Wrongly Convicted, Almost Executed, Awarded $2.25M

Here's an article about yesterday's jury award of $2.25 million to Earl Washington, whom the state of Virginia came within days of killing for a crime he had been clumsily and obviously framed for. Washington is mentally retarded, poor, and black. White cops in Culpeper, Virginia, interrogated him and fed him information about the crime. They did not take notes for much of this interrogation, and then claimed that Washington knew things that only the killer could have known. But during the sections where they did take notes, they fed him information, and generally when they didn't, he got things wrong. He was guessing and trying to please them, but he still usually got things wrong. Will the state of Virginia rethink its rule barring admittance of exculpating evidence found later (such as DNA)? Or will it, as the Innocence Project is urging, require the videotaping of all interrogations? Time will tell. This was certainly a long time coming.

Here's Washington's story, as I wrote it years ago:

The case of Earl Washington: a four-part series

OVERVIEW

Gov. James Gilmore last week ordered new DNA testing on evidence from a 1984 Culpeper case, testing defense lawyers predict will exonerate a local man who has been behind bars for 17 years, 10 of them on death row.

Gilmore on June 1 ordered additional testing in the case of Earl Washington, a mentally retarded man from Bealeton convicted at age 24 of having raped and murdered Rebecca Lynn Williams in June of 1982 at Village Apartments on Willis Lane in Culpeper.

Washington was picked up 11 months after the crime on an unrelated charge. He was tried for capital murder in Culpeper Circuit Court, found guilty by a jury Jan. 20, 1984, and sentenced to death three months later. This was the first imposition of the death penalty in Culpeper in 30 years.

The governor, who has the power to pardon Washington, issued this statement last Thursday: "Since 1994 [when Washington's death sentence was commuted to life in prison by former Gov. Wilder] DNA science and technology have improved to the point that futher testing of the samples taken from the victim might produce more conclusive results than were available to Gov. Wilder."

Since it was first used in the prosecution of a rape case in 1987, DNA testing has become accepted in every court in the country as proof of guilt and innocence. During the 1990s DNA testing freed 64 people from prison and death row, though none from death row in Virginia, as well as forestalling the trials of thousands of suspects and being used in numerous convictions.

Washington's lawyers reported last week that they are pleased with the governor's decision and confident the additional testing will lead to their client being released from prison. The lawyers said they have informed Washington, who is being held in the Keen Mountain Correctional Center in southwest Virginia, of the decision, and that he replied: "That's good. I've been waiting too long."

Until Gilmore announced his decision last week, local officials continued to maintain the right man had been convicted. John Bennett, who prosecuted the case, as well as the current commonwealth's attorney, Gary Close, who covered the case as a reporter for the Culpeper Star Exponent, still say that Washington is guilty. "I'm convinced the correct person was convicted," Close said.

But over the years the case has been covered by local, national and international media, and a growing number of people have come to doubt Washington's guilt. Most recently, the PBS television program Frontline featured Washington and three others in a show titled "The Case for Innocence," arguing that the local man was wrongly convicted and imprisoned.

More than a decade after Washington's conviction, after numerous appeals in the case were denied, Gov. Douglas Wilder, on his last day in office in January 1994, commuted the sentence from death to life in prison.

A team of five people trying to help Washington, four of whom are lawyers, maintains that Washington's innocence has already been demonstrated by DNA tests done in 1993 and 1994, evidence which was available to Wilder but not to the jury at the original trial or to appeals courts that upheld the conviction.

Washington was convicted primarily on the basis of his confession. His lawyers explain that confession by saying Washington, whose IQ has been placed by experts at 69 (100 is average; 69 places him in the bottom 2 percent of the population) tends to answer questions in whatever way he thinks will please his questioners.

The Bealeton man, who was originally arrested for assault and breaking and entering in Fauquier, confessed to several other serious crimes at the same time he confessed to the Williams killing. He pleaded guilty to the assault and breaking and entering charges (technically malicious wounding and statutory burglary) after his Culpeper trial but was cleared of the other crimes to which he confessed after eye-witness testimony and other evidence showed he could not have committed them.

Evidence clearly establishing Washington's innocence never materialized in the Culpeper case, but neither was there much evidence against him aside from his confession. And his current lawyers maintain his attorneys at the time of the trial incompetently failed to pick apart the glaring inconsistencies and inaccuracies in their client's story and the sloppy police work that led to that story being told.

Washington's initial responses to police questioning were incorrect on the question of the victim's race, height and weight, whether anyone else was in the apartment when the crime was committed, whether he took his clothes off, and how he entered the victim's apartment. Washington said he kicked the door in, but there was no sign of that. He said he stabbed the victim two or three times. The autopsy found 38 stab wounds. Washington said he cut himself, but his blood was never found at the scene. Court and police records show that with repeated questioning Washington improved his responses to better fit the facts of the case.

Washington's lawyers say there is no reason to assume any of the officers questioning their client knew he was retarded and easily led along. But led along he clearly was, they maintain, assenting to police descriptions of the crime and altering his answers when they did not seem to satisfy the police. One of the experts who has ranked Washington's IQ at 69, Dr. Ruth Luckasson, wrote in a report for Washington's clemency petition, "All the circumstances surrounding the 'confession' indicate that its contents came (intentionally or not) from the police and were simply parroted back by Earl."

Key pieces of evidence in this case are semen samples from a blanket and from the victim's vagina. Tests of the blanket stain were found to exclude Washington prior to his trial, but the evidence was not presented in court. DNA tests done in 1994 agree with the early conclusion regarding the blanket.

DNA tests of the vaginal sample performed in 1993 also exclude Washington according to a defense expert. The Attorney General's Office maintains that those tests allow for the possibility that Washington raped Williams, as long as there were two rapists or the victim had consensual sex early that morning with someone other than her husband.

But Williams told her husband and the police before she died that there was only one attacker, a black man. There was no mention of a second rapist in the prosecution's case or in Washington's confession.

Around noon on June 4, 1982, Rebecca Lynn Williams, 19, was found naked, bleeding, and dying at the entrance to her apartment. Before Williams died, she reportedly said one black man had attacked her. There were no other witnesses who could identify this attacker. Williams was pronounced dead at Culpeper Hospital at 2:05 p.m. She had children ages 6, 3, and 8 months. The two younger ones were found in the apartment when the crime was discovered.

