Interview Danny Shipley

How unusual was this case?

Extremely unusual. It's the most unusual case that I've ever been involved in. It's the most unusual case that I've heard occurring in the state of Virginia. ... I predicted years ago that this would be some type of movie based on the facts of the case and how many ups and downs and twists and turns there were in it. I've never seen anything like it, and I really hope never to see anything like it again.

How did you become Williams' lawyer, and how did you see the case?

In Virginia, you have to take certain training to become a capital-qualified attorney to represent people in capital murder cases, and I've had the training and was on the list of capital-approved attorneys for about 10 years prior to this case coming up. And I'd handled quite a few capital cases, a lot of which pled, but a lot of which did actually go to trial. I worked on about three cases with [attorney] Mr. [James] Broccoletti on capital cases, pretty famous capital cases in the area.

What happens ... is that when a capital case comes up, the judge in General District Court is alerted to that fact. Somebody has been arrested overnight, it's a capital case, and so the judge needs to find a capital-qualified attorney to assign to the case immediately. A lot of times, if there's somebody in the courthouse, he'll appoint that person. If not, they'll just go down a list and call somebody and say, "Will you take this case?"

I just happened to be there that day because I'm in that court building probably four days a week. Judge [Ray W.] Dezern, who I've known for a long time, saw me and asked me if I would take the case. I believe that I had actually heard something on the radio that morning about the case, so I knew what it was about and what the charges were. And I was appointed that morning when he was advised of his right to counsel, and I believe that I actually spoke to him the same day.

I know I met his parents and his wife that morning and told them all that I knew about the case at that time -- what he was charged with, and I had been told by someone involved with the commonwealth that he had given a confession. ... I think Ms. [Rhea] Williams thought I was saying that he was guilty, and what I was actually saying [was] he's got a problem because he's confessed. That's what I knew.

You're asked to represent Williams. What do you find?

... We didn't speak about the facts of the case when I first met him. I did not ask him if he was guilty or whether he had done it; it's not something that I would ask someone. As a matter of fact, it's something that a criminal defense attorney rarely asks their clients: "Did you do it?"

Basically, what you want to look at is not whether they claim they did it, but what's the evidence. Of course, at that time, I knew almost nothing about the evidence. ... I knew that there was an allegation of a rape-murder and that he had given a confession in writing, and that's all I knew.

What happens when somebody comes to you in that position -- capital murder and a confession? What do you do?

Well, what you do basically is file what's called a discovery motion, requiring that the court will require the commonwealth to provide me with certain types of evidence. Discovery in Virginia is very limited. They don't have to show you everything they have. They have to give you his statements. They have to give you any physical evidence they have at that time, which I believe they had a preliminary autopsy report which I would have had probably within a few days; [and they have to give you] a copy of his confession. ...

So you realized this was a big challenge?

Oh, yes. I've represented people before who have confessed to capital murder, none of which actually went to trial. They were usually worked out for something less than capital murder, maybe a term of years or something of that nature. ... I have not personally handled many capital murders where there was a confession, particularly a written confession. So it was a little unusual.

And it's not good.

No, it's not good. Anytime you've got a police officer or a witness or jailhouse snitch or whoever saying that guy confessed, that complicates the case. That's a problem that you really would prefer not to have. ...

Did he claim that he was not guilty?

He did claim that, and I cannot tell you the exact time frame in which he claimed it. I'm pretty sure...

He did claim he was not guilty?

Yes. Yes.

Explain.

Yes, he did tell me that he was not guilty, yes.

Explain

He told me that he was not guilty of the offense at some point. I don't remember, first meeting, second meeting, third meeting, but he did tell me he was not guilty.

You didn't believe him?

The confession gave me problems, OK, and as more confessions [came] in later on implicating him, it gave me more problems concerning whether he was guilty or innocent. But the determination by me of whether he's guilty or innocent is really of no importance at all.

You thought he was in denial? ...

Well, I think that ... he may have been in denial, particularly when the others, Mr. [Eric] Wilson, Mr. [Derek] Tice, Mr. [Joseph] Dick, kept confessing, implicating him. And it was like waves coming into the beach. Every few months, someone else would come in and confess and say Danial was there, involved, and it was looking very, very bad for Danial because of his confession and the confession of other co-defendants.

