Exonerated and Imprisoned
DNA exonerates him, but Earl Washington has been in prison since 1984.
By David C.N. Swanson
Rebecca Lynn Williams, 19 and white, was raped and murdered in Culpeper in June 1982. Eleven months later, a 23-year-old mentally retarded Bealeton, VA black man, Earl Washington Jr., was arrested for the crime. He was tried for capital murder in Culpeper Circuit Court, found guilty Jan. 20, 1984, and sentenced to death.
More than a decade later, after his numerous appeals were denied, on his last day in office, Gov. Douglas Wilder commuted the death sentence to life in prison. After spending 17 years in prison, Gov. Gilmore is considering a request made in January 2000, by a team of pro bono lawyers working to help Washington.
This team maintains that Washington's innocence has been demonstrated by DNA tests done in 1993 and 1994, evidence that was available to Wilder, but not to the jury at the original trial or to appeals courts.
Washington, originally arrested for assault and breaking and entering in Fauquier County, VA, confessed to other crimes at the same time he confessed to killing Williams. He pleaded guilty to the assault and breaking and entering charges after his Culpeper trial but was cleared of the other crimes to which he confessed after eyewitness testimony and other evidence showed he could not have committed them.
Washington's initial responses to police questioning about the Culpeper crime were incorrect on the matter of the victim's race, height and weight, whether anyone else was in the apartment when the crime was committed, whether he took his clothes off, and how he entered the victim's apartment. He said he kicked the door in, but there was no sign of it. He said he stabbed the victim two or three times. The autopsy found 38 stab wounds. He said he cut himself, but his blood was never found at the scene. With repeated questioning, Washington improved his responses to better fit the facts of the case.
Washington's lawyers say, perhaps with diplomatic generosity, that there is no reason to assume any of the officers questioning their client knew he was retarded and easily led. But they maintain he clearly was led along, assenting to police descriptions of the crime and altering his answers when they did not seem to satisfy police. One expert who ranked Washington's IQ at 69, Dr. Ruth Luckasson, wrote in a report for Washington's clemency petition, "All the circumstances surrounding the 'confession' indicate that its contents came (intentionally or not) from the police and were simply parroted back by Earl."
Key pieces of evidence in this case are semen samples from a blanket and the victim's vagina. Tests of the blanket stain excluded Washington before his trial, but the evidence was not presented in court. DNA tests done in 1994 agree with the early conclusion regarding the blanket.
DNA tests of the vaginal sample done in 1993 also exclude Washington according to a defense expert. The Virginia Attorney General's Office maintains that those tests allow for the possibility that Washington raped Williams, as long as there were two rapists or the victim had consensual sex early that morning with someone other than her husband.
Before she died, Williams told her husband and police there was only one attacker, a black man. A second rapist was never mentioned by the prosecution or in Washington's confession. The theory of consensual sex that morning is problematic as well. Two of Williams' three small children were at the apartment with her that morning while her husband was at work.
At trial, Culpeper Police officer Kenneth H. Buraker (now Chief Deputy for the Sheriff's Office), who responded to the call, testified, "I asked her if she knew who her attacker was. She replied, no. I asked her then if the attacker was black or white and she replied, black. I then asked her if there was more than one and she replied, no." Williams' husband, Clifford, testified, "I asked her, you know, who did it, and the only thing she replied to me was, a black man, and that was about it."
According to documents provided to Washington's lawyers, many never identified fingerprints were found at the crime scene, but none were Washington's. Hairs in the pocket of a shirt allegedly belonging to the murderer were not tested and compared with Washington's. A shoe impression in the floor mat suspected to be the murderer's was not Washington's. A composite sketch based on witnesses' recollections of having seen a black man leaving the building did not match Washington.
At least 11 suspects were considered during the year following the crime. Their names appear on lab reports at the time from the Virginia Bureau of Forensic Science.
Fauquier County deputies picked up Washington, a farm worker with no criminal record, nearly a year after Williams' murder, on May 21, 1983. He was accused of breaking into the home of an elderly woman there, Helen Weeks, and robbing and raping her on the same day as his arrest.
