This petition for a pardon seeks gubernatorial relief for an innocent man
Earl Washington, Jr. is a 33-year-old, black man with mental retardation. His
IQ score of 69 ranks him in the bottom 2% of the population. He functions at
about the level of a ten-year-old child. He is cooperative, indeed gentle,
deferential to those in authority, and eager to please any interlocutor. In a
prosecution that relied exclusively on his own statements to the police -- and
in which the jury was not informed of then-existing forensic evidence, known to
the prosecution, that was facially inconsistent with his guilt -- Mr.
Washington was convicted and sentenced to death for the rape and murder of a
white woman. Unrepresented by counsel, he came within days of execution.
The justice of that conviction has been in doubt for years: the "confession"
upon which it was based was the product of days of police rehearsal and
re-shaping, and it emerged from the same series of interrogations that produced
four other confessions that the Commonwealth has explicitly or implicitly
acknowledged to be false.
Recently, however, Virginia's state crime laboratory has put Mr. Washington's
innocence beyond question. The crime laboratory performed DNA testing on semen
left inside the body of Rebecca Williams and had its work subjected to
verification by the same outside expert whose report was relied upon to pardon
Walter Snyder, Jr. The test results, read in light of the prosecution's own
undisputed testimony describing Rebecca Williams dying declaration, show that
Mr. Washington did not commit the crime.
Yet the judicial system now offers to Mr. Washington only one remaining step,
presentation of a certiorari petition to the United States Supreme Court -- and
that Court will not consider the new evidence. Mr. Washington must seek relief
from the Governor...
IV. The DNA Evidence
While the case was pending on appeal to the Fourth Circuit for the second time,
the parties began discussions for the purpose of arranging for DNA testing of
biological samples that had been taken from the body of the victim. They
eventually agreed that testing would be carried out both by the central
laboratory of the Virginia Division of Forensic Science and by an expert chosen
by Mr. Washington's attorney. (The latter was Dr. David Bing of Boston, whose
results the Governor relied upon earlier this year in pardoning Mr. Snyder on
The Commonwealth reported its results first. . . These were as follows: Mr.
Washington has DNA type 1.2, 4; Rebecca and Clifford Williams both are of DNA
type 4,4; the DNA type of the sperm found in Rebecca Williams body was 1.1,
1.2, 4. Thus, as the crime laboratory reported, the sperm contains a genetic
characteristic (a 1.1 allele) that could not belong to any of these
individuals. Put another way, sperm with a 1.1 allele is inconsistent with
both Mr. Washington and Mr. Williams. Thus, the sperm must have been
contributed by another person. Doubtless, this person was the real perpetrator
of the crime. But in any event, it was not Mr. Washington.
To be sure, as the crime laboratory states, if some hitherto-unmentioned person
(one with a 1.1 allele) had joined with Mr. Washington in raping Rebecca
Williams, then this might provide an explanation for the test results. That
hypothesis, however, is entirely inconsistent with the known facts. Not only
did the Commonwealth's case at trial rest on Mr. Washington's "confession,"
which made no mention of any such third person, but, as recounted above,
Rebecca Williams stated specifically to two people (her husband, and a police
officer) that she had been raped by only one man.
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 Governor has already demonstrated his appreciation of the force of this
consideration. The situation here is precisely that which existed in Mr.
Snyder's case . . There, as reported by the Commonwealth Attorney for
Alexandria, "It is clear that the only source for the relevant [sperm evidence]
would be the assailant in the case, or someone else with whom the victim had
recent sexual contact. All experts agree that a possible explanation of the
results could arise from evidence of a third party donor of the tested
material. However, they also all agree that this is very unlikely given that
the victim stated at trial that she had vnot had sexual contact with anyone
else for ten days prior to the rape." Thus, notwithstanding that the victim in
that case had identified Mr. Snyder and that he "was found to be among possible
contributors [of the sperm] based on blood type and secretion analysis" -- both
inculpatory factors that are absent here -- the Commonwealth Attorney
affirmatively supported the pardon request, and the Governor granted it. In
this case, too, the Governor should grant a pardon, lest an innocent man be
fantasized into the electric chair.
Professor Ruth Luckasson of the
University of New Mexico, a nationally-known expert on mental retardation and
the death penalty whose report is included herewith, has reviewed all five of
these confessions, and describes them as "archetypes of what can happen to
people with mental retardation during intense questioning. "
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