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| Earl Washington after his exoneration and
release. (Photo courtesy Barry Weinstein) |
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There are certain rights that most Americans consider fundamental,
even sacred - none more so than the rights to life and liberty.
But most of us accept that when people commit certain crimes the
government can take away these rights. Most Americans grant the
government the right to execute those guilty of the worst crimes.
Some 3,700 people await executions across 38 states. Behind that
support, however, is the belief that the system works and that
it is basically fair. However, over the last few years, the hard,
unbendable laws of science are challenging that conviction, shaking
that faith.
Consider the case of Earl Washington, which Peter Neufeld of
the Innocence Project at the Cardozo School of Law calls "one
of the most extraordinary cases in the country because everything
that could go wrong, did go wrong."
"His lawyer did a bad job," says Neufeld. "There
was police and prosecutorial misconduct, and there was a coerced
confession from a man who was retarded."
With partner Barry Sheck, Neufeld has used DNA analysis to help
free dozens of people convicted of crimes they didn't commit.
Among them was Earl Washington, a mildly retarded, black farm
hand from rural Virginia who was convicted of rape and murder
in 1982, and then sentenced to death. He spent 18 years in jail
and came within nine days of being executed. If not for DNA evidence,
Neufeld says Virginia would have killed an innocent man. "Every
time an innocent person comes close to dying and is saved through
DNA testing," says Neufeld, "I can assure you there
was a disaster in the criminal justice system.
Earl Washington has been out of jail for about a year and a half.
He has settled in Virginia Beach and plans to be married soon.
Washington is 42 years old. Tall, with a wide smile, he's a man
of few words, but he does recall his brush with the executioner,
when he came within nine days of being strapped into Virginia's
dark oak electric chair. Washington says he could hear the guards
preparing it for him. "You heard a humming," says Washington,
"because they tested the chair every day." Washington
says he wasn't scared, just angry at first. If you ask him how
he survived incarceration for 18 years, he quickly corrects you
by saying, "Seventeen years, nine months. Took it one day
at a time. That's the way I did it."
Washington won't say much about the case that sent him to death
row, except maybe a terse "no comment." Perhaps that's
understandable given what happened the first time he was questioned
about the murder of Rebecca Lynn Williams, a white 19-year-old
mother of three from Culpeper, Virginia. Washington's trouble
started in the spring of 1983 with a night of drinking with friends
and a fight with this brother over a girl. Washington, angry and
distraught, ran next door to the house of his neighbor to steal
a gun to confront his brother. The neighbor, an elderly woman,
tried to stop him, and Washington hit her with a chair, grabbed
the gun and ran back to his house to continue the struggle with
his brother, whom he eventually shot in the foot. Shortly after,
he was arrested and quickly confessed to assaulting his neighbor
and his brother. Then the police began to question Washington
about a series of unsolved crimes, including three rape cases.
Washington confessed to all of them. Then they asked him about
the rape and murder of Rebecca Williams. "Earl started crying
and confessed to that as well," says Neufeld. "The first
three rapes he confessed to were ridiculous [because] the victims
came in and said it wasn't Earl." So police dropped the charges.
"But on the murder case," says Neufeld, "there
was no victim alive to say that Earl didn't do it." So based
on his confession, police charged Washington with capital murder.
When Washington's case came to trial, it took a mostly white
jury 50 minutes to convict him. Ninety minutes later they sentenced
him to death. Then the Virginia Supreme Court denied his appeal
and set his execution date. Washington could have continued his
appeals, but Neufeld said he faced a daunting hurdle. "It
was the law in Virginia that if you wanted to file a habeas corpus
petition and you were poor, you had to represent yourself,"
recalls Neufeld. "Think about a retarded man, who didn't
finish elementary school, who had to read a transcript of his
trial, research the law, and then write a brief and then make
an intelligent argument before a presiding judge. It's ludicrous."
