I did­n’t need a lawyer [because I did­n’t do it],” he said.

A men­tal health expert who exam­ined Washington lat­er found the inmate to be extreme­ly sug­gestible.… His innate ori­en­ta­tion is to believe what oth­ers say.” Washington copes with an IQ that puts him in the bot­tom 2 per­cent of the pop­u­la­tion by fol­low­ing oth­er peo­ple’s cues, University of New Mexico spe­cial edu­ca­tion pro­fes­sor Ruth Luckasson wrote.

Wilmore, the Virginia State Police detec­tive, and anoth­er inves­ti­ga­tor have died, but sev­er­al oth­ers said they are still con­vinced of Washington’s involve­ment because he seemed to know so many details. According to a typed con­fes­sion that Washington signed but could not read, he cor­rect­ly said that the radio was on and the rape took place in a bed­room. Police also tes­ti­fied that when they showed Washington a shirt believed to have been left behind by the killer, he said it was his. And when they point­ed out Williams’s apart­ment, Washington said he rec­og­nized it and had escaped over the fence.

You would have to be asso­ci­at­ed with this crime in some fash­ion to know that,” said H. Lee Hart, now sher­iff of Culpeper County.

Washington, who recant­ed his con­fes­sion almost imme­di­ate­ly, has a sim­ple answer for where he got the infor­ma­tion: It’s the cops that tell me everything.”

If that’s true, said Culpeper Police Chief C.B. Jones, then Washington has to take the blame for what hap­pened later.

If he did­n’t do it, then he did a mis­car­riage of jus­tice. Even with his IQ, he knows bet­ter than that,” Jones said. Some good peo­ple were involved in that case. They did­n’t con him into confessing.”

Clifford Williams now won­ders whether the author­i­ties were as sure of their case as they claim. In the weeks after his wife’s death, Culpeper police found sev­er­al hairs in the pock­et of the shirt that was left behind, and they asked the lab to run com­par­isons with hair sam­ples from five suspects.

But when Washington was arrest­ed a year lat­er, Investigator K.H. Buraker told the lab not to com­pare Washington’s hair with those in the shirt, accord­ing to lab records.

You should run every piece of evi­dence and not pick and choose who you are going to pin it on,” Williams said. If it had been test­ed back then, maybe then the inves­ti­ga­tion could have gone in anoth­er direc­tion while the trail was still hot and not 18 years later.”

Buraker, now a cap­tain with the Culpeper police, said he did not remem­ber why he did not want the com­par­i­son done. The hairs from the shirt have disappeared.

Hiring a Lawyer

Although Washington was eli­gi­ble for a court-appoint­ed lawyer, his fam­i­ly and the local NAACP were so con­cerned that local attor­neys would feel uncom­fort­able defend­ing a black man on charges of rap­ing and mur­der­ing a white woman that they hired a black lawyer from 35 miles away.

Neither John W. Scott Jr. nor his young asso­ciate, Gary A. Hicks, had ever han­dled a cap­i­tal case. They imme­di­ate­ly asked a judge to throw out the confession.

But pros­e­cu­tor John C. Bennett argued that the police had act­ed prop­er­ly, and the court ordered a men­tal health eval­u­a­tion. Bennett, now in pri­vate prac­tice, did not respond to sev­en phone mes­sages and a let­ter sent to his office.

The state’s expert, psy­chol­o­gist Arthur Centor, con­clud­ed that Washington, despite his illit­er­a­cy and low IQ, would have the capac­i­ty to under­stand the Miranda warn­ings … and make a know­ing and intel­li­gent waiver.”

Centor, now retired, stands by that eval­u­a­tion. He was com­pe­tent to give the state­ment. Whether it was a valid state­ment is not some­thing I’m com­pe­tent to judge.… That’s for the jury,” he said.

The two Circuit Court judges who han­dled the case, F. Ward Harkrader Jr. and David Berry, declined to comment.

Scott said he did not ask for pub­lic mon­ey to hire an inde­pen­dent men­tal health expert to counter Centor because he thought the court would turn him down.

A year after Washington’s tri­al, the U.S. Supreme Court ruled that a defen­dant in a cap­i­tal case was enti­tled to his own men­tal health expert. Legal ana­lysts said that an expe­ri­enced death penal­ty lawyer would have known the issue was on appeal and would have tried to raise it.

Using 20 – 20 hind­sight, it was a mis­take,” Scott said. But under the cir­cum­stances, we did the best we could.”

Defense experts can be vital to point out the holes in a case that police and pros­e­cu­tors may ignore or gloss over, ana­lysts said. Once police get the con­fes­sion, the pros­e­cu­tor is hap­py to say, Oh, now I can get rid of this case,’ ” said University of Richmond law pro­fes­sor Ron Bacigal.