Fauquier deputies DA Zeets and Terry Schrum, with no known reason to suspect that Washington had tried to rape Weeks, asked if he had, and he said yes. Weeks testified in a preliminary hearing on June 23, 1983, that Washington had not tried to rape her, and the charge was dropped.
Washington's lawyers' petition for executive pardon states, "While in police custody, Mr. Washington 'confessed' to five different crimes. In four of the cases, the 'confession' proved to be so inconsistent with the crime it purported to describe that it was simply rejected by the Commonwealth as the unreliable product of Mr. Washington's acquiescence to the officers. In the fifth case -- which resulted in the present capital murder conviction and sentence -- the statement had to be reshaped through four rehearsal sessions before reaching a form the authorities considered usable." Documenting police reports were included with the petition.
After Washington confessed to 4 crimes, the Fauquier Sheriff's Office thought to ask about the crime in Culpeper. On the first go-around Washington denied doing it. He was sent back to his jail cell. Later he reportedly asked to speak to the deputies again, and they asked again about the Williams murder. "Earl, did you kill that girl in Culpeper?"
According to the police notes, he sat silently for five seconds, then said yes and shook his head and started crying. Shortly after this, the police notes say, the questioning stopped, "because of the lack of information concerning the Williams murder." The police did not know Williams had been raped, and Washington did not produce that information.
Eric Freedman, a defense lawyer now working on Washington's case, said he thought the police acted in good faith. "They had no reason to know he was mentally retarded. Earl is a very kind, nice, gentle guy. He says 'Yes, Sir,' to everybody. You can have a long conversation with him in which he seems to understand everything."
Freedman said that according to the notes taken by police, Washington said yes to everything asked, including a description of raping Weeks. "They asked him 'Didn't you do this? Didn't you do that?' Eventually Weeks would say that no such thing ever happened. But they didn't know that yet. So, they started asking him about all the unsolved sexual crimes on their books."
A leading expert on mental retardation, Ruth Luckasson, professor of special education at the University of New Mexico, maintains that saying yes is a normal coping mechanism, a way to please and to appear smarter than you are. "When you are less intelligent, Freedman said, "usually the other guy is right and you're wrong. So you tend to agree with him."
On May 22, 1983, State Police Special Agent C. Reese Wilmore and Culpeper Police Lt. Lee Hart (now Culpeper County sheriff) went to Fauquier to question Washington about the Williams rape and murder. They later reported that Washington confessed to them, identified a shirt from the crime scene as his, and identified the location of Williams' apartment when they drove him through Culpeper.
Motion hearings were held in November 1983 to try Washington for capital murder in Culpeper. Dr. Arthur Centor of Central State Hospital in Petersburg testified for the commonwealth on a motion to suppress confession on Nov. 2, 1983. Centor reported that Washington's IQ was 69 and said, "This is at the very upper limits of mild mental retardation. His essential difficulties were in the verbal area, abilities in vocabulary, in information, and in comprehension."
Trial counsel John Scott Jr., hired by Washington's sister, Alfreda Pendleton, is now a judge. Scott never requested nor retained a mental health expert to assist him in assessing Washington's mental disability and how it played into his waiver of Miranda rights, confession and competency. Barry Weinstein, one of the lawyers currently working on Washington's case said this, "would have made a world of difference."
Washington's current lawyers object to Centor's analysis. Two experts who examined Washington's intelligence for the defense during the appeals process and Luckasson view him as decidedly retarded.
Newspapers and radio stations had been reporting on Washington's alleged confessions to the Culpeper crime and the apparently similar crime in Fauquier. His lawyers asked that the murder trial not be held in Culpeper on the grounds of juror bias against Washington. Nine affidavits from local citizens and a statement from the head of the Culpeper NAACP to the effect that Washington could not get a fair trial in Culpeper were presented in court. Judge David F. Berry denied the request for change of venue. Eleven of the 12 jurors said they had already read about the charges against Washington in Culpeper or Fauquier in the newspapers or heard about them on the radio.
Washington was tried on Jan. 18-20, 1984. Scott was appointed to appeal his conviction. On Nov. 30, 1984, the Virginia Supreme Court affirmed the conviction and sentence. On Jan. 18, 1985, that court denied a rehearing. That same year the U.S. Supreme Court denied review of the case. Washington's execution was set for Sept. 5, 1985. He was transferred to the "Death House" at the Virginia State Penitentiary in Richmond to await execution.