According to documents provided to Washington's lawyers, a lot of fingerprints that were never identified were found at the crime scene, but none of them were Washington's. Hairs found in the pocket of a shirt allegedly belonging to the murderer have not been tested and compared with Washington's. A shoe impression in the floor mat was thought to possibly be the murderer's, but it was not Washington's.

A composite sketch based on the recollections of witnesses who had seen a black man leaving the building did not match Washington.

An eyewitness said he saw a black man with extra-large muscles in his chest, arms, and upper back leave the scene at the time of the crime wearing a white sleeveless T-shirt. This does not match Washington's physique or the clothing he said he was wearing. He claimed to have kept on a jacket and worn it home, even after he said he'd taken off a shirt because he'd gotten blood on it.

At least 11 suspects were considered during the year following the crime. This is known because their names appear on lab reports at the time from the Virginia Bureau of Forensic Science. One of those suspects, James Morris Pendleton, reportedly lived next door to Williams.

Coincidentally, he also turned up in stories surrounding Earl Washington's arrest for another crime. Pendleton was the brother-in-law of Washington's sister, Alfreda Pendleton. The DNA report on the blanket in 1994 mentioned only two suspects and said both were excluded. These were Pendleton and Washington.

Nearly a year after Williams' murder, on May 21, 1983, Washington, a farm worker, was picked up by Fauquier County deputies in an unrelated matter. He was accused of breaking into the home of an elderly woman there named Helen Weeks and robbing and raping her on the same day as his arrest.

Fauquier deputies D.A. Zeets and Terry Schrum, the officers interrogating Washington, did not know that Weeks would later deny the rape charge. Without any known reason to suspect that Washington had raped Weeks, they asked him if he had, and he said yes.

According to their notes, Washington told the deputies he'd found his brother, Robert Washington, with his girlfriend, and gone across the road to Weeks' house to get a gun he knew she kept there. He said Weeks surprised him while he was in her house searching for the gun, and he hit her with a chair, tried to rape her, took money from her purse, and went back and shot his brother.

Washington later changed his version of what happened, and others' stories of the day's events contradict his, but all accounts agree that Washington went into Weeks' house for the gun and hit her with a chair. Ultimately, Washington would end up pleading guilty, after his murder conviction in Culpeper, to assault and breaking and entering.

Washington confessed to three assaults on females in Warrenton in addition to that on Weeks. He said he had assaulted a woman on Waterloo Road near Fauquier High School. He was never charged, because his confession was inconsistent with the facts of the case.

He confessed to breaking and entering at a woman's home on Winchester Street, but the victim viewed a line-up and said Washington was not the one who did it. He wasn't charged with the crime.

He also confessed to raping a woman on Culpeper Street. Charges were eventually dropped because the victim had identified someone else as the rapist, and her description did not fit Washington.

Eventually, all of the charges were dropped, except for that of breaking in and assaulting Weeks. The attempted-rape charge was dropped in that case.

But when Washington was tried in Culpeper for capital murder, there were three charges still pending against him. When a preliminary hearing was finally held in the Weeks case, the prosecutor asked her if Washington had tried to have sex with her, and she said no. She had never made such an accusation. At that point, Washington was on death row.

According to the court transcript, the judge in the Culpeper trial, David F. Berry, did not allow the charges pending against Washington in Fauquier to be brought up during the trial. But 11 of the 12 jurors said they had already read about the charges against Washington in Culpeper or Fauquier in the newspapers or heard about them on the radio.

After Washington had confessed to four crimes, the Fauquier Sheriff's Office thought to ask about the crime in Culpeper. On the first go-round Washington denied doing it. He was sent back to his jail cell. Later, he reportedly asked to speak to the deputies again, and they asked him again about the Williams murder. "Earl, did you kill that girl in Culpeper?"

According to the police notes, he sat silently for five seconds, then said yes and shook his head and started crying. Shortly after this, the police notes say, the questioning stopped "because of the lack of information concerning the Williams murder." The police did not know Williams had been raped, and Washington did not produce that information.

Eric Freedman, a defense lawyer now working on Washington's case, said he thought the police acted in good faith. "They had no reason to know he was mentally retarded. Earl is a very nice, kind, gentle guy. He says 'Yes, Sir' to everybody. You can have a long converstion with him in which he seems to understand everything."

Freedman said, according to notes taken by the police, Washington said yes to everything asked him, including a description of raping Weeks. "They asked him 'Didn't you do this? Didn't you do that?' Eventually Weeks would say that no such thing ever happened. But they didn't know that yet. So, they started asking him about all of the unsolved sexual crimes on their books."

A leading expert on mental retardation, Ruth Luckasson, professor of special education at the University of New Mexico, has maintained that saying yes is a normal coping mechanism for a mentally retarted person, a way to please and to appear smarter than you are. "When you are less intelligent," Freedman said, "usually the other guy is right and you're wrong. So you tend to agree with him."

CHRONOLOGY

On May 22, 1983, State Police Special Agent C. Reese Wilmore and Culpeper Police Lt. Lee Hart, now Culpeper County sheriff, drove to Fauquier to question Bealeton resident Earl Washington about the rape and murder of Rebecca Williams in Culpeper nearly a year earlier.

They would later report that Washington had confessed to them, identified a shirt from the crime scene as his, and identified the location of Williams' apartment when they drove him through Culpeper.

Prior to Wilmore and Hart's arrival, Washington had another session with Fauquier questioners, during which he "went through the story again." No recording or contemporaneous record has been kept of Wilmore and Hart's initial questioning, but Wilmore described it in court.

According to police testimony, after about an hour of going over the facts, the officers asked Washington their questions again and wrote down his answers. While his statement was being typed up, they drove him around Culpeper in search of the crime scene.

Washington was arrested that same day for the Williams rape/ homicide. Preliminary hearings and appointment of counsel were held June 30 and Aug. 2, 1983, in Culpeper for a trial of Washington on the charge of capital murder. Rape was not part of the charge, though the prosecution would accuse Washington of rape during the course of the trial.

Motion hearings were held in November 1983. At those hearings, Dr. Arthur Centor of Central State Hospital in Petersburg testified for the commonwealth on a motion to suppress confession on Nov. 2, 1983.