And that's something you really have to worry about: ... If you've got co-defendants, somebody is looking to cut a deal, which is certainly what happened here. And so when you've got other co-defendants implicating him, then you're saying, I not only have to deal with his confession now; I have to deal with the co-defendant or co-defendants who are going to say, "Yes, we were there; we saw him do it." That's more evidence that you have to deal with at a potential trial.

Isn't it true that a rigorous investigation would have found Ballard?

I don't see how you can say that he would have been found. We were provided physical evidence, so we knew there were some problems with the physical evidence. The so-called pristine crime scene is a problem.

For the prosecution.

For the prosecution, yes, it is a problem. There was some problems with the way entry was gained into the apartment, where one of the defendants said they used a ball-peen hammer or something, and yet there was no damage to the door. But in Virginia, problems with the physical evidence are trumped usually by a confession, and if you look at the jury comments in the Tice case, they said we know there was problems with the physical evidence, but the confession was all that really mattered. The confession washed everything away. Keep in mind, I've been doing this for 35 years in Virginia, and I know how Virginia jurors are. Virginia jurors are very unskeptical of police testimony.

They believe it?

They believe it. No one in Virginia believes that you confess to a murder you didn't commit. No one believes it. And that's true of judges, true of lawyers. No one believes it, and they'll tell you again and again: "I don't believe someone confesses to a murder they didn't commit." And that's what I'm looking at. And to be quite frank with you, when you approach a case, how we're going to handle this case, are we going to try to make a deal, or are we going to go to court and try the case, death changes everything. Death: ... All your decisions that you make are guided by the fact that if you make the wrong decision, you make the wrong call, your client is dead. ...

In Virginia.

In Virginia, your client is dead. We're very, very good at killing people, executing people [in Virginia]. We're in the top two or three every year. ...

So in my opinion, which was later ratified by the jury foreman in the Tice case, all that mattered to them was the confession. They said we know there were problems with the physical evidence, but it was all washed away ... [because of] the confession.

They might have killed him?

I think there was an excellent chance. You know, Mr. [Greg] McCormack represented Mr. Wilson. Mr. Wilson was the first person to go to trial. And from what I understand, although the death penalty was taken off the table at the last minute, while the death penalty was on the table, Mr. McCormack advised his client that, "I believe there's a good chance you're going to get convicted, and if you get convicted, you're going to get the death penalty." So that's how Mr. McCormack looked at the case, because he was dealing with essentially the same thing that I was dealing with. He was dealing with a confession; he was dealing with Mr. Dick testifying against him and possibly Mr. Tice.

And Mr. Dick -- every attorney who cross-examined Mr. Dick agreed he was a lousy witness. He made a lousy impression in court. What he did a lot of times did not make sense. He was a sneaky-looking guy. I think somebody referred to him as just the worst witness they'd ever seen. But jurors still believed him. The jury in the Wilson case, although Wilson was acquitted of murder, they still convicted him of rape, which meant they had to accept Dick's testimony that Wilson was there and participated in the rape. Twelve out of 12 people believed Mr. Dick and believed the confession.

In the Tice case, that case was tried twice. He had 24 jurors. All 24 believed that Tice was guilty based on the testimony of Mr. Dick and the confession of Mr. Tice. So you've got 36 jurors there, and every one is convinced beyond a reasonable doubt that they did these crimes.

Weren't you surprised that your client did not give other names?

Yes, because basically, the way things were going, ... most people under his circumstances would have looked for any way to cut a deal. He never once did. ... He said, "I didn't do it," and in spite of me saying to him, "You know, people are cutting deals here," he says, "How can I say that somebody else did it when I wasn't there?"

He never offered to testify against any of these people. I think he was the most honorable defendant in this whole conglomeration. ... He's the only person that didn't roll over and essentially lie against his co-defendant to save his own skin. He never once even broached that opportunity with me: "How about if I say I was there and Dick did it? How about if I say I was there and Wilson did it?" [He] never said that. ...

