New York Times

By FRANCIS X. CLINES

RICHMOND, Va., Sept. 6 — Lawyers for Earl Washington Jr., a mod­el pris­on­er with the men­tal devel­op­ment of a 10-year-old, filed a peti­tion today for a full par­don after 17 years in prison, 6 years after a DNA test raised strong doubts about his con­vic­tion in a rape and homicide.

Even as the peti­tion was filed, the lawyers were await­ing results of a more defin­i­tive DNA test that they said in the peti­tion they were cer­tain would clear Mr. Washington of the crimes.

The new DNA test was ordered by the gov­er­nor in the spring. Though Mr. Washington’s lawyers main­tain that the test usu­al­ly takes a month or less to com­plete, a spokesman for the gov­er­nor said the test was not concluded.

His lawyers, who spe­cial­ize in the increas­ing­ly suc­cess­ful DNA chal­lenges of crim­i­nal con­vic­tions, describe Mr. Washington as an ami­able, pas­sive farm­hand with an I.Q. of 69 who has a weak­ness for agree­ing with author­i­ty fig­ures. They main­tain his case is a sum­ma­ry of the main prob­lems prompt­ing the ris­ing nation­al con­cern about fair­ness in cap­i­tal con­vic­tions: race, men­tal inca­pac­i­ty, pros­e­cu­tions based sole­ly on con­fes­sions, appeal lim­i­ta­tions and the inevitable pres­sures of politics.

Mr. Washington was only days from exe­cu­tion in 1994 when his death sen­tence was com­mut­ed to life by for­mer Gov. L. Douglas Wilder, a Democrat, after the ini­tial DNA test. That test raised the pos­si­bil­i­ty that some­one else might have been involved in the crime, but state offi­cials insist­ed it was not con­clu­sive. Mr. Washington accept­ed the offer of life with­out parole, but a bat­tery of lawyers has con­tin­ued to fight to over­turn his conviction.

“Earl’s case has it all, begin­ning with bad lawyer­ing and a false con­fes­sion,” said Barry C. Scheck, a pro­fes­sor at the Benjamin N. Cardozo School of Law at Yeshiva University, who is co-direc­tor of the Innocence Project, a pro bono DNA defense program.

Defense lawyers expressed con­cern that Gov. James S. Gilmore III, a Republican close to Gov. George W. Bush of Texas, the Republican pres­i­den­tial can­di­date, might choose to ​“split the baby” polit­i­cal­ly and keep Mr. Washington in prison as part of a 30-year sen­tence in an assault case not con­nect­ed to the mur­der. Typically, the assault con­vic­tion by itself would have mer­it­ed parole by now, they noted.

“That’s a ridicu­lous and unsub­stan­ti­at­ed thing to say,” Governor Gilmore’s spokesman, Mark A. Miner, said in reject­ing any sug­ges­tion that pol­i­tics was a fac­tor in the case. He not­ed that Mr. Gilmore had ordered the new DNA test in the first place. ​“The gov­er­nor takes each peti­tion very seri­ous­ly and per­son­al­ly reviews the details,” Mr. Miner said.

Mr. Washington was con­vict­ed of rap­ing and mur­der­ing Rebecca L. Williams, a 19-year-old moth­er of two, in Culpeper, Va., in 1982. During years of legal crit­i­cism, police and pros­e­cu­tors have defend­ed their meth­ods, not­ing that a fed­er­al appeals court upheld the con­vic­tion in 1991. The court did so while find­ing that Mr. Washington was ​“eas­i­ly led” by the police and that the pros­e­cu­tion evi­dence — the con­fes­sion — pre­sent­ed ​“dif­fi­cul­ties for any fair- minded jury.”

The Culpeper police chief, C. B. Jones, who head­ed the Williams inves­ti­ga­tion, empha­sized that it was a jury, not the police, who found Mr. Washington guilty. ​“Even if he did­n’t do the rape, there’s still a pos­si­bil­i­ty he did the oth­er,” Mr. Jones said when asked about the lat­est DNA appeal.