Centor reported that Washington had an IQ of 69 and said, "This is at the very upper limits of mild mental retardation. His essential difficulties were in the verbal area, abilities in vocabulary, in information, and in comprehension. Later he said, "I do have an opinion that he does have the capacity to understand the Miranda rights as read to him."

Trial counsel John Scott Jr., who was hired by Washington's sister, Alfreda Pendleton, is now a judge in the 15th judicial circuit sitting four days a week in Fredericksburg and one day a week in Spotsylvania County. Scott never requested nor retained assistance by a mental- health expert to assist him in assessing Washington's mental disability and how it interplays in waiver of Miranda rights, confession and competency. According to Barry Weinstein, one of the lawyers currently working on Washington's case, this "would have made a world of difference."

Washington's current lawyers object to Centor's analysis. Two experts who examined Washington's intelligence for the defense during the appeals process, and another expert, professor Ruth Luckasson, who wrote a report for the clemency proceeding, view him as decidedly retarded. Luckasson wrote in her report of Dec. 17, 1993: "[i]n my professional opinion, Mr. Washington has mental retardation. It is well-documented that he has had this disability since he entered school, and it is likely that he has had it since birth or very early childhood. Throughout his lifetime, he has consistently demonstrated mental retardation. His seriously limited intellectual abilities have had grave effects on his life, and have clearly disadvantaged him during his contacts with the criminal justice system."

By the time of the motion hearings in November 1983, newspapers and radio stations had been reporting on Washington's alleged confessions to the Culpeper crime and an apparently similar crime reportedly committed by Washington in Fauquier.

His lawyers requested the trial not be held in Culpeper on the grounds that jurors would be biased against Washington.

Nine affidavits from local citizens and a statement from the head of the Culpeper NAACP to the effect that Washington could not get a fair trial in Culpeper were presented in court. Judge David F. Berry denied the request for change of venue.

Washington's trial took place Jan. 18-20, 1984. The first day was used for jury selection, the second for the presentation of evidence, and the third for closing arguments and the penalty phase of the trial. Washington was found guilty of capital murder, and the jury recommended he be executed.

In Virginia, there are three phases of a capital trial: the guilt/innocence phase, the penalty phase and the sentencing phase. The jury recommended death at the penalty phase on Jan. 20, 1984. The sentence was imposed by Judge Berry on March 20, 1984.

Scott was appointed to appeal Washington's conviction. On Nov. 30, 1984, the Virginia Supreme Court affirmed the capital-murder conviction and sentence. On Jan. 18, 1985, that court denied rehearing the case.

That same year the U.S. Supreme Court denied review of the case. Washington's execution was set for Sept. 5, 1985, and he was transferred to the since demolished "Death House" at the Virginia State Penitentiary in Richmond to await execution.

Marie Deans, who was the head of a private organization called The Virginia Coalition on Jails and Prisons, convinced the New York law firm of Paul, Weiss, to take up Washington's case, working without fee.

Eric M. Freedman, then a lawyer with the firm, is now a professor at Hofstra University and still working on the case. Robert Hall, an attorney now working in Reston, was brought in as local counsel.

Various other lawyers and experts assisted during the years of appeals that would follow. Two who joined the effort and are still with it are Gerald Zerkin of Richmond and Barry Weinstein, who currently works in Georgia. All of these lawyers are working for free.

Washington's new lawyers filed a state habeas corpus petition on Aug. 27, 1985, which included a great deal of the original press coverage, along with an expert's affidavit about how this would influence the jury. A habeas corpus petition is a court proceeding challenging the legality of a conviction and sentence.

On Dec. 23, 1986, the petition was denied without an evidentiary hearing. The lawyers filed a petition for appeal, and this was denied in February 1988. That same year, the U.S. Supreme Court denied review for the second time.

In July 1988, Washington's lawyers filed a federal habeas petition, which was denied without an evidentiary hearing in October 1989. The lawyers appealed to the U.S. Fourth Circuit Court of Appeals, and argued the case there in June 1990.

In December 1991 the case was remanded to the U.S. District Court for an evidentiary hearing. In July 1992, the petition was again denied.

On Dec. 20, 1993, Washington's lawyers filed a petition for pardon. On Jan. 14, 1994, just as he was leaving office, Gov. Douglas Wilder commuted Washington's death sentence to life imprisonment, citing Washington's confession as reason for not giving him a complete pardon.

The life sentence that Wilder gave Washington allows him the possibility of parole. He is currently serving life plus 30 years for assault in an unrelated Fauquier case.

According to Larry Traylor of the Department of Corrections, Washington is ineligible for mandatory parole because of the life sentence but can be considered for discretionary parole once per year beginning Nov. 29, 2004. Did he not have the life sentence, Washington would now be eligible for parole.

Traylor said he could not reveal a record of Washington's behavior in prison, but the petition for pardon reads, "As a responsible prison official stated to defense counsel, Mr. Washington has been 'a model prisoner.'"

The reason for the partial pardon lies in DNA testing done in 1993 and 1994.

When Washington was convicted, DNA testing was not available. By the mid-1980s, the only testing available was electrophoresis.

This testing was done, Hall said, on seminal fluid on a blanket found at the crime scene. It could not be done on semen from the vaginal area of the victim, because the semen there was mixed with blood, skin, etc.

Hall said the electrophoresis testing on the blanket excluded Washington, according to the state forensic labs. He maintains, and the state lab agrees, that a genetic marker (PGM 2-1) could not have been Washington's or the victim's husband's. It was on this basis that the lawyers filed for habeas corpus.

According to Freedman, this testing is much like that for blood type. It identifies larger groups of people than does DNA testing. "If that excludes you, DNA certainly will."

This information was not introduced in the trial, because - as Freedman said the defense lawyer has admitted - he didn't read the lab report thoroughly or understand it. "It's a big technical document," Freedman explained. "Nothing jumps out at you."

The lead defense lawyer for the trial was Scott. It was on the basis of Scott's failure to introduce the lab evidence at the trial, as well as his failure to make use of police notes from the questioning of Washington, that Freedman and his colleagues appealed the case, claiming ineffectual counsel.

