Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, February 17, 1991 TAG: 9102170090
SECTION: VIRGINIA PAGE: D-1 EDITION: METRO
SOURCE: TONY GERMANOTTA LANDMARK NEWS SERVICE
DATELINE: RICHMOND LENGTH: Long
But time is running out for the 33-year-old waterman convicted in 1979 for the murder of an Ocean View woman and the rape-strangulation of her 15-year-old daughter.
Giarratano's execution is scheduled for 11 p.m. Friday, and every legal appeal has run its course.
"I remain realistically hopeful," Giarratano said in an interview last week at the State Penitentiary. "But I'm very aware that every moment and every new day, I'm coming one step closer.
"I'm waiting, any day now, for them to start testing the chair. The lights will dim, the TV will flicker or whatever. I know that's going to happen."
Giarratano is the only inmate in the ancient stone prison, which was closed in December and scheduled for demolition. The death chamber at the penitentiary will be moved to the yet-to-be opened prison in Greensville. Giarratano's execution likely will be the last in Richmond.
Sleep comes hard in the cell near the death chamber, Giarratano said. He is cramming last-minute details and scores of interviews into a schedule packed with legal conferences.
All that remains for Giarratano is his petition to Gov. Douglas Wilder, who already has sent three men to the electric chair.
Giarratano has asked that the governor grant him a conditional pardon, one that would not set him free or remove the murder indictment against him.
Such a pardon, Giarratano contends, would allow the state to hold a new trial that could clear the cloud on his conviction raised by new evidence that has been barred by legal technicalities from consideration in his appeals.
A governor can pardon a prisoner or commute a death sentence, but he can't order a new trial. The unusual conditional pardon, Giarratano has argued, could accomplish the same result.
Giarratano has become an international celebrity during his 12 years on death row, starring in European documentaries on the American penal system and gaining supporters from as diverse a field as Amnesty International and conservative columnist James J. Kilpatrick.
Giarratano has been close to death before. In 1983, he dropped his appeals and came within hours of electrocution before being convinced to fight on.
That began a long period of self-discovery that Giarratano contends transformed him from a guilt-wracked, suicidal madman into a nationally acclaimed jail-house lawyer who no longer believes he committed the crimes to which he repeatedly confessed in 1979.
After the killings, he fled the Ocean View apartment he was sharing with the victims and took a bus to Jacksonville, Fla. He surrendered to a sheriff's deputy there, saying he had killed two women in Norfolk.
That was the first of five confessions from Giarratano. Their inconsistencies are among the questions that have since been raised about his guilt.
Giarratano was convinced he was evil and tried to commit suicide before his trial and several times later. He was placed on heavy doses of sedatives, declared legally sane and was convicted in a non-jury trial by Norfolk Circuit Judge Thomas McNamara. Against his attorney's advice, Giarratano turned down an offer of a life sentence and asked the judge for the death penalty.
McNamara ruled that Giarratano would be a danger to society and ordered his execution. It was only after 1983, when Giarratano finally got off the sedatives prison doctors had prescribed, that doubts began surfacing about the case.
Even his supporters had always assumed Giarratano's guilt, but things he began mentioning in conversation didn't support the conviction, they said.
Virginia law is among the most restrictive in the nation when it comes to admitting new evidence after a trial. Unlike most states, those rules barring after-the-fact submissions under the doctrine of "procedural default" are not relaxed in Virginia, even in death-row cases.
So Giarratano never was able to get a hearing in which he could explore the evidence that put him on death row.
"If I was as guilty . . . as the attorney general says I am, why are there all these questions?" Giarratano asked.
Some items of evidence, including the pre-sentence report upon which McNamara based his execution order, have been sealed, he said. The attorney general provided a little information to his attorneys, Giarratano said, and when they checked it out and discovered the report contained what seemed to be forged letters, his attorneys were no longer granted access to the files.
Giarratano's investigators think they found a box of evidence in storage in the Norfolk police station that never was presented at trial, but contend they've not been allowed to examine it.
"To me, that says they're hiding something," Giarratano said. "That's the only logical conclusion that can be drawn from that. And that's scary."
Giarratano's attorneys and friends had a hard time convincing him he may not have raped and strangled Michelle Kline, 15, and murdered her mother, Barbara "Toni" Kline, 44. He is still searching for the answer and believes a new trial might provide it.
"I don't know," he said Tuesday afternoon. "In my heart, I don't believe I killed them. They were my friends, helping me at a time I needed help. I had no history of violence, except to myself. I'm in the same position you or the jury is in. I have to look at the evidence."
