US Supreme Court vacates two Virginia Death Sentences

Last week, on April 18, 2000, the US Supreme Court overturned two Virginia Death Penalty cases.

Virginia has long been known for executing innocent men, following show trials reminiscent of the Stalin era.

In order to prevent its own decisions from being overturned, the Virginia Supreme Court has constructed a maze of rules which are impossible to follow and which, unless followed, make it impossible to obtain a hearing in state or federal court.

Among these are the notorious 21-day rule, a rule not passed by the state legislature but imposed by the Virginia Supreme Court, which denies a trial judge jurisdiction to modify or vacate a sentence when more than 21 days have passed, even if absolute proof emerges that the defendant is not guilty.
Earl Washington Jr.
Earl Washington Jr.

It is under this 21-day rule that innocent men have been sent to their deaths in the electric chair, without ever being able to obtain a hearing on their guilt or innocence.

In the two cases which the US Supreme Court reversed last week, guilt or innocence was not the issue. Both of the defendants were guilty of their crimes. The question was whether they should receive the death sentence or a lesser punishment.

In vacating these death sentences last week, the US Supreme Court effectively set aside rules of the Virginia Supreme Court which had made it impossible for a defendant to obtain a hearing on habeas corpus, no matter how innocent the evidence showed him to be.

In Virginia, there is a rational, logical and uniformly applied system under which a determination is made as to whether the death sentence is passed: If the defendant is black, he gets death. If the defendant is white, he gets life.

This established law is administered by Chief Judge Harry L. Carrico, the same judge who, in 1967, ruled that it was illegal under Virginia law for a black man to get married to a white woman. Loving vs. Virginia, 147 South Eastern Reporter, 2nd, page 80. This decision, like many other decisions by Justice Carrico, was overruled by the United States Supreme Court in Loving vs. Virginia, 388 US 1 (1967), which is why the Virginia Supreme Court has since passed rules denying jurisdiction to both the lower courts and the higher courts.

In spite of the ultimate fairness of the Virginia system, there are those whiners and gripers who nevertheless complain. These are the black men who are sitting on death row.

Virginia has been quite good at bringing an end to their complaints, especially within the past few years.

Not every man on death row is black, however. One white inmate on death row was a former police officer named Joseph M. Giarratano. During his years on death row, Giarratano became a paralegal. He wrote up and filed dozens of habeas corpus petitions. He several times had certiorari granted and has had his cases heard and argued before the United States Supreme Court. His name is published all over the law books.

Finally, Giarratano won his biggest case of all. He got his own death sentence vacated. They moved him off death row. After getting off of death row, he was transferred to prisons in other states, presumably to stop him from continuing to help Virginia prisoners. He is now back in Virginia prison, however.

This obnoxious fellow, who still keeps trying to get his own innocent cell mates released, thereby messing up things and vitiating the authority and power of the Commonwealth of Virginia, got involved in the case of Earl Washington Jr., who was convicted of the murder of Rebecca Lynn Williams, 19, who had been raped and then stabbed to death in her Culpeper apartment in 1982.

This was one of the most horrific crimes imaginable. The young woman had apparently brought her two small children home, one in a stroller. Evidence including her own statements prior to her death showed that, as she had pushed open her apartment door, a man had followed her into her room, had raped her and then had stabbed her 38 times. Earl Washington Jr. had happened to be in the area. He was later arrested, tried, convicted and sentenced to death.

The published Virginia Court of Appeals decision recounted the evidence in gory detail and left no doubt that Washington was manifestly guilty of this crime.

But, as Giarratano spent years siting on death row with Washington, who was still protesting his innocence, Giarratano began to wonder about this verdict. Washington still had habeas corpus petitions pending. There was still a small chance that Washington might beat the case. Meanwhile, DNA tests, which had not been available at the time of the 1982 murder, had since become available.

Giarratano, who was later interviewed by the Richmond Times Dispatch, said that he pondered long and hard about the decision of whether to take the chance of asking for a DNA test.

The risk was that if the DNA showed a match, that would be conclusive proof that Washington was guilty, especially since Washington had not known the woman and could not have had sexual intercourse with her any other way. Thus, it was risky to ask for a DNA test, while the normal appeals were still pending.

After long consideration and in spite of not being completely sure whether Washington was telling the truth or not, Giarratano decided to press for a DNA test. Washington himself, being mentally retarded, had left the decision making to the prisoner in the cell across the row.