As reported in another paper and recently confirmed by Scott, the defense lawyer said at the time that he did not object to the accusation because "we're talking about a man's life, and he deserves every shot he can take."

The Circuit Court said that whatever the shortcomings in Scott's legal work on the case, this failure was harmless because of Washington's confession - this despite the fact that four similar confessions turned out to be bogus and resulted in dismissed charges or no charges at all.

Scott appeared in the Frontline program that aired in January. In a recent conversation with the Culpeper News, he said the program was actually filmed nearly two years ago. Asked about criticism of his legal performance, Scott said, "Whatever remedy that was pursued and was offered by the court system should have been pursued and was pursued vigorously and should have been pursued vigorously."

When asked about specific parts of the original trial, Scott said, "It is my understanding that this may be considered again to be an active case. As a member of the judiciary, I can't comment on an open case."

By 1993 DNA testing was available, though the technology involved has been evolving rapidly since that time.

Wilder knew of the results of two DNA tests when he commuted the sentence. These tests were performed in 1993 and 1994 by Jeffrey Ban at the state forensic laboratories in Richmond directed by Dr. Paul Ferrara.

The results were sent from the lab to the governor's office. The first test was of semen removed from the vaginal area of the victim.

Ban's report is dated Oct. 25, 1993. The test was performed using the latest technology available, namely a DQ alpha test. It found three alleles: 1.1, 1.2, and 4. An allele is a genetic marker. All humans have two of them, and the combination is referred to as a genotype.

Earl Washington has no 1.1, but has 1.2 and 4. Williams and her husband also have no 1.1. They both have 4 and 4. This means the 1.1 came from someone other than Washington, the victim or her husband.

The Attorney General's Office responded to this with what has been called the unindicted co-ejaculator theory. Some of the semen, this theory contends, could have come from Washington as long as there were two attackers or the victim had consensual sex early that morning with someone other than her husband while her young children were asleep.

The victim reportedly told the police and her husband that there was only one attacker, and the alleged confession from Washing-ton said he did it alone. Dr. James C. Beyer, who did the autopsy, testified that the sperm was less than 12 hours old as of 2:05 p.m.

Williams' husband worked the night shift, and Williams was seen walking outside with her kids in the morning. The consensual-sex version of the theory would have to maintain that she brought someone into her apartment between about 2 a.m. and when her kids woke up.

Freedman said, "There is not a scintilla of evidence for it. It is just a desperate attempt by the state to dream up some way to justify having incarcerated and almost executed the wrong person."

The petition for pardon puts it this way: "To give weight to a theory that would ignore those facts so as to evade the exculpatory force of the DNA evidence would be to undercut the validity of DNA testing in almost all cases, whether the results were favorable to the prosecution or the defense, since it could always be suggested that the adverse results were due to the activities of some mysterious stranger."

The defense maintains there are significant problems in this case with what authors Barry Scheck, Peter Neufeld and Jim Dwyer refer to in their book on the wrongfully convicted, "Actual Innocence," as "the unindicted co-ejaculator theory."

The state had agreed to allow the defense to do its own testing at a lab in Massachusetts, but the sample supplied them was too small to be tested with technologies available, although today such tests can be done on smaller samples.

So, instead, the defense asked Dr. Henry Ehrlich, one of the designers of the DQ Alpha test technology, to interpret the results of the state's test. Ehrlich's interpretation was that the 1.1 and 1.2 alleles were paired -- that is that they came together in the semen -- and that the 4 was from skin cells of the victim.

The defense team maintains that the second test Wilder knew about was not shared with them. It was a DNA test of semen on the blanket found at the crime scene, and the results were consistent with the original test on the blanket stain. The new test found a 1.1,1.2 genotype, exactly what Ehrlich found in the vaginal-swab test.

Ban's report to Walter McFarlane, counsel to the governor, was signed Jan. 14, 1994. It states: "Earl Washington is eliminated as the donor of the HLA DQ alpha types obtained from the blue blanket, stains A, B, and C. . . . It is my opinion that the contributor to the sperm fraction of stain D of the blue blanket is an individual possessing a 1.1,1.2 genotype. Based on that opinion . . . Earl Washington Jr. [is] eliminated as [a] possible [suspect]."

Knowing that this test had been done, but not knowing its results, the defense team accepted Wilder's offer of life imprisonment, and in doing so passed up alternatives for appealing the case further through the courts. This decision had to be made in two hours, and the alternative was for Wilder to do nothing to stop Washington's execution.

"None of us saw the blanket DNA test," Weinstein said. "I was in Richmond at the time. . . . All five of us [Deans, Hall, Zerkin, Freedman and Weinstein] were in on the decision. . . . It was Earl's decision. He was able to understand life and death. Could he understand spending the rest of his life in prison? That's questionable."

The defense team continued requesting the test results following Wilder's commutation, as documented by letters sent by Bob Hall to Walter McFarlane, counsel to Gov. Wilder, and by phone records. They finally learned of the blanket test results after Ferrara gave them to the television show Frontline.

Weinstein said he was very surprised and outraged at not having been shown these results earlier, since the defense team "had a very good working relationship with [Walter] McFarland."

"Up until Marie [Deans] and I actually conveyed Gov. Wilder's commutation offer to Earl," Weinstein said, "we were still inquiring about the results of the DNA test on the blue blanket. Never a response from the Governor's Office."

Wilder and Dr. Ferrara have not returned repeated phone calls from the Culpeper News. Jeffrey Ban declined to comment on the grounds that the Attorney Gene-ral's Office is working on the case.

The Attorney General's Office and the Governor's Office both declined to comment.

On the nationally broadcast Frontline television show in January, Hall said, "I couldn't get beyond the deeply seated feeling that the reason Earl didn't get pardoned, conditional or otherwise, had a political component to it, that when the governor left the office of governor, that he had other ambitions, that he wanted to run for the United States Senate, and that he was afraid that Earl Washington, if pardoned, would

be out on the street and commit some crime and would become -- Earl Washington would become Willie Horton to Gov. Wilder's Senate campaign."

Freedman told the Culpeper News Wilder's concern was "probably less a fear that Earl would commit a new crime -- for which there is no history - than a more general sense that freeing a black convicted of a rape and murder would be bad politics."