So were you frustrated that these other defendants came up and you couldn't take advantage of it? …

When [Joe] Dick came out, I went to talk to him, and I said: "I've got news for you. Mr. Dick, a guy named Dick has been arrested. He has implicated you in the killing. ... Why didn't you tell me about this?" And he said, "Mr. Shipley, I told you I wasn't there; I didn't do it." And then you get two more that come in, and they all say he was there. ... He said, "Mr. Shipley, I didn't do it." ...

Before this case, what did you feel about false confessions?

I've known for a long time that there are false confessions. I had a client that falsely confessed to capital murder years ago. Found out later after he had confessed to capital murder, he was actually in jail that night. Now, if that boy was not in jail that night, he'd be dead. They would have tried him based on his confession; he would have been executed 15, 20 years ago. In Virginia, there's really only two viable alibis, neither of which Danial had: I'm in the intensive care unit that night, or I'm in jail.

His [Williams'] statement to me was that he was with his sick wife that night. ... If your alibi is your wife, your mother, your father, your brother, your sister or your baby's mama, it's worthless. It's not worth anything, because everybody believes that those people would lie on your behalf.

[Can you talk about the spree of rapes after Bosko was raped and killed?]

… I [now] know that Mr. Ballard had previously apparently sexually assaulted a young woman in the neighborhood.

[Ten days later also.]

Yes, and I knew about that after they arrested Ballard, obviously. ...

Nobody connected the nearby beating and rape?

That's correct. I don't think anybody put the pieces together. I think the prosecution -- that includes the police and the prosecutor's office -- had a theory of the case, and every time a new person surfaced, they had a different version of what happened. And instead of sitting down, saying, "There's a problem here with this case; this case is nothing like we've seen before," it's going in 12 different directions. It goes this way, then it goes this way, and the only thing they were concerned about was preserving the people they had already charged, preserving those convictions.

They would bend their theory of the case to conform to the new confession, the new physical evidence. Anytime somebody confessed, there were discrepancies, so they would come and say, "Well, our theory here was wrong, but we've tweaked it a little bit, so now we're going this way with it." They were simply bending their case to fit what evidence, whatever evidence came before them.

Why?

Why? Well, that's a good question. I don't know why. I think there is a tendency on some police and some prosecutors ... to believe that they always know the right story; they're omniscient. ... You see prosecutors come in, and they're so damn sure of the guilt of the defendant. You know, it's a wonderful way to go through life. You never have any doubts. And that's the way a lot of prosecutors and a lot of police officers are. They never have any doubts. They decide you're guilty, and we're sticking with that because we know it's true. And then if something contradicts it, they just kind of try to work it in. ...

I hate to ascribe bad motives on their part, but I think some of them just don't like to lose. ... So I think they think they're doing right, they're on the side of truth and justice and the American way, but I think they get lost. I think they lose the big picture. And I think that's exactly what happened here, for this thing to go on this long with all these people involved and all this different evidence, for them not to sit down and say: "Look, we've got a mess here. We've got to straighten this out." Nobody ever did that. ...

What were your choices?

My choice is to take a deal that he will not get the death penalty or go to trial. And I did not particularly want to go to trial with a confession and two people lined up to testify against him. And like I say, I would have found myself in the pretty much the same position that Mr. Tice found himself, except I didn't have the benefit of Mr. [Omar] Ballard. Mr. Ballard to me was reasonable doubt personified. When I found out about Mr. Ballard, ... that's when I went to see Danial -- and this was after he had pled guilty but before he was sentenced, so the case was still within the breast of the court. The court had the power to set aside that guilty plea and allow him to have a new trial.

I went to see Mr. Williams with [co-counselor]Mr. [Robert] Frank, [Williams' attorney,] and we took a copy of the letter that Ballard had written to his girlfriend confessing, and I reversed course at that time. I said, "Danial, based on this, you've got a trial case; you've got a chance of winning this case," which before I told him he didn't. So I was advocating to him to ask for a new trial, and I said, "Do you want to do this?" And he said yes. There was no hesitation on his part, and I supported that decision because I thought Ballard would do it for him.