Marie Deans, of The Virginia Coalition on Jails and Prisons, convinced a New York law firm to take Washington's case, working without fee. Freedman was with the firm. Robert Hall came in as local counsel. Two lawyers who joined the effort and are still with it are Gerald Zerkin and Weinstein.
Washington's new lawyers filed a state habeas corpus petition on Aug. 27, 1985 that included much of the original press coverage, along with an expert's affidavit about how this would influence the jury. The petition was denied without an evidentiary hearing on Dec. 23, 1986. The lawyers filed an appeal petition on March 20, 1987. This was denied Feb. 26, 1988. That same year, the U.S. Supreme Court denied review for the second time.
On July 28, 1988, Washington's lawyers filed a federal habeas petition. It was denied on Oct. 25, 1989 without an evidentiary hearing. The lawyers appealed to the U.S. 4th Circuit Court of Appeals and argued the case there June 4, 1990. On Dec. 19, 1991, the case was remanded to the U.S. District Court for an evidentiary hearing, then held April 6, 1992. On July 29, 1992, that court denied the petition.
The evidence in question was the original test excluding Washington because of his blood type as a possible contributor to semen on the blanket. The semen from the vaginal area had not been tested because available technology allegedly could not separate it from blood, skin, etc. The 4th Circuit's decision remanding the case for an evidentiary hearing said that the district court could not determine if the evidence could have created reasonable doubt in the minds of jurors without this hearing. "The evidence consisted essentially of a confession obtained by interrogation almost a year after the crime, from a mildly retarded person upon whom suspicion had not earlier focused during the crime's investigation, and who was not indeed suspected when the critical interrogation which elicited his inculpatory statement was commenced, apparently blindly, while he was in custody in connection with an unrelated crime. The circumstances under which the statements were elicited by police interrogation were such as to raise at least colorable questions of the voluntariness and intelligence with which they were given.
"The only physical evidence corroborating Washington's elicited statements was a shirt traced in testimony to the crime scene which, according to police, was identified by Washington as his when confronted with it during his interrogation a year later. Though facially damning, the circumstances under which this chain of evidence was put together were not without their own special difficulties for a fact finder. In the first place, Washington's admission of ownership was an elicited one in the course of the interrogation whose general difficulties for the fact finder have been earlier noted. Furthermore, the testimony as to the circumstances under which the shirt originally came into the possession of the police presented further special problems. Despite an extensive investigative search of the crime scene soon after the crime's commission, the shirt was not found or, if noticed, was not thought significant by any investigator who did see it. Instead it first came into police possession some six weeks after the crime when the victim's mother-in-law turned it over to investigators.... Negroid hairs were found in the pockets of the shirt.... When, upon Washington's later arrest, defense counsel requested comparison with Washington's facial hair, the request was declined."
The court decision found further evidence of Scott's poor performance, but not such as to (in its opinion) make the trial ... "a fundamentally unfair one. We agree that counsel's failure to make several points critical to the defense might be thought to constitute professionally deficient performance. For example, counsel failed to bring out the factual inconsistencies between Washington's inculpatory statements and the facts as proven, Washington's alibi defense, his sister's favorable testimony respecting ownership of the shirt, and the lack of any other physical evidence, including fingerprints, linking Washington to the crime scene despite an extensive police investigation soon after the crime."
Earl's lawyers' later executive pardon petition states, "At the hearing on remand, all the experts agreed that the semen stains on the bedclothes could not have come from Mr. Washington -- and the Commonwealth's scientist revealed for the first time that she had so advised the prosecutor prior to trial."
When the case returned to the U.S. 4th Circuit Court, it affirmed 2-1 the District Court's denial of the petition, finding the forensic evidence inconclusive because the semen stains on a blanket, although they could not have been made by Washington and could not have been made by the victim's husband alone, could -- according to an interpretation of the early testing -- have been made by a combination of the husband's semen and the victim's skin cells or vaginal fluid.