John Bennett, who prosecuted the case, recently said, "I don't think it is appropriate for me to comment on the specifics of this case since I am now in private law practice and the case is being handled by the state Attorney General's Office and the commonwealth. I would like to make some general observations.

"I appeared before Gov. Wilder's chief of staff to oppose any executive clemency. . . . I was told Gov. Wilder took the action out of humanitarian concerns for Washington's limited intelligence, that it had nothing to do with the question of guilt in the case."

However, Wilder's statement providing a partial pardon does not state that its motivation is humanitarian concern. Rather, it states, "I am of the opinion that the newly discovered evidence interjects an important element into the case which neither the jury that tried the case nor the courts which have reviewed it since the trial have had the opportunity to consider. Had that opportunity arose [sic], I am of the opinion that their opinions as to the appropriate conclusion may have been different."

"Second," said Bennett, "based on everything I've learned in this case, including watching Earl Washington confess, and notwithstanding the questionable conclusions and outright distortions by advocates on behalf of Mr. Washington, Earl Washington committed the crime for which he was properly convicted in Cul-peper County."

Asked what the questionable conclusions and outright distortions were, Bennett declined to comment.

"The jury felt," Bennett continued, "the vileness of his crime, raping and then repeatedly stabbing a young mother in her home while one of her children was at home was itself sufficient to impose the death penalty.

"I feel certain if the law permitted the jury to hear about Mr. Washington severely beating an elderly lady in her own home in Fauquier County and other criminal involvement, it would have done nothing but reinforce the jury's decision to recommend the death penalty."

Asked what the other criminal involvement was, Bennett declined to comment.

Asked about the case recently, Sheriff Hart said Trooper Wilmore, with whom he worked on the case, was deceased and referred questions to Bennett. Beyond that, Hart declined to comment, saying "The court ruled on that case. It's an old case. The jury decided."

Chief Dep. Kenneth Buracker of the Sheriff's Office, who like Hart worked on the case as a town policeman, said re-opening Washington's case is up to the Attorney General's Office. "I'm confident law enforcement did its job and he was given due process."

Officer C.R. Jenkins of the Culpeper Police Department said any decision to reopen a case has to be made by the commonwealth's attorney.

Commonwealth's Attorney Gary Close said there is very little likelihood the case will be reopened, but that such a decision would have to be made by the police department. "I'm convinced the correct person was convicted," Close said.

THE ORIGINAL TRIAL

Earl Washington, a mentally retarded farm worker from Bealeton, was tried for capital murder in Culpeper on Jan. 18-20, 1984.

Washington was accused of murdering Rebecca Lynn Williams in her Culpeper apartment in June 1982. The defendant had been picked up on an unrelated charge in Fauquier and questioned by police there about the rape/murder of Williams in Culpeper. Local law enforcement officials had gone to Fauquier to question Washington and then driven him around Culpeper to see whether he could identify the crime scene.

Washington, who is mentally retarded, confessed to the Culpeper crime and to several others that evidence showed he couldn't have committed.

The first day of the trial was used for jury selection, the second for the presentation of evidence, and the third for closing arguments and the penalty phase. Washington was found guilty of capital murder and sentenced to die.

Then-commonwealth's attorney John Bennett prosecuted the case, and John Scott Jr. was employed as Washington's lead defense lawyer. Washington's sister had hired Scott to replace defense lawyers appointed by the state.

Bennett currently practices law in Culpeper, while Scott is a circuit-court judge in Fredericksburg and Spotsyl-vania County. Scott said that as a member of the judiciary he cannot comment on an active case.

Judge David F. Berry presided over the case and retired from the bench a month later. Berry lives in Madison and substitutes as a judge occasionally in Culpeper. He has not presided over a case since last September, according to the judges' secretary, and repeated attempts to reach him in Madison have been unsuccessful.

Important witnesses in the case were State Police Special Agent C. Reese Wilmore, since deceased, and Culpeper Police Lt. Lee Hart, now sheriff of Culpeper County.

Bennett told the judge he would argue for capital punishment because the crime "involved torture, depravity of mind and aggravated battery to the victim."

The capital murder charge did not technically depend on a charge of rape, which was not made, but in his closing argument Bennett asserted that Washington had raped Williams as well as stabbing her 38 times.

Fauquier investigator Terry Schrum was the first police officer Bennett put on the stand during the trial. He said "Earl," as he referred to Washington, volunteered, from his jail cell, to talk to him at 12:40 p.m. on May 21, 1983, and confessed to the crime in Culpeper that occurred a year earlier.

Next on the stand was Hart, followed by Wilmore. Wilmore said Hart and Special Agent Hugh Elwood went to Wilmore's house to discuss the case on the evening of May 21. The next morning, Wilmore and Hart went to Fauquier and conferred with Schrum and Dep. Dennis Zeets. Wilmore described questioning Washington.

Washington, Wilmore said, admitted to stabbing the woman in Culpeper. But when asked if she was black or white, he said black. Asked again, he switched it to white.

According to Wilmore's testimony, Washington also said Williams was "kind of short," but she was 5'8". He said she was "not fat, just a little heavy," but she was 180 pounds. He said there was no one else in the apartment, but the victim's children were there when she was discovered.

Washington told the investigators, according to Wilmore, that he didn't take his clothes off, just lowered his trousers. But when asked to identify a shirt, he said it was his and he'd taken it off because it was bloody. He said he kept his jacket on. He said he stabbed the victim two or three times, but the autopsy showed 38 wounds.

Wilmore said in court that Washington described seeing a woman walk along the sidewalk. Wilmore said Washington then recounted entering her apartment through an unlocked door.

But in another version Washington had told the police he kicked the door in and didn't know who lived there. No damage was found on the door.

Washington also said he cut himself, but his blood was never found in the apartment.

Wilmore said Washington looked at a shirt that Hart held up in front of him and said it was his. Asked what was unique about it, Washington pointed to a spot where a patch had been ripped off it. Scott did not ask Wilmore why he didn't have Washington describe the shirt before seeing it.

It was revealed in court how the shirt came into evidence.

Shortly after the crime, Williams' husband, Clifford, moved back in with his parents and brought along a chest of drawers. The police had searched this dresser for a weapon and not noticed any bloody shirt in it.