I was wrong. I was right the first time when I told him to take the deal. I was wrong the second time when I told him, because Ballard didn't mean anything to that Tice jury.

But you didn't even have a chance to find out?

Didn't have a chance. ... We filed a motion in front of Judge [Charles] Poston [in April 1999], asking for a leave to set aside the guilty verdict and to order a trial based on the fact of ... discovered evidence. ... When Mr. Williams pled, we knew nothing about Ballard. We did not know he existed. I don't think the letter had even been written yet, as far as I know. ...

We went in front of Judge Poston. We set out the facts that we did not have this evidence at trial, and Judge Poston denied the motion. Why he did it, I don't know. ... He's not required to explain the reason for his decision, and I do not know today -- even though I've known Judge Poston for 40 years, and I think he's an excellent judge -- but why he made that decision on that day I don't know. ...

What did you think when the DNA came back negative?

There was no DNA match of Mr. Williams [from the] the DNA recovered at the scene from Michelle's body. That is not unusual that there would be no DNA recovered. Just because there's no DNA doesn't mean you didn't do it. It just means that there was no DNA recovered, for whatever reason. Maybe he was not a secretor; maybe there was no ejaculation. There were other ways to collect DNA, but that's not unusual to find no DNA present.

It's unusual, in my opinion, to have seven guys supposedly rape and attack this girl and find none of [their] DNA. I don't know what the percentages are or the law of averages, but that's pretty astronomical for seven guys to involve themselves in a brutal rape-sodomy of this girl and none of their DNAs match. So that's very, very unusual. But I'm not saying it can't happen. My understanding is that the statements of at least a couple of the guys said nobody used a condom, so it would be even more unusual not to have a DNA transfer when people are not using a condom.

When your client was arrested, they thought it was one person.

Until the DNA came back. That's my understanding of when the DNA came back and it didn't match Williams. [Detective Glenn] Ford or the prosecutor -- I don't know which one, or maybe they decided together -- well, there must be somebody else involved because we've got a foreign sample, and it's not Williams'. That's when they started looking around. ... So they looked for the guy that lives across the hall, another, as they call it, squirrelly-looking guy, which is the way they referred to [Dick]. He's living right across, so he must be involved. Then his DNA doesn't come back either, so we've got to look further now. ...

[Crazy.]

Yeah, that's when they're just getting so desperate now to put a square peg in a round hole that it's like waves coming in. And so they finally get, on the eighth try with Mr. Ballard, they get their DNA match.

But they don't want to lose anybody else from their theory?

Correct. Instead of saying, "Look, we had it wrong from the beginning," they don't want to do that. This is a political office. Commonwealth attorney is elected by popular vote. They don't want to come in and say, "We had these guys in jail now for three or four years, and we were wrong the whole time." They're not willing to do that. So they now decide they're going to cook up a theory of this black guy who does not know any of these white guys, but yet they're going to hook up in the parking lot outside her house and go in together and rape and stab and murder this girl.

If it was on TV, you wouldn't believe it. It doesn't make any sense. I mean, how can you go from these seven white guys, sailors, to this black guy sex offender that don't even know each other, hook up and make a conspiracy to go in and rape and murder this girl? It just doesn't make any sense. It's absurd. But 36 jurors bought it, ... 12 in Wilson's case and 24 in Tice's case. They bought it.

Would most Virginians think they were guilty? ...

We weren't trying this case in Washington, D.C., New York City or Los Angeles. In those areas you have a lot of skepticism of police testimony. People don't always believe everything the police are selling. In Virginia, they usually do.

When you go to try a jury trial, there is a series of questions that are asked to the jurors individually to see whether they qualify [for] serving on the jury, and one of the questions that's always asked is would you be more inclined to believe the testimony of a police officer over any other witness simply because he's a police officer. And they always say no. But they lie. (Laughs.) They lie, because they do believe the police officer. Not everybody, but most of them that are not raising their hands. They may not be consciously lying, but they do believe the police officer. The police officer says he had the green light, you say you got the green light, you're going to lose most of the time, because the jury is going to believe the guy in the uniform.

