Furor Anew With Release of Man Who Was Innocent

February 11, 2001

By FRANCIS X. CLINES

WASHINGTON, Feb. 10 — What critics of capital punishment view as the sad saga of Earl Washington Jr., a mentally retarded man recently pardoned on DNA evidence 18 years into a life sentence for murder, is about to take one more, anticlimactic turn on Monday after he is finally released from prison in Virginia.

 A model inmate with the mind of a 10-year-old, Mr. Washington, 41, was scheduled to appear here at a Capitol Hill news conference in his first hours of regained freedom, on behalf of a campaign to legislate greater opportunities for appeal under the death penalty, a fate he was narrowly spared during incarceration.

 But corrections authorities are restricting him to his new hometown, Virginia Beach, and critics accuse the state of a parting vindictive gesture by officials chagrined that the Washington case has stirred increased notoriety about Virginia's criminal justice system.

 "This is indicative of a system that is not known for admitting its mistakes," said Senator Patrick J. Leahy, the Vermont Democrat who, along with Representative Robert C. Scott, Democrat of Virginia, had invited Mr. Washington to appear at the Capitol in support of the federal bill revising death penalty law. 

 Officials in Virginia emphasized that it was standard procedure there to restrict out-of-state travel by newly released inmates, but Senator Leahy contended that the state was determined to "not even let him tell his story to the American people."

 Mr. Scott maintained that "Mr. Washington should have been out 10 years ago." The congressman noted that after being ultimately cleared of the killing, Mr. Washington was denied parole on an unrelated assault and had to serve twice the average time for that crime.

 Mr. Washington was convicted of the 1982 rape and murder of a 19-year-old woman after the police in the northern Virginia town of Culpeper arrested him in the assault of a neighbor and obtained confessions to a series of unsolved homicides. All the capital cases but the one involving the rape and murder were dismissed. He was sentenced to death for that crime largely because of his confession, during which he had no lawyer present.

 Records later showed that detectives had asked leading questions of Mr. Washington, who offered monosyllabic answers and even corrected himself at their suggestion when his response did not fit their account.

 When DNA evidence was found in 1994 that new lawyers considered exculpatory, it was too late to be of use under the Virginia law — the toughest in the nation — that allows a felon only three weeks after sentencing to present fresh evidence for appeal. About half the states, New York among them, have no such limitation, and the three-week window has attracted increasing criticism because of the Washington case. 

 The only alternative then was an appeal to Gov. L. Douglas Wilder, who found that the new evidence cast enough doubt to allow a commuted sentence of life without parole, only days before Mr. Washington was to be executed. After pressure prompted a second, more sophisticated DNA test, Mr. Washington was granted a full pardon last year by Gov. James S. Gilmore  but was kept in prison when he was denied any parole time in the assault conviction, a first offense that Mr. Washington says he did commit and dearly regrets.

 The Washington case is a major factor in the expected legislative approval this month of the first, slight easing of the state's 21-day window on new evidence. The bill would allow appeals for exculpatory DNA evidence after 21 days, but not for any new evidence of a kind like ballistics, fingerprints or witnesses. 

 "This is an important first step," said State Delegate James F. Almand, an Arlington Democrat who has fought for years for broader post-conviction appeals when new evidence of innocence is uncovered. "There's no flexibility now, just a resort to clemency or pardon by the governor," said Mr. Almand, who says stronger changes may be possible after a new state study of the Virginia death penalty is completed in December.

 Governor Gilmore and other state officials have firmly defended the fairness of the death penalty system. But critics like the Innocence Project, a pro bono lawyers group that challenges convictions through DNA evidence, have complained that Virginia's court restrictions make it one of the most unfair in the nation. 

 Mr. Washington was reported in strong spirits by one of his lawyers, Barry Weinstein.

 "He smiled and told me, `All I have left is two more days and a wake-up call,' " Mr. Weinstein said after visiting Mr. Washington at the Keen Mountain Correctional Center, on the state's southern border.

 "But they're still trying to hold Earl down," Mr. Weinstein said. "They simply do not want Earl's case drawing attention to their death penalty system and how well it's greased."