With the clock ticking toward his date with the executioner,
a fellow death-row inmate and lawyers from the NAACP filed a civil
rights suit arguing that death row inmates seeking appeals were
entitled to free legal council. Nine days before Washington was
scheduled to die, a judge stopped the execution. After that, Robert
Hall, a Virginia defense attorney, took the case. Hall believed
that police took advantage of a retarded man to coerce the confession.
"Earl was an IQ 69," says Hall, "an African American
living in a white community who learned that to get along, you
go along." So Washington did his best to provide police with
the answers they were looking for. For most of the interrogation,
says Hall, Washington parroted back the information that was fed
to him by police. But when Washington was left on his own, he
kept giving investigators the wrong answers. For example, when
police asked Washington if the victim was white or black, he said,
"black." In fact the victim was white. When they asked
him if she was tall or short, he said "kind of short."
In fact the victim was tall. Whey they asked him how many times
did he stab her, he said "once or twice." In fact, Williams
died of multiple stab wounds. "So left on his own,"
says Hall, "Earl was so far off the mark it was laughable."
Hall then examined the forensic reports. This was before modern
DNA testing, but technicians were able to compare genetic markers
from the crime scene with those from Earl Washington. Hall read
the report in disbelief. "The markers weren't Earl's,"
recalls Hall. "I went, 'My God. This was a rape-murder and
Washington wasn't the rapist.'" It was a startling discovery
- one that had been missed years earlier by Washington's original
lawyer trying his first capital case. But Hall's discovery didn't
sway the courts, and after a procession of legal defeats, Washington
was again facing death, notwithstanding the lab report. "The
presumption of innocence was overcome by the conviction,"
says Hall, "and in the words of former Virginia Attorney
General Mary Sue Terry, 'after conviction, innocence is irrelevant.'
So it's not just that you've lost your presumption of innocence,
it's that innocence doesn't matter any more."
As the years went by, Earl Washington's hopes for exoneration
shifted to the state crime lab in Richmond and to DNA analysis.
In the years since Washington's arrest, DNA testing technology
has made a dramatic leap forward, "easily the largest leap
in the criminal justice system in a hundred years," according
to Doctor Paul Ferrara, Director of the Virginia Division of Forensic
Science. The lab is home to the nation's first and largest DNA
data bank. It's a world of airtight cleanliness, precision and
security, where scientists work with tiny samples of blood, semen,
skin, even sweat from a headband, or saliva from a half-eaten
sandwich. They dissolve the samples in solution and then, with
a small, powerful centrifuge, extract the DNA, copy it and build
a perfect DNA profile of the donor. "With today's technology,"
says Ferrara, "we can identify any individual uniquely among
the whole world population. So that's what makes it so powerful."
In 1993, 10 years after his arrest, DNA tests on a vaginal swab
taken from Rebecca Williams showed no link to Washington. His
attorneys petitioned then-Governor Douglas Wilder for clemency.
Wilder was still troubled by the confession, so on his last day
in office he offered a deal to Washington's attorneys: either
accept life in prison, or take your chances with incoming Governor
George Allen, a law-and-order Republican, who could well sign
your death warrant. Hall relayed the offer to his client. "Earl
had a question," says Hall. "If I take their offer I
live for sure but maybe here [in prison]. And if I don't take
their offer maybe I die. Is that right? Well, I'll live for sure."
So Washington's legal team accepted the offer.
By this time Washington had been in jail for close to 11 years.
He'd remain there for another seven until another round of tests
with the latest DNA technology cleared him. Virginia Governor
Jim Gilmore finally granted Washington a full pardon. That final
DNA test freed Earl Washington, but Paul Ferrara of the state
crime lab said it also revealed the DNA profile of another black
man in police custody for another crime who was free at the time
of the Culpeper murder. "Because of those results,"
says Ferrara, "the State Police took over the investigation,
and it's still an ongoing investigation." In other words,
the DNA test not only pointed to Washington's innocence, but also
to another man's guilt. Peter Neufeld says this should be the
kind of evidence that prosecutors would jump on to seek an indictment,
"but not here," he says, "Because to do so would
require a public admission that Earl Washington was completely
innocent, and that an innocent man was almost put to death."