The three-day tri­al went bad­ly for Washington. Scott failed to get the shirt evi­dence sup­pressed, even though Washington’s sis­ter, Alfreda Pendleton, told the jury that she did all her broth­er’s laun­dry and had nev­er seen the shirt. The com­mon­wealth said I was just up there say­ing things to pro­tect Earl. I felt that, regard­less of what I said, they had already decid­ed the case, that he was guilty,” she said.

Washington did no bet­ter on the stand. He not only denied com­mit­ting the offens­es but also denied ever mak­ing the con­fes­sions. In the process, he looked like a liar, sev­er­al jurors said.

Scott made no men­tion in his brief clos­ing argu­ment of the seri­ous incon­sis­ten­cies in Washington’s con­fes­sion, and he said noth­ing about the lack of blood or oth­er phys­i­cal evi­dence. We argued his basic IQ and edu­ca­tion back­ground.… There were an awful lot of things” to tell the jury, Scott said.

The jurors, though, remem­ber the tri­al differently.

I fig­ured the defense was say­ing he was guilty, too, because they did­n’t put on much of a case,” said juror Jacob Dodson, now 51. The only thing they chal­lenged was his [state­ment], but the judge ruled that admissible.”

Scott said he believes there was immense social pres­sure to send Washington to the elec­tric chair. I did a clos­ing argu­ment … and I heard peo­ple chew­ing gum. I heard news­pa­pers rat­tling,” he said. I have nev­er had such a feel­ing that I was climb­ing this wall by myself.”

The jury delib­er­at­ed for just 50 min­utes before find­ing Washington guilty. It took them 90 min­utes to rec­om­mend a death sentence.

After what we heard, I did­n’t think we had a choice,” said juror Frank Crescenti, now 76. Thank good­ness for DNA.”

Close to Execution

After the U.S. Supreme Court reject­ed Washington’s appeal in 1985, he came with­in five days of his exe­cu­tion date before a team of legal vol­un­teers got a stay.

When Scott turned over his files to Robert Hall, the Fairfax County lawyer made a star­tling dis­cov­ery: State lab­o­ra­to­ry tests had dis­cov­ered semen that was blood type A on a bloody blan­ket from Rebecca Williams’s home.

Both Washington and Clifford Williams were blood type O.

It jumps right out at you that we’re deal­ing with a third par­ty who has­n’t been iden­ti­fied yet,” Hall said.

Yet Scott had told the jury noth­ing of the con­tra­dic­tion. He acknowl­edged in a 1989 affi­davit that he had scanned the report but did not real­ize its sig­nif­i­cance. Prosecutor Bennett tes­ti­fied dur­ing an appeal that he knew the blood types did­n’t match but believed the dif­fer­ence was explain­able” if the semen had been con­t­a­m­i­nat­ed with Rebecca Williams’s vagi­nal flu­id, which was blood type A.

When the case reached the 4th Circuit, Phillips and two oth­er judges ordered new hear­ings on the blood evi­dence. But U.S. District Judge Claude M. Hilton sub­se­quent­ly ruled that the blan­ket results were incon­clu­sive and would not have affect­ed a jury. Hilton did not respond to requests for comment.

That rul­ing, Phillips said, put the 4th Circuit in a bind when it heard the case again. Although all three judges agreed that Scott’s fail­ure to intro­duce the lab report was incom­pe­tence,” Phillips and J. Harvie Wilkinson con­clud­ed that Hilton’s deci­sion on the fac­tu­al evi­dence was not clear­ly erro­neous.” Neither Wilkinson nor the dis­sent­ing judge, John Butzner, would comment.

The les­son from that case is the absolute neces­si­ty that when­ev­er peo­ple are charged with these heinous crimes, that they have real­ly com­pe­tent lawyers at the tri­al lev­el,” Phillips said. Once things go off track at the tri­al lev­el, it is very dif­fi­cult to undo the damage.”

Phillips also faults Virginia offi­cials for defend­ing Washington’s con­vic­tion so vig­or­ous­ly in spite of the seri­ous errors. I remem­ber one of the state’s lawyers, how out­raged he was that any­one could think that any­thing so ter­ri­ble as the con­vic­tion of an inno­cent man could ever hap­pen in the state of Virginia,” the judge said.

The state’s lawyers declined to com­ment. But Stephen Rosenthal, who over­saw the case as act­ing attor­ney gen­er­al, said the office had done its job properly.

Before any of the DNA test­ing, we did­n’t believe there was enough evi­dence of inno­cence to off­set our duty to pro­tect a valid jury ver­dict,” he said. But, he added, nobody on either side of this case has been very flex­i­ble, and per­haps that’s a les­son to be learned.”

Analysts said the judges are to be fault­ed as well. The prob­lem in Virginia is inad­e­quate appel­late review. If mis­takes are made ear­ly on, they don’t get caught,” said Washington and Lee University law pro­fes­sor Roger D. Groot. These cas­es just roll on through.”

Nationally, two-thirds of death sen­tences are over­ruled, com­pared with just 18 per­cent in Virginia, accord­ing to a study by Columbia University law school.

