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Viewpoint A governors doubt of a mans guilt isnt enough in
Virginia
By COLMAN McCARTHY
Among the 87 prisoners freed from
Americas death rows since 1972, four Virginians stand out: Joseph
Giarratano, Earl Washington Jr., Herbert Bassette and Joseph Payne. Beginning
with Giarratano in 1991, each won release because a Virginia governor examined
the evidence for innocence and ruled that reasonable doubts about guilt were
compelling.
When the four men left death row, they didnt go far. They
were shackled and dispatched to other state prisons where they are caged today.
What holds them is Rule 1.1 of the Supreme Court of Virginia -- the 21-day
rule. Airtight, it decrees that if a capitally convicted prisoner has
post-conviction evidence of innocence, it must be brought to court within 21
days of the sentencing.
After that, dont bother. Proof could exist that the accused
was in Antarctica playing with penguins on the day of the crime in Virginia.
After 21 days, it wouldnt matter. Nor would old evidence discredited by
new DNA testing or other improved forensic methods.
For Giarratano, Washington, Bassette and Payne, Rule 1.1 means
that they will likely die in prison -- effectively a death sentence outside
death row.
Driven either by conscience or edginess about what this rule says
about Virginia justice, some state politicians have been stirring themselves to
corrective action. In late February, the House of Delegates voted 73-25 on a
bill that would lethally inject the 21-day rule. The 41 Democrats and 32
Republicans supported the change that would have meant that, finally, Virginia
would no longer be the only one of the nations 38 death penalty states
denying appellate relief for possibly innocent people.
The effort came to nothing. In mid-March, the state Senate refused
to consider the bill, which would have given three years, not three weeks, to
offer new evidence for innocence.
While Virginia stagnates, shifts are seen elsewhere.
Preacher-politician Pat Robertson is the latest pro-death penalty conservative
to call for a moratorium. He followed Illinois Gov. George Ryan, who could no
longer ignore the fact that 13 men have been freed from his states death
row since 1977, one more than the number of men executed. Six other states have
called for a time out, now that the mathematics are in: With 87 men freed and
some 630 gassed, injected, electrocuted, hung or shot, thats one out of
eight prisoners who escaped death row.
It could be asked about the cases of men who were freed: Why
arent sentencing judges and prosecutors arrested for attempted homicide?
With slim chance of that happening, another question is within range of
reasonableness: Why are so few details about incompetent representation by
lawyers and erratic judicial decisions from the bench disclosed to the public
and to the people victimized by the wrongful convictions?
The case I am most familiar with is Joseph Giarratanos.
Since 1988, I have been in regular contact with him. I visited him four times
while he was on death row, including an interview the day before his scheduled
execution in February 1991. Since then, I have made a half dozen more visits.
On each, I brought students from my classes at Georgetown Law School, the
University of Maryland and Bethesda Chevy Chase High School.
Giarratano, a one-time drug addict who turned his life around on
death row by reading law, theology and philosophy, was allowed by his
progressive warden to give seminars on criminal justice to my students. On
legal issues, he had credibility. He had written articles for the Yale Law
Review and the Los Angeles Times. His legal research led to several
successful suits on behalf of fellow prisoners. He was the only person on death
row ever to write a brief argued before the Supreme Court -- on behalf of Earl
Washington Jr., his illiterate cellblock friend.
Giarratano, now 43, was convicted of killing two Norfolk, Va.,
women in Feb. 1979 in a rooming house apartment he shared with them. The
original case presented against him during a four-hour trial was so flimsy --
five coerced dissimilar confessions, conflicting autopsy reports, bloody shoe
prints found in the apartment not matching Giarratanos boots, evidence
that the stabbing and strangulation of the women were done by a right-handed
person, while Giarratano is left-handed -- that conservative pro-death penalty
newspapers throughout Virginia began calling for a new trial. They were joined
by Amnesty International and other groups that examined the case in detail. By
February 1991, then-Gov. L. Douglas Wilder freed Giarratano from death row.
The day before this life-sparing decision, I asked Giarratano the
obvious question: If its so certain that you have a claim for innocence,
why havent the courts, after 10 years of considering well-crafted
appeals, agreed?
