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In accordance with the powers granted to
me as Governor of Virginia under Article V, Section 12 of
the Constitution of Virginia, I, Lawrence Douglas Wilder,
do hereby reach the following conclusions and render the
following conditional pardon:
Earl Washington Jr., was brought to trial
in the Circuit Court of the County of Culpeper for the murder
of Rebecca Lynn Williams with premeditation subsequent to
the commission of a rape. He was tried by a jury of his
peers and found guilty as charged and it fixed his punishment
at death. On March 20, 1984, at a sentencing hearing in
which the probation officer's report was considered, the
Honorable David F. Berry entered a final order imposing
the death sentence. Since that time, the defendant's case
has gone through numerous appeals both within the courts
of the Commonwealth and the United States. No court, before
which an appeal has been presented has granted the complete
relief that Earl Washington, Jr. has sought.
A review of the record of the trial and of
the appeals that were taken demonstrate that Earl Washington,
Jr. received a fair trial and his appeals were well presented
and considered. Recently, newly discovered evidence has
become available as the result of the initiatives of the
Attorney General's Office. It is clear from precedent in
past cases and based upon discussions with the Attorney
General's Office and counsel for Earl Washington, Jr. that
there are no provisions under Virginia law whereby such
newly discovered evidence can now be considered by the courts.
Accordingly, the review of and consideration of such evidence
can be made only by the Office of the Governor, and it is
this Office that is the sole entity that has the authority
and power to decide upon its merits and, if appropriate,
intervene into and prevent the execution of Earl Washington,
Jr.
Earl Washington, Jr., through counsel, has
petitioned my Office with the request that I invoke the
clemency powers granted to me under Article V, Section 12
of the Constitution of Virginia, grant him clemency in the
form of an absolute pardon, and allow him good time for
the time he has served on two consecutive fifteen year sentences
he received for statutory burglary and malicious wounding
after pleading guilty to same in the Circuit Court for the
County of Fauquier on May 1, 1984. The pleas of guilt were
the result of a plea bargain concerning six indictments
which included two counts of malicious wounding, two charges
of robbery, one charge of rape, and one charge of breaking
and entering. The charges involved three d1fferent v1ct1ms.
The newly discovered evidence was the result
of DNA testing of biological samples that had been taken
from the body of the victim in the case for which he received
the death penalty. These samples were tested by the Virginia
Division of Forensic Science. The results were discussed
with Dr. Paul B. Ferrara, Director of the Division. He confirmed
that alleles (DNA characteristics) matching the victim,
her husband, and Earl Washington, Jr. were found during
the testing process. In addition, however, an allele was
discovered which matched none of these persons. That raises
a substantial question because the victim in a dying declaration
stated that she was attacked by a lone black man whom she
did not know. Defense argues that that person could not
have been Earl Washington, Jr. because the unaccounted for
allele does not match him and that proves that the contributor
of that allele had to belong to the attacker. Defense counsel
supports this by pointing to the trial testimony rendered
by a reputable and competent doctor who testified that the
biological materials he sampled had to have been deposited
within between one and twelve hours of the victim's death.
Defense argues that there was no other opportunity for the
unaccounted for allele to have been deposited in that time
period other than by the attacker.
Even with this new evidence, however, questions
continue to remain concerning the independent validity and
strength of other evidence, including the confessions of
Earl Washington, Jr. His defense counsel argue that his
confessions are of no merit because he is mentally retarded
and he was led into the confessions by the police who conducted
the investigations. Nevertheless, a review of the trial
evidence, including the confessions of Earl Washington,
Jr. reveals that he had knowledge of evidence relating to
the crime which it can be argued only the perpetrator would
have known. The United States Court of Appeals for the Fourth
circuit discusses the specifics of this knowledge and confirms
that he "knew so much about this crime that a jury
could afford his
confessions substantial probative weight."
Washington v. Murray, No.92-4008, slip op. at 10 (4th Cir.
Sept. 17, 1993). See also Id. at 10-11 for the Court's review
of that evidence.
