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earl washington, jr. Excerpts from the clemency offer faxed by then Virginia Governor L. Douglas Wilder to defense attorneys for Earl Washington Jr. on January 14, 1994.
Commonwealth of Virginia

Executive Department

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:...

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 represented 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....

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, 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 the crime that a jury could afford his confessions substantial probative weight..."

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 persons 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 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...

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 conclusions 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, abased upon all of the foregoing I do hereby grant Earl Washington, Jr., the following CONDITIONAL PARDON:...

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...

(3) I do hereby further implement my clemency powers to the 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 this 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 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.

Lawrence Douglas Wilder
Governor of Virginia

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