The police began ques­tion­ing Mr. Washington about the unsolved mur­der and three oth­er sex­u­al assaults when he was arrest­ed in 1983 after a drunk­en fam­i­ly dis­pute in which he assault­ed a neigh­bor. Agreeing to waive his right to a lawyer, Mr. Washington ini­tial­ly con­fessed to all four unsolved crimes, but three of the inquiries were lat­er dropped when evi­dence and wit­ness­es con­tra­dict­ed his con­fes­sions. ​“I guess I told them what they want­ed to hear,” Mr. Washington said in an inter­view this sum­mer at Keen Mountain Correctional Center in south­ern Virginia. ​“I did­n’t com­mit the mur­der,” he added. When asked why he con­fessed, Mr. Washington was almost inaudi­ble as he answered with a smile and a shrug, ​“I don’t know.”

His con­vic­tion was based on a con­fes­sion con­struct­ed of one-word ​“yes” answers to a series of lead­ing ques­tions. The tran­script showed detec­tives repeat­ed­ly cor­rect­ing, if not coach­ing, Mr. Washington when he offered erro­neous details, such as misiden­ti­fy­ing the crime scene, con­fess­ing at first to stab­bing the vic­tim twice­when her body bore 38 wounds, and iden­ti­fy­ing the vic­tim as black.

Mr. Washington, a 40-year-old black man, quick­ly cor­rect­ed him­self when con­tra­dict­ed. ​“Well that’s wrong, Earl, she was white,” a detec­tive informed him about the vic­tim after one cru­cial answer, accord­ing to the inter­ro­ga­tion tran­script that appeal lawyers under­lined after his conviction.

“Oh, she was white,” Mr. Washington amended.

“You can get Earl Washington to agree he shot President Kennedy or did just about any­thing else,” said Eric M. Freedman, a pro­fes­sor at Hofstra University. He has helped Mr. Washington across 15 years of court and exec­u­tive appeals, argu­ing that his retar­da­tion was exploit­ed repeat­ed­ly in the crim­i­nal justice system.

Mr. Washington’s orig­i­nal defense did not chal­lenge the con­fes­sion or bring to light serol­o­gy evi­dence that no trace of the defen­dant was found on a blan­ket used in the rape and homi­cide. The lawyers who lat­er took up his cause empha­sized that their task was great­ly bur­dened by the fact that Virginia has one of the most restric­tive appeal pro­ce­dures in the nation, allow­ing only 21 days after sen­tenc­ing to present new evi­dence. In con­trast, the most lib­er­al states set no time limit.

“This nec­es­sar­i­ly politi­cizes the appeal process by leav­ing it sole­ly in the gov­er­nor’s hands,” said Peter Neufeld, co-direc­tor of the Innocence Project. Mr. Neufeld con­ced­ed that part of the rea­son for mak­ing the par­don peti­tion pub­lic was to open­ly press the gov­er­nor to reject keep­ing Mr. Washington in prison sole­ly for an assault conviction.

The new DNA test is more sophis­ti­cat­ed than the orig­i­nal in being able to check at least 13 genet­ic mark­ers for a pos­si­ble match rather than the sin­gle mark­er stud­ied six years ago.

In the last nine years, there have been 67 DNA exon­er­a­tions of inmates across the coun­try. Of these, one in 5 involved con­vic­tions based sole­ly on con­fes­sions, said the Innocence Project, which was involved in 41 of the 67 exonerations.

Before DNA was used as an appeals tool, Virginia was the first state in the nation to use genet­ic tech­nol­o­gy in cre­at­ing a DNA iden­ti­ty bank to which state felons are required to pro­vide blood sam­ples. The decade-old pro­gram con­tains more than 120,000 sam­ples and has been used to find sus­pects who matched DNA evi­dence in about 30 killings and more than 150 other crimes.

In their opti­mism, Mr. Washington’s lawyers have spec­u­lat­ed that the DNA bank might be pow­er­ful enough now to iden­ti­fy anoth­er par­ty as Mrs. Williams’s mur­der­er, pro­vid­ing Mr. Gilmore with a dra­mat­ic out­come for the Washington case.