In 1979, Giarratano was a heavy drug user, working occasionally on a fishing boat. He had been abused as a child, and, at 11, turned to drugs as an escape. He was still an addict, high on a combination of narcotics and alcohol, when the murders occurred.
Around noon, Feb. 5, the Klines' landlord entered their unlocked apartment and called police.
Officers discovered Barbara Kline lying in a pool of blood on her bathroom floor. Her throat had been sliced and she had been stabbed in the chest. Her daughter, Michelle, was dead in another room, guarded by two vicious dogs. She had been strangled and appeared to have been sexually assaulted.
Neighbors told police about Giarratano, saying he had a violent temper. Early the next morning, Giarratano surrendered in Jacksonville.
He later said he had awakened from a drug-induced stupor to discover the murdered women and believed that he must have killed them in one of his frequent blackouts. On the bus ride to Florida, he became more certain and decided he had to turn himself in.
Jacksonville officers took his initial confessions. In those, he said he murdered the mother first, over a fight about money, then killed the daughter because she was a witness and wouldn't stop screaming. Giarratano did not mention raping the girl, according to those confessions.
After Norfolk homicide detectives arrived, Giarratano gave a different version more consistent with the crime scene, saying he had raped the junior high school student and then strangled her and killed her mother when she discovered the crime. In this confession, there was no mention of an argument about money.
Back in Norfolk City Jail, Giarratano noticed some blood on one of his boots. He called the guards, showed them the blood, and they took the boots as evidence. The blood had not been noticed by Jacksonville authorities, who had searched Giarratano after his arrest, or by the Norfolk detectives who had interviewed him and gotten his confession.
The blood matched Michelle's type.
Giarratano's trial was over in a few hours. He had tried to waive his right to an attorney, but McNamara refused. The court-appointed attorney tried to get him to agree to a plea bargain, but Giarratano insisted on an insanity defense, even though he already had been ruled sane.
Giarratano's investigators have tried to attack the physical evidence used to support the last confession.
The blood on his boot, they contend, couldn't have come from Michelle because there is no record of her bleeding profusely; an eyewitness said there was no blood on the sheets where her body was found. The police never got a test on Barbara Kline, whose blood was found in the bathroom.
Prosecutors entered as evidence a crime-scene photograph showing a bloody footprint leading from that bathroom, but there was no blood on the sole of Giarratano's boot, and even the expert who tested the boot for the trial has said it could not have made the print.
The state also introduced a pubic hair found on Michelle's body that was consistent with Giarratano's. Seven other pubic hairs found on or near the teen-ager's body could not have come from Giarratano, and there was no explanation to whom those hairs belonged.
The investigators even have disputed the occurrence of a rape, which made the crime a capital offense. The medical examiner found sperm but no semen during the autopsy, which some experts said could indicate that the girl had had sexual relations up to 72 hours before her death.
Giarratano's body fluids were not tested to see if they matched the sperm recovered, they said.
And blood patterns around Barbara Kline's body indicate she was killed from behind by a right-handed assailant, Giarratano's experts have concluded. Giarratano, they say, is left-handed and suffers from a neurological impairment that leaves his right side weak.
All this, they said in their petition to the governor, is important evidence that casts doubt on the case. But the evidence is barred by court rules from being considered in the many years of appeals simply because the questions weren't raised at trial.
Giarratano's attorneys wrote in their petition to the governor: "Is our legal system so myopic in its focus, so malignant in its application that Joe Giarratano's life is demanded in sacrifice to our adherence to legalism over justice? Is his final epitaph to read, `Here lies Joseph Giarratano, a good man, procedurally defaulted'?"
The governor, they argued, is the "court of last resort" charged with preventing miscarriages of justice.
A conditional pardon could require that Giarratano be retried, they said.
No witnesses have died, and the only item of evidence that appears to have disappeared is a videotape of the crime scene that could only serve to help Giarratano's case, his supporters have argued to Wilder.
Wilder has asked for more information about the legality of such a pardon. Giarratano says that if he had a new trial and was convicted again, he would be right back on death row anyway. "If I'm guilty," he asked, "what difference does it make if I die now or six months later?"
He said he hopes the governor doesn't wait until the last minute to announce his decision on the case. Should he lose, Giarratano said, there are things he would like to do.
"My peace is made," he said. "Then it's just saying goodbyes. I don't fear dying. To me, it's just going into another room. I just don't know where the furniture is at."
But he worries about his friends, the lawyers and activists who have become his only real family, the conservative death-penalty advocates who see his as a case that requires re-examination.
"If I'm executed," he said. "I don't think people will forget."
by CNB