Washington was mov­ing toward exe­cu­tion again when Rosenthal learned in 1993 that sci­en­tif­ic advances had made it pos­si­ble to do addi­tion­al DNA test­ing. He ordered the lab work – even before the defense put in a request.

The results thrilled Washington’s defense team: The test­ing found genet­ic mate­r­i­al that could not have come from Washington or Clifford Williams.

Washington’s attor­neys were con­vinced he had been exon­er­at­ed, as Rebecca Williams’s dying words point­ed to a sin­gle attack­er. But Virginia’s strict 21-day dead­line for reopen­ing a case based on new­ly dis­cov­ered evi­dence had long since passed. Legally, the DNA results were irrelevant.

So the defense team took a gam­ble. They dropped their appeals and asked then-Gov. L. Douglas Wilder (D) for a par­don. Wilder learned that the DNA results could not com­plete­ly rule Washington out.

I sus­pect­ed the evi­dence showed some kind of coer­cion in the con­fes­sion, but I did­n’t have the proof,” Wilder said.

In 1994, Wilder com­mut­ed Washington’s sen­tence to life in prison and urged the leg­is­la­ture to change the 21-day dead­line for sub­mit­ting new evi­dence so that the inmate could go back to court.

Six years passed. Washington’s par­ents died, and the inmate grew increas­ing­ly depressed. I was mad with myself for get­ting my hopes up,” Washington said.

Then, last win­ter, his attor­neys learned that DNA tech­nol­o­gy had improved to the point that their client could be ruled out entire­ly. They turned to Gilmore, who ordered the new tests.

This time, the results showed no trace of Washington at the crime scene. The semen on the blan­ket had DNA that matched the genet­ic fin­ger­print of a man already impris­oned for rape. The last remain­ing vagi­nal swab had faint traces of DNA from an unknown man who was nei­ther Washington, Clifford Williams nor the felon – widen­ing the mys­tery. State police are ques­tion­ing the impris­oned felon, but he has not been charged.

The gov­er­nor par­doned Washington for the mur­der. But he left the inmate in prison to serve the remain­der of his 30-year sen­tence for the Weeks attack. The parole board is con­sid­er­ing Washington’s release, and he will be eli­gi­ble for manda­to­ry parole Feb. 12.

Gilmore’s legal coun­sel, Walter Felton, says the case points to the need for reform. The gov­er­nor’s office is not the place to retry cas­es,” he said. The courts are the right forum with the right rules to look at new evidence.”

Timeline of a Tainted Death Penalty Case

June 4, 1982: Rebecca Lynn Williams, 19, a Culpeper moth­er of three, is stabbed 38 times in her apart­ment. Before pass­ing out, she tells her hus­band and a neigh­bor that she was raped and stabbed by a black man.

May 21, 1983: Earl Washington Jr. is arrest­ed by Fauquier County deputies after he breaks into the home of a neigh­bor and hits her with a chair. During two days of ques­tion­ing, he con­fess­es not only to attack­ing the neigh­bor, but also to a series of unre­lat­ed crimes, includ­ing the Williams killing.

Nov. 2, 1983: A judge rules that pros­e­cu­tors can use Washington’s con­fes­sion because the defen­dant under­stood his rights.

Jan. 18 – 20, 1984: Washington is tried and con­vict­ed of cap­i­tal mur­der, and the jury rec­om­mends the death penalty.

May 13, 1985: Following the lead of the Virginia Supreme Court, the U.S. Supreme Court upholds Washington’s con­vic­tion. Virginia offi­cials then set a Sept. 5 exe­cu­tion date, though Washington has no lawyer.

Aug. 27, 1985: The New York law firm of Paul, Weiss files for a stay of exe­cu­tion, which is grant­ed five days before the planned electrocution.

Dec. 19, 1991: The 4th U.S. Circuit Court of Appeals sends the case back for new hear­ings after learn­ing that Washington’s blood type does not match the blood type of semen found on a blan­ket at the crime scene.

Sept. 17, 1993: After a low­er court decides that the blood type evi­dence is incon­clu­sive, the 4th Circuit upholds the death sen­tence, 2 to 1.

Oct. 25, 1993: A DNA test done by the Virginia state lab­o­ra­to­ry finds genet­ic mate­r­i­al on Williams’s body that could not have come from Washington. But Virginia’s 21-day rule pre­vents Washington from going back to court.

Jan. 14, 1994: Gov. L. Douglas Wilder com­mutes Washington’s sen­tence to life in prison but does not par­don him.

June 1, 2000: Gov. James S. Gilmore III orders a new round of DNA test­ing. The results find no trace of Washington at the mur­der scene.

Oct. 2, 2000: Gilmore par­dons Washington for the cap­i­tal mur­der and reopens the inves­ti­ga­tion into Williams’s death.

December 2000: Washington, who is still serv­ing a 30-year term for the attack on his neigh­bor, is being con­sid­ered for ear­ly release, and a deci­sion is expect­ed shortly.