The 4th Circuit dismissed the district court's assertion that Scott made a strategic decision not to introduce the evidence at trial. "Trial counsel testified that he never offered evidence about the forensic analysis of the stains because he was unaware of their potential significance. In fact, he consulted with no experts about the report, and never realized that Washington's blood type was inconsistent with the seminal fluid on the blanket until Washington's habeas counsel told him well after the trial."
Judge Butzner wrote a dissent to the 4th Circuit's decision denying the habeas petition. He wrote, "It is now settled that the district court erred in holding that Washington's counsel was competent. I think the district court also erred in holding that counsel's incompetence did not prejudice Washington because the results of the semen test were inconclusive.... [W]hen Pendleton was the suspect there was no talk about vaginal fluid masking the semen analysis. Everything was clear. The type could be identified and it was. [James Pendleton was one of the 11 previous suspects.]
"In short, all went well until Washington turned up with blood type O, PGM 2-1.... To mend its own report, the Commonwealth now advances the theory that vaginal fluid masked the stains. But this theory is not based upon scientific evidence." In fact, later DNA tests would prove that the blanket stains were not from Washington, the victim's husband or, for that matter, Pendleton.
The defense team anticipated that Washington would be scheduled to be executed in early 1994. On Dec. 20, 1993, they filed a petition for pardon. Gov. Wilder commuted Washington's death sentence to life imprisonment on Jan 14, 1994, citing his confession as reason for not giving him a complete pardon. The reason for the partial pardon lies in DNA testing done in 1993 and 1994.
Claiming ineffectual counsel, Freedman and his colleagues appealed on the basis of Scott's failure to introduce the lab evidence at trial, as well as his failure to make use of police notes from the questioning of Washington. Scott reportedly then said he did not object to the accusation because "we're talking about a man's life, and he deserves every shot he can take." The Circuit Court agreed Scott's work was incompetent but said this failure was harmless because of Washington's confession -- despite the fact that four similar confessions had been bogus and resulted in dismissed charges or no charges at all.
Asked about the criticism, Scott said, "Whatever remedy that was pursued and was offered by the court system should have been pursued and was pursued vigorously and should have been pursued vigorously." When asked about specific parts of the original trial, Scott said, "It is my understanding that this may be considered again to be an active case. As a member of the judiciary, I can't comment on an open case."
By 1993 DNA testing was available, though the technology has been evolving rapidly since that time. Wilder knew the results of two DNA tests when he commuted the sentence. Jeffrey Ban performed these tests in 1993 and 1994 at the state forensic laboratories in Richmond directed by Dr. Paul Ferrara. The results were sent from the lab to the governor's office. The first test was of semen removed from the victim's vaginal area.
Ban's report is dated Oct. 25, 1993. The test, performed using the latest technology available, namely a DQ alpha test, found three alleles: 1.1, 1.2, and 4. An allele is a genetic marker. We all have two, and the combination is referred to as a genotype.
Washington has no 1.1, but has 1.2 and 4. Williams and her husband also have no 1.1. They both have 4 and 4. The Attorney General's Office responded to this with what has been called the unindicted co-ejaculator theory. Some semen, this theory contends, could have come from Washington as long as there were two attackers or the victim had consensual sex early that morning with someone other than her husband while her young children were asleep.
Dr. James C. Beyer, who did the autopsy, testified that the sperm was less than 12 hours old as of 2:05 p.m. Williams' husband worked the night shift, and Williams was seen walking outside with her kids in the morning. The consensual-sex version of the theory would have to maintain that she brought someone into her apartment between about 2 a.m. and when her kids awakened. Freedman agreed, "There is not a scintilla of evidence for it. It is just a desperate attempt by the state to dream up some way to justify having incarcerated and almost executed the wrong person."
The petition for pardon puts it this way: "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 state agreed to allow the defense to do its own tests at a Massachusetts lab, but the sample they supplied was too small to be tested with technologies available (today such tests can be done on smaller samples).
Instead, the defense asked Dr. Henry Ehrlich, one of the designers of the DQ Alpha test technology, to interpret the state's test results. Ehrlich's interpretation was that the 1.1 and 1.2 alleles were paired, and the 4 was from the victim's skin cells.