He answered: It isnt that the courts werent
convinced one way or the other, but that theyre bound by the procedural
rules they created. Its a court rule that if the defense attorney
didnt make proper objections during the trial, then the error cannot be
raised on appeal. The second procedural rule states that any new evidence must
be raised within 21 days of the trials conclusion; otherwise the review
is forever barred. Federal courts must defer to state procedural rules. Because
of all this, no court has ever ruled on the merits of my case.
Joe Giarratano currently lives in the Red Onion State Prison in
Pound, Va., caged 23 hours a day in an 11-by-8-foot cell in the isolation wing.
Red Onion, in rural Southwest Virginia, is a supermax facility
where inhumane treatment of prisoners is routine. The Washington Post
reported in April 1999 in Red Onions first nine months, shots
have been fired [at inmates] 63 times. The paper quoted Ronald Angelone,
the states director of prisons and a champion of supermax pens, on his
views about Red Onion: Its not a nice place. And I designed it not
to be a nice place.
The prison has no law library, no meaningful job-training program
and no significant education classes. Mail is severely restricted. A directive
states: Copies or sections of publications, brochures, newsletters,
materials printed off the Internet or other printed materials will no longer be
allowed or enclosed in incoming correspondence.
Giarratano is allowed to exercise in a concrete area the size of a
dog pen. In a recent letter, he wrote: I am strip searched each time I
leave the cell for recreation.
I am first handcuffed behind the back,
legs shackled, placed on a dog leash, escorted by two guards -- one holding the
leash, the other pressing a laser gun to my ribs -- and all under the close
watch of a guard pointing a shotgun at me from the gun port.
That should be considered soft treatment. Earlier this year,
Giarratano was confined to his cell 24 hours a day, except for three showers a
week. His offense? He retained a mustache, a major violation of the department
of corrections hair-grooming regulations.
In a letter May 7, Giarratano described his feelings about life in
a prison designed for the worst of the worst: Generally, I am
holding up well under the rigors of supermax segregated confinement, probably
better than many. Nevertheless, I know that anyone subjected to this type of
ordeal -- especially for long durations -- does not escape unscathed. I know,
in my own experiences here and from past experiences with long-term
isolated-segregated lockdowns, i.e., my years on the row, the tremendous amount
of mental concentration it requires just to keep ones head above water.
There are times, even now, when Im not so sure of my own grip on reality.
The social isolation, greatly restricted environmental and intellectual
stimulation, forced idleness, constantly confined to small space day after day,
being subjected to a constant denial of ones innate humanity and dignity
-- constantly being treated like an object and not as a human being -- the
total lack of personal privacy, the constant light bulb (24 hours a day) and
living under the constant threat of officially sanctioned violence will, I
suppose, take its toll on anyone. More and more I find myself having to turn
inward just to maintain my balance in this madness; and even then, I must
remain on guard for hallucinations, feelings of suffocation, paranoia, fear and
even rage.
Giarratano has told me that one of the forces that keeps him from
despair or suicide is the correspondence he has with supporters who have not
forgotten him. In the spring of 1999, many of them were among the more than 200
friends who gathered at a dinner in Charlottesville, Va., to honor
Giarratanos heroic resistance against Virginias courts and the
correction departments efforts to crush his spirit. The dinner was May l,
the same day that the mayor of Charlottesville, Va., declared Joseph
Giarratano Day. The proclamation was meant to honor a man many Virginians
-- on both sides of the death penalty issue -- believe is innocent.
Among those speaking at the dinner was retired Federal Judge
Robert Mehrige, who had followed the Giarratano case closely while sitting on
the Fourth U.S. Circuit Court of Appeals. He condemned the 21-day rule and
aligned himself with all those in the audience who continue to work to win
Giarratanos freedom.
I sent the printed program of the dinner to Giarratano. It came
back in return mail, undelivered because of the no printed material rule.
Later, Giarratano wrote to say that the dinner for him, along with the
mayors proclamation, was a humbling experience for me. Im
told the honor came down to a choice between me and a U.S. Supreme Court
justice! That had to be Rehnquist or Scalia -- only way they could have decided
on me!
Colman McCarthy directs the Center for Teaching Peace in
Washington. His e-mail address is colman@clark.net
National Catholic Reporter, September 15,
2000
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