Clifford Williams' mother took a folded shirt from the dresser and washed it, also not remarking on any blood. She gave the shirt to her son, who said it was not his. So, she gave it to her husband, who wore it to change the oil in his car.

Then, Mrs. Williams washed the shirt, and they decided that it might have been left behind by the murderer. Six weeks after the crime, they gave the shirt to the police. How it got in the drawer remains a mystery. Washington said he took it off because it was bloody. But, according to his confession, it was underneath a jacket he kept on.

Eric Freedman, one of Washington's current lawyers, said during a recent interview, "[The police] asked [Washington], 'This is your shirt, isn't it?' Not, 'What were you wearing that day?'

"This is just incompetence in police training. . . . They try to confirm a theory. . . . Even if the shirt has anything to do with the murder, there's zilch link to Earl."

Many police interrogation manuals, in fact, warn against the risk of obtaining a false confession, particularly if leading questions are used with a mentally retarded witness.

A transcript of Wilmore's questioning of Washington is included in the court record. Washington's story is not especially coherent.

He says two guys he doesn't know drove him to Culpeper for no particular reason, and that they parked the car and he got out at the victim's apartment. That's the last the two guys are heard of in the story. Washington says, in this version, nothing about seeing a woman walking on the sidewalk. He says, rather, that he kicked the apartment door in and didn't know whose apartment it was. Upon urging, he says the door was unlocked. He does not explain why he kicked it in or how he knows it was unlocked.

Then he says he stabbed the woman once or twice, although the autopsy report showed 38 stab wounds. Scott never raised these questions during the trial.

Washington's confession consists largely of numerous responses of "Yes, sir," to questions asked by Wilmore and Hart. Washington was not himself able to produce information about the crime to which he was confessing.

After questioning Washington in Fauquier, Hart and Wilmore drove him to Culpeper so that he could point out the apartment where the crime occurred. In a preliminary hearing before the trial, Hart said Washington volunteered that he wanted to show them the crime scene.

Hart drove, with Washington in the front seat and Wilmore sitting behind Washington. Hart said they took Washington to several apartment complexes, and that he said they were the wrong place.

When they came to Village Apartments, where the murder occurred, Hart said, Washington first said it was not the right place, and then said "wait." This reportedly occurred twice. Then Wilmore pointed to the right apartment and asked Washington if that was the one. He agreed that it was.

In Wilmore's testimony during the trial, he said Washington at first directed them to the wrong place. They then took him to others, which he told them were wrong.

When they came to Village Apartments, it took three tries and parking there to get Washington to point out an apartment, which was the wrong one. Then Wilmore pointed to the right one, and Washington agreed, claiming he'd known it all along.

Scott did not question the inconsistencies in these stories. Although Hart was put on the stand three times during the trial, Scott declined to cross-examine him all three times.

Wilmore also testified that Washington pointed to a fence separating the neighborhood from Route 29 and said he had "crossed the fence in that location," the same place where a witness had seen a black man cross the fence.

After the crime, Washington had told the police, he hitchhiked a ride with a white man, and threw the knife out the window of the car. This man was never identified, and the story of Washington's ride with him never developed in detail. For example, we do not know whether the man saw Washington throwing the knife out of the car window. The knife was searched for but not found.

Scott brought up the fact that Washington has a very low IQ, but did not use this to explain that he confessed to please the men questioning him. In fact, Scott hardly questioned the investigators' techniques at all. Instead, he put Washington on the stand, where his client denied he had made the confession.

"Presumably, that wasn't the plan," said Freedman. "Presumably the plan was to have Earl say, 'I didn't do any of those things,' not to deny signing the confession. When he denied signing the confession, the prosecutor had a field day."

Freedman said the jury was entirely justified in its verdict based on what it saw: a signed confession, a denial of signing it, and not enough of Earl to understand his retardation. "It was an absolutely incompetent defense. This case was the same pattern as three that were dismissed."

Washington, on the stand, was unable to remember or understand very much. He could not keep his facts straight, but said he was sure of his answers. He repeatedly contradicted himself if asked things twice, apparently under the impression that he'd gotten it wrong the first time. For instance, he said he got no sleep before being questioned by Schrum and then said he did get some sleep before that questioning.

Washington also answered questions and then admitted being unable to comprehend them, as in this se- quence: "Did you rape anybody?" "No, sir." "Do you know what it means by the word rape?" "No, sir."

In cross-examination, Bennett asked Washington:

"OK, do you know Investigator Schrum at the Fauquier Sheriff's Department?" "I done seen him." "You heard him testify today?" "Yes, Sir." "And all the things that he said weren't true?" "No, Sir."

"He was lying, is that it?" "The only thing I understand, I didn't say none of the stuff they said today." "Well, if you didn't say those things, he was lying then, is that the case?" "Well, I guess they was." "Well, is he lying or isn't he lying?" "I get . . . will you repeat that again?" "Was Investigator Schrum, when he came in here and testified that you killed Rebecca Lynn Williams, was he lying or wasn't he lying?"

"He was lying." "Do you know Investigator Schrum? Had you seen him before you talked with him that day?" "Now, who are you saying?" Etc. . . .

Scott declined to re-direct.

The only other defense witness was Washington's sister, Alfreda Pendleton, who regularly did the defendant's laundry and said she did not recognize a shirt the murderer had allegedly left at the crime scene.

Bennett's entire cross-examination of Alfreda Pendleton was this: "Ma'am, you're a sister to the defendant by blood?" "Yes." "You love your brother?" "Sure, I love all my sisters and brothers." "OK . . . you want to do anything you can to help him, don't you?" "Yes, well, also I'm telling the truth." "I didn't say anything about your not telling the truth, but. . . ." "OK, yes." "You brought that up." "Yes." "That's all the questions I have."

Bennett then put Hart and Wilmore back on the stand to restate the importance of the signed confession they had obtained. Scott offered nothing in reply. The jury was sent home to come back and hear closing arguments in the morning.

In his closing argument, Bennett said, "You saw the investigators testify, that if you were to even begin to believe what Mr. Washington would say, you would have to believe that the police in this case, the police in two different counties, had some sort of mass conspiracy to falsely accuse this man for an offense which is a very serious matter. . . ."