The defense maintains that the second test Wilder knew about was not shared with them -- a DNA test of semen on the blanket found at the crime scene, and the results were consistent with the original test on the blanket stain. The new test found a 1.1,1.2 genotype, exactly what Ehrlich found in the vaginal swab test.
Ban's report to Governor's Counsel Walter McFarlane, signed Jan. 14, 1994, states: "Washington is eliminated as the donor of the HLA DQ alpha types obtained from the blue blanket, stains A, B, and C.... It is my opinion that the contributor to the sperm fraction of stain D of the blue blanket is an individual possessing a 1.1,1.2 genotype. Based on that opinion, both Earl Washington Jr. and James Pendleton are eliminated as possible suspects."
Knowing the DNA test on the blanket had been done but not knowing its results, the defense team accepted Wilder's offer of life imprisonment, and in doing so passed up alternatives for appealing the case further through the courts. The decision had to be made in 2 hours. The alternative was for Wilder to do nothing to stop Washington's execution.
"None of us saw the blanket DNA test," Weinstein said. "I was in Richmond at the time.... All five of us were in on the decision.... It was Earl's decision. He was able to understand life and death. Could he understand spending the rest of his life in prison? That's questionable."
The defense continued requesting the test results after Wilder's commutation, documented by phone records and by letters Hall sent to McFarlane, Wilder's counsel. They finally learned of the blanket test results after Ferrara gave them to Frontline. Weinstein said he was very surprised and outraged at not being shown these results earlier, since the defense team "had a very good working relationship with McFarlane."
Wilder and Ferrara did not return repeated phone calls. Jeffrey Ban would not comment on the grounds that the Attorney General's Office is working on the case. "I did the original DNA tests in 1994," Ban said. Asked if other tests have been done more recently, Ban said no, and that he could not talk further. The Attorney General's Office and the Governor's Office declined to comment.
"We think Wilder granted clemency instead of a pardon," Hall said, "because of a fear that Washington might commit some crime while Wilder was running for the U.S. Senate, which he was planning to do." Hall also said Washington would be free were it not for Virginia's 21-day Rule prohibiting introduction of new evidence more than 21 days after a conviction, the strictest limit in any state.
Freedman said Wilder's concern was "probably less a fear that Earl would commit a new crime -- for which there is no history -- than a more general sense that freeing a black convicted of a rape and murder would be bad politics."
Chief Dep. Buraker said reopening Washington's case is up to the attorney general's office. "I'm confident law enforcement did its job and he was given due process."
Lt. Jenkins of the Culpeper Police Department said any decision to reopen a case must be made by the commonwealth's attorney. Commonwealth's Attorney Gary Close said there is very little likelihood the case will be reopened, but that such a decision would have to be made by the police department. "I'm convinced the correct person was convicted," Close said.
Commonwealth Attorney John Bennett prosecuted Washington at trial, and now practices law in Culpeper. He said, "I don't think it is appropriate for me to comment on the specifics of this case since I am now in private law practice and the case is being handled by the state attorney general's office and the commonwealth. I would like to make some general observations.
"I appeared before Gov. Wilder's chief of staff to oppose any executive clemency.... I was told Gov. Wilder took the action out of humanitarian concerns for Washington's limited intelligence, that it had nothing to do with the question of guilt in the case."
(However, Wilder's statement providing a partial pardon does not say its motivation is that humanitarian concern. It states, "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 [sic], I am of the opinion that their opinions as to the appropriate conclusion may have been different.")
Bennett said, "Second, based on everything I've learned in this case, including watching Earl Washington confess, and notwithstanding the questionable conclusions and outright distortions by advocates on behalf of Mr. Washington, Earl Washington committed the crime for which he was properly convicted in Culpeper County." Asked about the questionable conclusions and outright distortions, Bennett had no comment.
Bennett continued, "The jury felt the vileness of his crime, raping and then repeatedly stabbing a young mother in her home while one of her children was at home was itself sufficient to impose the death penalty. I feel certain if the law permitted the jury to hear about Mr. Washington severely beating an elderly lady in her own home in Fauquier County and other criminal involvement, it would have done nothing but reinforce the jury's decision to recommend the death penalty." Bennett again had no comment when asked what was the other criminal involvement.
