The False Confession

In 1985, my for­mer home state of Vir­ginia came with­in eight days of exe­cut­ing an inno­cent man. Vir­ginia has the longest rela­tion­ship with the death penal­ty of any state, hav­ing exe­cut­ed more than 1,300 peo­ple, start­ing with Cap­tain George Kendall by fir­ing squad in Jamestown in 1608 for espi­onage, and the pace has con­tin­ued in mod­ern times. Since the Supreme Court affirmed the death penal­ty in 1977, Vir­ginia has exe­cut­ed 113 inmates.

For 300 years, Vir­ginia hanged cap­i­tal defen­dants. In 1909 the state aban­doned the gal­lows in favor of the elec­tric chair. “Old Sparky” is still avail­able in Vir­ginia at the option of a con­demned inmate, but most now choose to die by lethal injection.

Earl Wash­ing­ton, Jr., was 23 in Sep­tem­ber, 1985, when the Culpeper Cir­cuit Court sen­tenced him to death. He had lived all his life in Fauquier Coun­ty. The local schools pegged him as a slow learn­er and placed him in spe­cial edu­ca­tion class­es. He dropped out of high school and worked as a day labor­er, most­ly on local farms.

On the night of May 21, 1983, Earl and his broth­er were drink­ing at his aunt’s house in Beale­ton. They argued and Earl got mad. He had seen a pis­tol in the house across Route 17 when he used the tele­phone there.

At 3 a.m. that night the sound of break­ing glass awak­ened Hazel Weeks, a 78 year old wid­ow. She got out of bed and found a young black man in her hall­way. He hit her over the head with a chair and struck her twice more while she was on the floor. She offered to pay him to spare her life. “Where is your mon­ey?” he said. Blood soak­ing her gown, she stag­gered to her bed­room and gave him her purse. He took it and fled. She lat­er dis­cov­ered that he had also stolen a pis­tol from her kitchen.

When Deputy Den­ny Zeets respond­ed to Hazel’s call, he heard gun­shots across Route 17. At Earl’s aunt’s house, he found Hazel’s purse and Earl’s broth­er with a gun­shot wound to his foot. He said Earl shot him acci­dent­ly and ran away. At dawn, the police arrest­ed Earl in a field near Hazel’s house.

A series of inter­ro­ga­tions fol­lowed. Earl con­fessed to the assault on Hazel ear­ly on. The inves­ti­ga­tors then ques­tioned him about a string of vio­lent crimes near War­ren­ton. He con­fessed to ten felonies, includ­ing sev­er­al sex­u­al assaults.

A year ear­li­er, Rebec­ca Williams, a 19 year old moth­er of three, crawled out on the porch of her apart­ment in near­by Culpeper, naked and bleed­ing from 38 stab wounds. She sur­vived only long enough to tell her neigh­bors that a lone black man attacked and raped her. Her mur­der remained unsolved when Earl attacked Hazel. Under per­sis­tent ques­tion­ing, Earl con­fessed, pro­vid­ing details the inves­ti­ga­tors believed only Rebecca’s mur­der­er could have known.

In the lead-up to Earl’s tri­al, he recant­ed all the con­fes­sions except the attack on Hazel, and facts emerged that cleared him of most of the crimes. By Jan­u­ary, 1984, the pros­e­cu­tion dropped all charges except those involv­ing Hazel and Rebec­ca, and Earl’s tri­al went forward. 

The key issue was the verac­i­ty of Earl’s con­fes­sion to Rebecca’s murder/rape. The inves­ti­ga­tors did not record the inter­ro­ga­tions, but Agent Reese Wilmore had writ­ten a lengthy tran­script of a final ses­sion about Rebec­ca, and Earl had signed it. Wilmore read the tran­script to the jury.

The defense argued that Earl con­fessed to crimes he didn’t com­mit because he is men­tal­ly impaired. Experts tes­ti­fied that his IQ scores ranked in the bot­tom two per­cent of adults and esti­mat­ed his men­tal age as 10 years old.

The jury found Earl’s con­fes­sion con­vinc­ing beyond a rea­son­able doubt. They rec­om­mend­ed the death sen­tence and the judge fol­lowed their recommendation. 

Earl arrived on death row in Meck­len­burg on May 4, 1984. Unlike Cal­i­for­nia, where appeals last longer than the defendant’s life, Virginia’s appel­late process is stream­lined. Earl’s appeals to the Vir­ginia and U.S. Supreme Courts failed quick­ly, and the state sched­uled his exe­cu­tion for Sep­tem­ber 5, 1985. Fed­er­al habeas appeals were still avail­able, but Earl’s attor­ney aban­doned the case, leav­ing him unrep­re­sent­ed as his final days ticked by.