Scott's closing argument didn't mesh with his case. He had put Washington on the stand, where he denied making the confession at all. He had not presented any arguments for why Washington would have confessed falsely. But in his closing argument, Scott said:

"Now one of the instructions that you will have with you, of the instructions read to you by the court this morning, has to do with the weight to be given Earl Washington's statement, his confession, and it has to do with whether or not you believe that confession was given freely and willfully and on the basis of that consideration you are entitled, as jurors, to give that statement as much weight or as little weight as you deem appropriate.

"You saw Earl Washington. You heard him. I respectfully submit, and this is argument, that the commonwealth's assertion that Earl Washington claims that a conspiracy took place among law enforcement officers is misplaced. Earl Washington doesn't probably know what a conspiracy is."

The jury found Washington guilty in less than an hour -- although one juror, Debra Holmes, told Frontline that she always knew it was a mistake.

The jury stayed out for an hour and a half deciding what sentence to give Washington. Part way through this time, the jurors came back out to ask the judge exactly what "life imprisonment" meant. The judge refused to offer them any help, and Scott had already agreed without argument that he needn't do so. The jury retired and came back with a death sentence.

One of the jurors, Jacob Dodson, recently told the Culpeper News, "I would have preferred life in prison if it was life in prison [without parole]." The U.S. Supreme Court held in 1994 that jurors have to be given an answer to this question.

"The penalty phase was another extremely poor performance [by Scott]," Freedman said, referring to the part of the trial after guilt had been decided and when the death penalty was chosen by the jury.

This phase is usually the time for a defense lawyer to present mitigating factors, including reminding the jury of any residual doubt as to the defendant's guilt. Scott did not do this.

Bennett, in contrast, put on powerful victim-impact evidence. The mother of the victim took the stand and described how the victim's children tried to talk to their mother in heaven on a toy telephone.

"The Supreme Court has been back and forth on whether that's legal," Freedman said. "But it's completely inappropriate. The matter at hand is the moral character of the defendant, not the effects of the crime. And it's an equally bad crime whether the victim had no children or 10 children."

PEOPLE INVOLVED LOOKING BACK

Before the guilty verdict was read in the Culpeper Courthouse on Jan. 20, 1984, convicting Earl Washington of capital murder, Washington's defense lawyer, John Scott Jr., advised Washington's relatives how to behave.

According to James Grayson, a second cousin, "Scott told us not to make any wrong moves when the verdict was read, that the police had orders to shoot. And they put four policemen in front of us with their hands on their guns when they read the guilty verdict. . . .

"How can they live with themselves knowing that they put an innocent man away and the guilty one is still out there? They haven't solved any crime. It makes my temperature boil every time I get to talking about it."

Alfreda Pendleton, Washington's sister, confirmed the story of the officers with their hands on their guns. She said she thought it might have been because "I was crying partly throughout the whole thing. And in my testimony I got loud a couple of times."

Grayson has kept closest to Washington during his years in prison. If Washington is ever released, he will probably go to Grayson's house in Bealeton, Grayson said.

A couple of miles away is the spot where stood the last house Washington lived in. He stayed there with his sister, Pendleton, and a number of other relatives.

Pendleton lives in Manassas now. Linda Lambert, another sister, moved to Culpeper. Shirley Cuesenberry, a half-sister, may live in Leesburg.

Years have passed. In May, Washington marked his 17th year in prison.

He's been in a half-dozen Virginia prisons. Last October he was moved to Keen Mountain Correctional Facility in Oakwood, where he was recently informed of Gov. James Gilmore's decision to have additional DNA testing done in the case, testing Washington's lawyers say will demonstrate his innocence.

In 1995 both of Washington's parents died, and the prison refused to allow him to attend their funerals.

The small children of Rebecca Williams, the victim of the crime for which Washington went to prison, are now in their 20s.

Clifford Williams, husband of the victim in this case, remembers his young wife fondly. He carries a tattoo on his arm with two hearts and the names Cliff and Becky.

Williams returned from working the night shift in June 1982, to find his 19-year-old wife bleeding to death on the sidewalk in front of their apartment, surrounded by police and onlookers.

The Williams' two youngest daughters, Melinda May and Misty Michelle, were in the apartment when the crime occurred. As Becky Williams was being put on an ambulance, the oldest daughter, Melissa Marie, got off her school bus.

"We called them the M&M gang," Cliff Williams says of his daughters' alliterative names.

Cliff Williams says he turned to drugs and alcohol to fight off the pain, and ended up losing custody of his three daughters to his mother-in-law. A few years later, his mother-in-law left the Culpeper area with the girls.

Now Williams, 40, is a machine operator working in Brandy Station and living in Orange County. He recently remarried, and his new wife, Drema, talked him into trying again to locate his kids.

He has tracked them down in California and will be flying there June 30 to visit them.

Williams hasn't seen his daughters in 12 years, and now knows that he has two grandchildren, with a third on the way. When he talks about this trip, Williams' voice shifts from anger to elation. He laughs with joy repeatedly as he talks about this happy turn of events.

The Washington Post reported that Williams had written to Gov. Gilmore requesting that the new DNA testing not be done. Asked about this, Williams told the Culpeper News, "Yeah, we wrote him letters saying how we felt about it, and explained to him what it was like. . . . It felt like it was pretty much a done deal with all the other evidence and stuff like that. I'm convinced in my heart this is the man that did it without a shadow of a doubt."

Williams said it would make no difference to him if the DNA test came back excluding Washington. He said Washington identified a shirt and showed the police the location of the crime.

" . . . I don't understand the full impact of the DNA testing. I hope they're going to look at all the evidence . . . . If they want to pardon him, then they should, you know, re-open the case and do it all over again 'till they find out who did it. But, like I say, I'm pretty-well convinced he did it. There's no way he could have told the police the things he did if he wasn't the one who did it. . . .

"The newspapers are always talking about this poor, retarded black man from Bealeton. I've been hearing that for so many years. The state mental hospital found he had an IQ of 69, but that's mostly low because he didn't have much education. There was nothing else wrong with him."

Williams cited an Oct. 21, 1983, statement from Central State Hospital which found that Washington was "competent to plead and stand trial and does not lack substantial capacity to comprehend the proceedings against him or to assist in his own defense."

Williams also quoted a Nov. 30, 1984, appeal review by Judge David F. Berry, which said, "Dr. Centor testified that the defendant, when asked correctly . . . demonstrated more familiarity with the justice system than many intelligent laymen."