Transcript copies of this case are on file in the Culpeper courthouse. Bennett's opening statement is 10 pages, Scott's 3. Bennett's case takes up 162 pages, but relatively little is cross-examination by Scott. Scott's case is 27 pages, of which a good portion is cross-examination by Bennett. Another 6 pages record more witness questioning by Bennett. Bennett's closing argument is 9 pages, Scott's 2, then there are 4 more from Bennett.
The jury found Washington guilty in less than an hour, although juror Debra Holmes told the television program Frontline she always knew it was a mistake. The jury was out for an hour and a half deciding what sentence to impose. Part way through this time, the jurors asked the judge exactly what "life imprisonment" meant. The judge refused to offer any help, and Scott had already agreed without argument he needn't do so. The jury retired and came back with a death sentence.
Schrum was the first police officer Bennett put on the stand at trial. He said "Earl," as he referred to Washington, volunteered [from his jail cell] to talk to him at 12:40 p.m. on May 21, 1983, and confessed to the crime in Culpeper that occurred a year earlier.
Next on the stand was Hart, then Wilmore. Wilmore said Hart and Special Agent Hugh Elwood went to Wilmore's house to discuss the case the evening of May 21. The next morning, Wilmore and Hart went to Fauquier and conferred with Schrum and Dep. Dennis Zeets. Wilmore described questioning Washington.
Wilmore testified that Washington admitted to stabbing the woman in Culpeper, but when asked if she was black or white, he said black. Asked again, he switched it to white. In 1993 the BBC asked Washington: "Why did you tell them she was black?" "I didn't -- I didn't see a picture of her in the newspaper when she got killed or nothing. I just figured she was black." "You figured she was black?" "Yes, sir." "Without knowing what color she was?" "Yes, sir."
Earl also said Williams was "kind of short," but she was 5'8". He said she was "not fat, just a little heavy." She was 180 lbs. He said there was no one else in the apartment, but the victim's children were there when she was discovered. He said he didn't take his clothes off, just lowered his trousers. But when asked to identify a shirt, he said it was his and he'd taken it off because it was bloody. He said he kept his jacket on. He said he stabbed the victim two or three times, but the autopsy showed 38 wounds.
Wilmore testified that Washington described seeing a woman walk along the sidewalk. Wilmore said Washington recounted entering her apartment through an unlocked door. In another version Washington said he kicked the door in and didn't know who lived there. No damage was found on the door. Washington also said he cut himself, but his blood was never found in the apartment.
Wilmore said Washington looked at a shirt that Hart held up in front of him and said it was his. Asked what was unique about it, Washington pointed to a spot where a patch had been ripped off it. Scott did not ask Wilmore why he didn't have Washington describe the shirt before seeing it.
"[The police] asked him 'This is your shirt, isn't it?'" said Freedman. "Not, 'What were you wearing that day?' This is just incompetence in police training.... They try to confirm a theory.... Even if the shirt has anything to do with the murder, there's zilch link to Earl." In fact, many police interrogation manuals warn against the risk of getting a false confession, particularly if leading questions are used with a mentally retarded witness.
Part of the record of Wilmore's testimony in court includes a transcript of his questioning of Washington. Washington says that two guys he doesn't know drove him to Culpeper for no particular reason and parked the car and he got out at the victim's apartment. That's the last we hear of the two guys in the story. In this version, Washington says nothing about seeing a woman on the sidewalk. Rather, he says he kicked in the apartment door but didn't know whose apartment it was. Upon urging, he says the door was unlocked. He does not explain why he kicked it in or how he knows it was unlocked. Then he says he stabbed the woman once or twice, although the autopsy report showed 38 stab wounds. Scott never raised these questions during the trial.
The record shows that Hart asked Washington "Was the radio in the apartment on or off?" -- not "Was there a radio in the apartment?" Washington replies "On, but it wasn't very loud."
Wilmore asks, "Was there anyone else in the apartment?"
Washington replies, "I didn't see anyone."