And that's essentially what you had here. That's a factor that goes into the decision whether to try a case. They're going to believe Ford.

You have to also remember that, basically, these guys are professional witnesses. You know, they do it all the time, every day. Your client is not. ... They [jurors] do not believe that you confess to a murder you didn't do. They do not believe that police officers don't always tell the truth. And they do not believe that you are presumed to be innocent. They believe if you're on trial, you've got to be guilty of something.

That's the problem. That's what you're running into. And when I say it's Virginia, it's not just Virginia. It's all over the country. Your percentages are probably a little better in less conservative places than Virginia. ...

Everybody that I've ever talked to about this case in the last 12 [years] at some point in time says, "I don't believe he'd have confessed to a murder if he didn't do it." They always say that. Those are the people on my jury, those are the people on Mr. Wilson's jury, and those are the people that are on Mr. Tice's jury. What am I going to do? I'm trying to save my client's life. My client is at home right now, by the way. If we hadn't have made this decision [for him to plead guilty and not go to trial], he might be dead. There's a good chance he'd be dead. ...

So does the death penalty change the system?

It does. It deforms everything. ...

[Explain.]

The death penalty is different. The death penalty affects every analysis a lawyer has on how to handle the case, OK, because the penalties are so severe. ...

If you're an attorney doing death penalty cases, chances are you have gotten to know these people, even the worst of the worst, as human beings. You worry about these people. I worry about them. Their lives are in my hands. A personal injury lawyer, if he loses, his client loses money. If I lose, my client loses his life. So I'm very conservative. I err on the side of caution. I want to keep my client alive. I would love to get him off, I'd love to get that "not guilty," but when you're facing what I consider to be overwhelming odds against you, ... let's go with the sure thing. ...

I'm trying not to basically just say I always do the right thing. But I'm confident with the advice I gave him initially, because I just feel like he could very well be dead had I told him to go to trial, and I'll always think of that.

Knowing the situation the way you did.

I know I heard a judge who used to try everything, and he said, "There's only so many death penalty cases in a lawyer." If you care about your client, you can only try so many of them. And when you get a death penalty, it just affects how you look at the next case, because you don't want to go through that again. ... And when you get the next one, you've got to think about the one that went really bad. ...

Did you know everybody's case?

No, you don't know everybody's case. The last three guys who were charged prior to Ballard, they didn't give any confessions that I was aware of, so I really wasn't worried a whole lot about those guys at that point. There are a lot of attorneys in Norfolk. For a big city, it's a small town, and you do talk to each other. ... We talk about the case; we talk about which way it's going; we complain about the same prosecutors to each other. ...

Did you ask other attorneys what they thought was going on?

Well, I did, because, like I say, years ago I predicted that they're going to make a movie out of this one one day, it was that bizarre. The whole case as it unfolded was that bizarre. But the fact that I think it's unusual and bizarre didn't erase that confession. ...

I feel like, having seen the whole picture of what happened here, based on my experience of how the prosecutor and the police department handled the case, based on what I know about Ballard, based on my dealings with Mr. Williams, who never said, "I'm going to confess and save my own life," I believe he's not guilty. I don't believe any of them are [guilty]. I don't believe any of them are guilty except Ballard. I believe Ballard did it and I believe he's a mean man, and none of these guys. Look at these guys. These guys are going to start off murdering some girl?

You know, I'm sorry. But these seven white sailors, young guys with no records, and they're going to go stab and rape a woman? No, I'm not buying that. I'm not buying that. But, you know, it was hindsight. Hindsight.

But even today if you had the case, would you have to give the same advice?

I would have to tell him what the situation is -- and keep in mind, this is before Ballard. This is before Ballard when I'm giving him this advice. I'd have to give him the same advice today if the situation were identical. The wonderful thing that McCormack had on Wilson was no death penalty. If there was no death penalty, we'd have all tried the case. Every one of us would have pled not guilty and tried the case, because you've got nothing to lose. Death penalty changes it, as I say. If the death penalty is there, you've got to look at it from a completely different angle than if there is no death penalty.