Culpeper, Virginia is a quiet town, where the gray, stone monument
to the Confederate dead stands peacefully beside the brick and
white columned courthouse. It seems a world away from modern forensic
science and from the brutal murder of a young woman almost 20
years ago. But Culpeper's county prosecutor, Gary Close, still
maintains Washington is guilty, and that his advocates are misguided.
"In my opinion the jury made the right decision," says
Close. "I don't think the DNA evidence which they hang their
hat on is the magic bullet that [should have] exonerated Earl
Washington."
Close says the DNA is just one piece of evidence, and in his
opinion, it doesn't explain away the significance of Washington's
confession. "The fact that there is no DNA [at the crime
scene] doesn't mean [Washington] wasn't there. And it very well
may be that there was more than one person involved and one of
them left DNA and one didn't."
The trouble with that theory is that just before she died, Rebecca
Williams told police that her attacker was a lone, black man.
Gerald Zerkin, a member of Washington's defense team, says prosecutors
are downplaying the significance of the DNA evidence because it
doesn't help their case. "If DNA analysis had shown that
Washington was guilty," chides Zerkin, "Gary Close would
be jumping up and down saying, 'see - we told you. DNA is the
silver bullet.'"
This debate has moved beyond the guilt or innocence of one man,
and concerns broader questions about the fairness of capital punishment.
Advocates of Earl Washington say his case shows what's wrong with
the death penalty - and indeed the entire criminal justice system.
On the other side are people like C.B. Jones, the retired Culpeper
police chief who oversaw Washington's arrest almost 20 years ago,
and who inevitably link the case for Washington's guilt to their
support of the death penalty. These days Jones lives quietly in
the Virginia countryside not far from Culpeper. Cancer has slowed
him down, but when he talks about the Earl Washington case his
blue eyes still blaze with passion. Jones still maintains that
Washington is guilty and that "justice was not served."
Of Washington's confession, Chief Jones says his officers "didn't
lead that boy." Lost in the politics of the case, he says,
is concern for the families. "What about them," asks
Jones? "I know that mistakes get made, and hopefully we don't
execute people who aren't guilty," he continues. "But
no system's perfect."
But when a system's imperfection almost takes an innocent life,
what does that say about the system? That question prompts a robust
debate. Steve Rosenthal, Virginia's acting Attorney General who
ordered the first round of DNA tests in the Washington case, says
it would have been relatively straight forward if this case had
come to him today instead of in 1993 when modern DNA analysis
was still being developed. But Rosenthal argues that the system
did eventually permit the test that freed Washington, "so
in the end," he says, "it worked." Gerald Zerkin,
who helped defend Washington, dismisses that claim as "silly,"
and says Washington is alive today because of luck. He was lucky,
says Zerkin, because there was DNA evidence to test - unlike in
the large majority of cases in which there is no DNA evidence.
"The system failed," Zerkin contends, "because
someone was convicted and sentenced to death for a crime he did
not commit." Furthermore, says Zerkin, it suggests that many
innocent people will never be exonerated because they are not
"lucky" enough have DNA evidence to test.
Earl Washington spent almost half his life in jail. When he was
sent away to death row he had the love and support of his parents.
When he walked out, they were both dead. He is reluctant to talk
about how he feels about the death penalty. He would rather focus
on his new life. "Things are going great," he says.
"I do what I want to do now. Go to bed when I want to. That's
it." But when asked if he misses anything at all, he concedes,
"yeah. My parents." And one more thing, he says. "Only
thing I really want is someone to apologize for what happened."
Washington looks away into the hazy afternoon air and adds with
a note of weariness, "looks like they won't."
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