This interview is clearly not Washington's first with Wilmore and Hart, for it refers to their having already shown him the shirt. According to Hall, it is confession 4, so Washington had some idea what answers to give before he said the words Wilmore recorded, yet he still didn't make much sense. Wilmore asks if Washington had been in "the apartment" before. Washington, as always, appears to try for an answer as close to indecisive as possible. He says he'd been there once before with a friend he doesn't remember. How this fits with his not having known whose apartment it was is not clear. Hart, apparently looking for a different answer, switches the term "apartment" to "house," asking Washington if he went in "the house." Washington says, "No, I stayed on the outside."
Washington's confession consists largely of "Yes, sir," responses to questions Wilmore and Hart asked. Washington could not produce information about the crime to which he was confessing. "They taught him the whole story," said Eric Freedman.
Hall's files have a record of a June 8, 1992, interview by Mollie Cupp of John Lynn, the defense attorney for Washington's Fauquier charges (now commonwealth's attorney in that county). Cupp worked with Marie Deans at the VA Coalition for Jails and Prisons in the mid 90s. "Lynn described Earl as being like putty. He says you have to ask him leading questions to get him to answer anything. He said, 'I could go in and say, "Did you have a good day, Earl" "Yes" "Did you get shot five times today?" "Yes".'"
After questioning Washington in Fauquier, Hart and Wilmore drove him to Culpeper so he could point out the apartment where the crime occurred. In a preliminary hearing, Hart said Washington volunteered to show them the crime scene.
Hart drove, with Washington in the front seat. Wilmore sat behind Washington. Hart said they took Washington to several apartment complexes, and that he said they were the wrong place. When they came to Village Apartments, Hart said Washington first said it was not the right place, then said, "wait." They said this occurred twice. Then Wilmore pointed to the right apartment and asked Washington if that was the one. He agreed that it was.
Wilmore testified at trial that Washington at first directed them to the wrong place. They then took him to others that he said were wrong. Arriving at Village Apartments, it took three tries and parking there to get Earl to point out an apartment. It was the wrong one (a detail Hart hadn't mentioned). When Wilmore pointed to the right one, Washington agreed, claiming he'd known it all along. Scott did not question the inconsistencies in these stories. Hart was put on the stand 3 times during the trial, but Scott declined to cross-examine him all 3 times.
Washington said he hitchhiked a ride with a white man after the crime, and threw the knife out the car window. This man was never identified and the story of Earl's ride with him never developed in detail. For example, we do not know if the man saw Washington throw the knife out of the car window. The knife was never found.
Scott brought up Washington's very low IQ, but did not use this fact to explain that he confessed, as it appears likely, to please his interrogators. In fact, Scott hardly questioned the investigators' techniques. Instead, he put Washington on the stand to deny that he made the confession.
"Presumably, that wasn't the plan," said Freedman. "Presumably the plan was to have Earl say 'I didn't do any of those things,' not to deny signing the confession. When he denied signing the confession, the prosecutor had a field day.... It was an absolutely incompetent defense. This case was the same pattern as three that were dismissed."
Asked about the case recently, Hart said he did not recall whether the confession presented into evidence was the fourth one. He said, "The court ruled on that case. It's an old case. The jury decided."
To contact Mr. Washington's Attorney, write to:
Barry A. Weinstein, Esq.
P.O. Box 2286 Blue Ridge, GA 30513
Phone: 706-745-1693
Email: weinsteinbarry@yahoo.com
You may also write to:
Robert Hall, Esq.
Hall and Sickels, P.C.
1210 Sunset Hills Road/Suite 150
Reston, VA. 20190
703-925-0500
To contact Earl Washington:
Earl Washington
Inmate # 138383
Keen Mountain Correctional Center
P.O. Box 710
Keen Mountain, Va. 24624
David C.N. Swanson, 30, grew up in Northern Virginia and has lived in North Carolina, New York, and Italy. He holds a Master's degree in philosophy from the University of Virginia, and works as a reporter and the online editor for a small-town weekly newspaper in Culpeper, Va., (see http://www.culpepernews.com).
Swanson has published articles in various magazines and newspapers. He has a website at http://www.cstone.net/~dcswan. Among his interests at the moment is getting Green party presidential candidate Ralph Nader on the ballot in 50 states (see http://www.votenader.org).