As it happened, for one brief shining moment in 1994, an honest attorney general was in office in Virginia. He was an old schoolmate of Sam Sloan named Stephen D. Rosenthal, whose brother, Macey Rosenthal, had been in the same 4th grade class at Boonsboro School in Bedford County with Sam's brother Creighton.

Rosenthal was only in office as Virginia Acting Attorney General for a few months, during the brief period after Mary Sue Terry, a well known bull dyke, resigned as attorney general to campaign for Governor of Virginia and before a permanent replacement attorney general could be elected.

During this brief period when a rare honest Virginia Attorney General was in office, Rosenthal ordered a DNA test taken of the sperm which had been found in the victim's vagina.

The results were what nobody expected: Sperm from two different men were identified through the DNA test. This meant that Rebecca Lynn Williams had had sexual intercourse with two different men in the hours before she died.

The sperm was mixed together, making it impossible under the technology at that time to identify the men involved, but neither of the sperm were from the defendant, Earl Washington Jr.

Rebecca Lynn Williams was married and the sperm of her husband was also tested. The test results showed that neither of the sperm had come from her husband, either.

Before she died, Rebecca Lynn Williams had stated in a dying declaration that there had been only one attacker. This meant that Earl Washington Jr. could not have been the man who raped and then murdered Rebecca Lynn Williams.

In a civilized state, that would have ended the matter and Earl Washington Jr. would have been released, especially since the jury which convicted him had been told that there was a blood-typing match proving the guilt of Washington, based upon the primitive blood-typing tests which were available in 1982. However, in the Commonwealth of Virginia, the guilt or innocence of the accused is not an issue which can be raised on appeal or by way of habeas corpus. The only issues which can be raised are whether the trial judge committed "error", such as an incorrect ruling on the evidence. Since Virginia judges are able to avoid the most obvious errors, few convictions are overturned, even though the defendants might be innocent.

In the Earl Washington case, try as they might, appellate counsel could not find any error which had been committed by the trial judge. The trial had been conducted perfectly. The only problem was that the wrong man had been convicted.

Earl Washington was scheduled to die in the electric chair. The usual frantic wave of petitions and appeals set in which invariably occur when ever an execution date draws near. One after another, all of these petitions were denied. By this time, the case had become the top item in the news. Everybody in Virginia knew that an innocent man was scheduled to die in the electric chair. However, there is no provision in Virginia law to vacate a death sentence on the ground of innocence.

An appeal for clemency was made to Governor Douglas Wilder of Virginia. Included in this appeal for clemency was a letter from the Attorney General of Virginia certifying that Earl Washington Jr. could not possibly be guilty of the crime for which he was scheduled to die. It was an unprecedented act for the Virginia Attorney General to certify such a thing.

However, Governor Wilder, despondent over his failed bid to be nominated as President of the United States, said that he does not interfere in pending court cases. Wilder said that for this reason he could not get involved. The habeas corpus appeals for the life of Earl Washington Jr. were still pending, and would remain pending until the moment he was executed, even though it was now obvious what the result would be.

Defense counsel consulted and decided to take a chance. They decided to dismiss all the appeals filed on behalf of Earl Washington, Jr. and then go back and again ask Wilder for clemency.

Actually, this was not taking much of a chance. The lawyers knew that their habeas corpus petitions were not going to be successful because, in reality, no error had been committed by the trial judge.

On the day before Earl Washington Jr. was scheduled to die in the electric chair, the appeals were dismissed. The attorneys filed their dismissal notices and then went back to Governor Wilder with their petition for clemency.

Governor Douglas Wilder, in his infinite wisdom, decided to grant clemency. He changed the death sentence to a sentence of life in prison!

Sweetness and light prevailed. Justice had finally been done. The Richmond Times Dispatch proudly blared its headlines that a just result had been achieved.

Nobody ever asked the question of whether this was a truly logical and correct result.

Do you know what? That ungrateful fellow, Washington, is not even satisfied that he has been granted a long life instead of death. The Richmond Times Dispatch has just published a story that he now wants an even more extensive DNA test done that will re-prove what has already been proven, that he is not guilty of this crime, so that he will finally get out of prison, where he has been for 18 years since 1982.

The Richmond Times Dispatch story is online at

This just goes to show you: If you give 'em an inch, they will take a mile.

Sam Sloan

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