A fel­low death row inmate, Joe Gia­r­ratano, thought Earl was inno­cent. A high school dropout with no legal train­ing, Gia­r­ratano draft­ed and filed a brief argu­ing that exe­cut­ing a cap­i­tal defen­dant, who had no lawyer, was unconstitutional.

The jail­house-lawyer fil­ing caught the eye of a Man­hat­tan law firm, Paul, Weiss. The firm sent a young asso­ciate to Meck­len­burg to meet with Gia­r­ratano. The first words out of Joe’s mouth were: “Earl Wash­ing­ton has an IQ of 69, an exe­cu­tion date three weeks away, and no lawyer. What the hell are you going to do about it?”

Attor­neys at Paul, Weiss respond­ed by work­ing around the clock for the next ten days. On August 27, the firm filed a peti­tion for a stay of exe­cu­tion. It was grant­ed just eight days before Earl’s exe­cu­tion date.

The stay gave the firm breath­ing room to launch a robust appel­late defense, and for the next decade it man­aged to hold the state at bay.

Foren­sic sci­ence advanced. In 1993, a DNA analy­sis cast doubt on Earl’s guilt, but a rule in Vir­ginia barred appel­late courts from con­sid­er­ing evi­dence raised more than 21 days after a jury ver­dict. Earl’s appeals failed.

By late 1993, only a Governor’s par­don stood between Earl and Old Sparky. Gov­er­nor Dou­glas Wilder was Virginia’s first and only black gov­er­nor. His crit­ics claim he feared that par­don­ing a black man accused of mur­der might jeop­ar­dize his pres­i­den­tial aspi­ra­tions. Wilder vehe­ment­ly denied this. For what­ev­er rea­son, he delayed his deci­sion until his last day in office and then split the baby. He denied the par­don, but com­mut­ed Earl’s death sen­tence to life in prison.

By 2000, DNA analy­sis had advanced in sophis­ti­ca­tion, and a new bat­tery of tests exon­er­at­ed Earl. Gov­er­nor James Gilmore grant­ed him a par­don, and he walked out of prison in 2001.

In 2002, DNA sam­ples in Rebecca’s case matched the DNA of Ken­neth Tins­ley, a man con­vict­ed of rape in Albe­mar­le Coun­ty. He pled guilty to Rebecca’s murder/rape in 2007.

Why did Earl con­fess to a mur­der he didn’t com­mit and how did he pro­vide details about it that only the mur­der­er should have known? The easy answer would be that his inter­roga­tors coerced the con­fes­sion, but there’s anoth­er pos­si­bil­i­ty. In a fas­ci­nat­ing book about Earl’s case, An Expend­able Man, by Mar­garet Edds, she dis­cuss­es the the­o­ry that Earl spent his life on pins and nee­dles, not under­stand­ing what peo­ple want­ed from him, but try­ing to guess. He was anx­ious to please, sus­cep­ti­ble to sug­ges­tions, and sen­si­tive to cues, hints, and body lan­guage. A close look at the inter­ro­ga­tions indi­cates that he gave his ques­tion­ers the answers he thought they want­ed and that they unin­ten­tion­al­ly tipped him off to the details of the crimes. For exam­ple, he orig­i­nal­ly said Rebec­ca was black, but after read­ing the reac­tions of his ques­tion­ers, he quick­ly changed his answer to white.

In last month’s post, I stat­ed my view that Richard Ramirez, The Night Stalk­er, deserved to be put to death, but Earl’s case stands as a con­vinc­ing coun­ter­ar­gu­ment against the death penal­ty. Only a com­bi­na­tion of serendip­i­tous cir­cum­stances saved him: Giarratano’s improb­a­ble inter­ven­tion, Paul, Weiss’s last minute hero­ics, and Gov­er­nor Wilder’s pre­car­i­ous commutation.

Unfor­tu­nate­ly, Earl’s cau­tion­ary tale is not unique. The advance­ment of foren­sic sci­ence has exposed scores of wrong­ful con­vic­tions. Since 1973, 155 death row inmates have been exonerated.

The death penal­ty is unfor­giv­ing. One mis­take is too many, and we’ve almost made 155 that we know about. One way to rec­on­cile the con­flict­ing emo­tions inspired by the Night Stalker’s sav­agery and Earl’s sto­ry would be to restrict the death penal­ty to the most heinous crimes where there is absolute­ly no doubt of guilt. If we can’t do that, we should abol­ish it alto­geth­er, because the risk of exe­cut­ing an inno­cent defen­dant under cur­rent laws is too great. 

Post Script: In 2007, Vir­ginia paid Earl $1.9 mil­lion to set­tle his claim of wrong­ful con­vic­tion. At that time, he was a main­te­nance work­er, mar­ried, and liv­ing in Vir­ginia Beach.

In 2002, the Supreme Court ruled in Atkins v. Vir­ginia that the exe­cu­tion of a men­tal­ly impaired defen­dant is unconstitutional.