I have thoroughly reviewed the evidence in
the case, the petition that has been submitted on behalf
of Earl Washington, Jr., the interviews my Office has had
with the prosecutor, the detective who is most knowledgeable
about the case, Dr. Ferrara, the forensic scientist, other
knowledgeable persons, all of the orders and opinions of
the various courts for both the Commonwealth and the united
States, and the results of the hearing wherein defense counsel
presented its case to this Office. It is also a matter of
common knowledge that I have been subjected to significant
pleas from a number of members of the General Assembly as
well as person~ from across the united states and other
parts of the world to grant the request of Earl Washington,
Jr. While they have been sincere and well meaning in their
expressions of concern on behalf of the petitioner, it is
clear that the large majority do not enjoy a grasp of the
specific facts in the case. Accordingly, while I appreciate
these expressions of opinion, as I have stated on other
occasions, I must be ever mindful that the powers granted
to the Governor by the Constitution cannot be implemented
based upon popular appeal, nor can such a decision be implemented
in a manner that sacrificially abridges the law. To the
contrary, it must emanate from a thorough review of each
case, be based upon the evidence presented, and rest its
authority upon established principles of law. Moreover,
a governor must remain cognizant of the precept that the
powers granted must be carefully husbanded in order to assure
that they not meet with abuse.
In reaching my decision on the issue of clemency
in this case, once again I have recognized the sanctity
normally extended to each branch of government and the inherent
obligation to maintain the dignity accorded to, the separation
of powers.
Taking into consideration all of the foregoing,
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, I am of the opinion that their opinions
as to the appropriate conclusion may have been different.
NOW THEREFORE, in light of the foregoing
I have determined that, while there are those who enjoy
reasoned and conscientious minds who may differ, I am the
one who must reach the ultimate decision; accordingly, based
upon all of the foregoing I do hereby grant Earl Washington,
Jr., the following CONDITIONAL PARDON:
(1) I acknowledge that statutory language
exists to the effect that those persons sentenced to death
are not eligible for parole if their sentence is commuted
to life imprisonment. Notwithstanding this factor, as I
have stated on previous occasions, I do not view such language
as a constraint to the powers granted to me by the Constitution
under Article V, section 12. I have concluded that the powers
granted to me supercede any direct or implied attempt to
restrict such powers through a statutory enactment. Accordingly,
I hereby commute the sentence of death for the capital murder
conviction to life imprisonment with the right of parole.
His parole eligibility shall be determined by the appropriate
authorities. When making that determination they shall consider
both the thirty year sentence he is now serving for unrelated
offenses, as well as, the offense for which he originally
received the death penalty and which I am now commuting.
(2) The capital punishment commutation is
conditioned upon Earl Washington, Jr., maintaining good
conduct and cooperating with Virginia Department of Corrections
officials; accordingly, if at any time during his imprisonment
he shall be guilty of a felony, including the attempt to
escape, this commutation shall be rendered null and void
and revised to the extent that he shall thereafter serve
a life sentence without parole, unless such misconduct on
his part leads to a sentence from a court that dictates
a more stringent sentence; and
( 3) I do hereby further implement my clemency
powers to the c. extent that nothing contained herein is
to be deemed to preclude Earl Washington. Jr. from taking
advantage of the opportunity to present the aforementioned
new evidence and have his case retried from the inception
under new provisions for newly discovered evidence which
I encourage the General Assembly to adopt at its 1994 Session.
I acknowledge the fact that such a retrial could result
in an outcome that is either more or less stringent than
this clemency order, including the potential of an outcome
in which the sentence of death could be ordered. Accordingly,
in the event of such a retrial, the verdict that results
and the sentence that is imposed in the event of a finding
of guilty shall supercede this grant of executive clemency.
(4) Before this conditional clemency grant
will become effective, Earl Washington, Jr., must accept
its terms on or before 5:00 P.M. on January 14, 1994, by
signing this document at the place designated for his signature.
If he rejects this grant, either in whole or in part, the
entire grant is revoked and, thereby, will be null and void
and the sentence of the circuit Court for the County of
Culpeper will be carried out when so ordered by that court.
Given under my hand and the Lesser Seal of
the Commonwealth at Richmond, this 14th day of January in
the year of our Lord one thousand nine hundred and ninety-four
and the 218th year of the Commonwealth of Virginia.
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