Did Williams think it was possible Washington could have answered "yes" to police questions in order to please the police? "No. After all, he got away with it for a year and did it in broad daylight and was slick enough to get away. That tells me something about him. He wasn't caught until he beat up and raped an old woman in Warrenton and shot his brother in the foot."

Williams is referring to the incident for which Washington was picked up. The attempted-rape charge in that case was dropped when the alleged victim said he hadn't tried to rape her.

Williams said he was convinced of Washington's guilt because the prisoner gave a description of the shirt allegedly left by the murderer. However, according to court records, he gave that description upon being shown the shirt -- not before.

"He showed the exact location of where he jumped over a fence, and it was the same spot where eyewitnesses saw a black man go across the fence. I have no doubt in my mind he's the man that did it....

"I wish Wilder would have never gave him a stay of execution," Williams said. "He's in prison, but he's still alive. That's more than what she's got. As a result of all this I've missed the best years of my girls' lives. I've been through hell. They keep bringing it up in the papers. I don't know if it's lawyers trying to get publicity or what."

However bitter Williams is when speaking of Washington and the murder, he grows ecstatic when discussing his upcoming reunion with his children.

"Thank God I found my children!" he said. "I will see them in 17 days!" Williams was speaking on June 13.

Williams said his trip to California is "going to be kind of cool. I get to see my grandkids for the first time and my kids for the first time in 12 years. . . . I'll be there eight days. I'm looking forward to it. I'm really looking forward to it. It's been a long time coming. . . . I feel like I'm finally getting a piece of my life back. I'm getting a grip on things, feeling at ease with myself.

"The day I called my youngest daughter. Bang! That was really something else. Whew! I was so happy! Seventeen days left! I can't wait!"

Barry Weinstein, one of Washington's lawyers, told the Culpeper News this month that he's happy for Williams. "My heart goes out to Clifford Williams and family. I'm quite glad he's able to reunite with his kids. That's really, really nice."

Likewise he's happy for his client that Gov. Gilmore has agreed to additional DNA testing.

Like Grayson, Weinstein regularly accepts collect calls from Washington. Before Gilmore's DNA decision, the attorney told the Culpeper News, "I think Earl knows in his heart that we have not forgotten him. That probably gives him a little hope. . . . He's not a case. He is our client and will remain so. He's the common link among the five of us [working on the case]. . . .

"He's such a good-natured guy. He has probably accepted that way of life. He entered at 22. He will be 40 in May. He was on death row for 10 years. He's been in prison 17 years."

"I've been knowing Earl all his life," said Grayson, a first cousin of Washington's mother. "Earl keeps my telephone bill sky-high. I try to send him a little money, but I'm on disability so it's hard to do. . . . This man should have been out years ago, and all of them know it. They had all the proof that he was innocent at the original trial. They don't want to admit that they was wrong."

Grayson said Washington is cheerful lately, but that for a while he was suicidal. Grayson visited him a few times during that period. "He said it would be bad enough to be in there for something you did, but to be in there for something you know you didn't do and everybody else knows you didn't do really works on you."

Grayson talks about his relative without apparent emotion until he comes to the topic of the funerals of Washington's parents. "I carried money to the funeral home to allow Earl to go to his father's funeral. Then the prison said he couldn't go because they didn't know how his family would accept him.

"A month or so later, his mother died, and they didn't let him go to that either, and for the same ignorant excuse."

Grayson grows angry as he tells what the prison gave him for an option: "They said I could come and visit him on the day of the funeral. Now, how am I supposed to go in the same day to his mother's funeral and down to visit him?"

Larry Traylor, spokesperson for the Department of Corrections, said the prison would not have made the decision on whether to release Washington for a funeral, that it would have been made by Central Classification in Richmond, and that very likely he was not released because he had been on death row, his convictions were for violent crimes and he was in a high-security prison.

Among those asked to remember the trial when each new wave of reporters picks up this story are the 12 jurors who convicted and sentenced Washington to die. Jacob Dodson, who was on the jury, said recently, "Most of it was circumstantial evidence." Asked about the DNA tests, he replied, "We had to go with what we had to go on at the time. I'd say 70 percent of the case was the confession."

Dodson recalled that finding Washington guilty didn't take long at all, and that sentencing him to die took only a little longer because of the question of what a "life sentence" would mean. Dodson could not recall any major disagreements among the jurors.

Marie Deans, who recruited the lawyers now helping Washington, said she visited him daily when he was in the Death House in 1985. She remembered a couple of comments made by a psychologist who talked to him there. "The psychologist said, 'Aren't you scared?' and he said, 'Oh, no. Marie won't let anything happen to me."

Deans said this made her very uncomfortable. "The psychologist also said Earl was so amenable that if the electric chair failed he'd probably get out of it and try to help fix it."

Washington, who declined to be interviewed by the Culpeper News, was in special-education classes as long as he stayed in school. He reached the ninth grade.

When Washington went into prison, "He could hardly write his name," according to Grayson. For years he had to get someone else to write his letters for him. Then he learned enough in prison to be able to write his own.

Grayson shared with the Culpeper News a letter Washington wrote to him in 1989. It's dated "1:30 a.m. Friday 10/27/1989," and reads:

"Dear James, Just a few lines to let you know that I am thinking of you. I am doing ok myself, and I hope that you are also. I love you so very much and I hope that you feel the same about me. I was very glad to talk to you the other night when I called. Tell everyone I said hello okay. I still love you more than you realize. You mean a hell of a lot to me. If you didn't, I would not have kept in touch with you all this time. Don't that prove how much I love you James. But life is right damn hard in this place to. But it is so many things that I want to do. But I am still in school to. But some school work is so hard to me but I just try as hard as I can to get it right. But let everyone know that I am doing just fine. I just got to get out of this place soon. But when will this end for me. We go outside 3 days a week. I love to play ball. But I just want to hear something good on me case. But being lockup is got me mad with myself for some reason. But I just keep good though about my case. I just want to come home but I just got to keep on hopping. I just have been locked up to long for something that I didnot do at all. Well I am going to close for now. But now I am going to bed becase I am sleep. Hope to hear from you soon.

"Love always and forever Earl Washington."

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