Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, February 20, 1991 TAG: 9102200229
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: TONY GERMANOTTA LANDMARK NEWS SERVICE
DATELINE: LENGTH: Medium
But in a legal document that seemed to break new ground in the murky area of gubernatorial pardons, Wilder left it to Giarratano to decide whether he would die, spend at least the next 13 years in prison, or risk another death sentence by pressing for a new trial and freedom.
Giarratano must accept the pardon by 5 p.m. this afternoon. There is no deadline on when he must decide between the other options.
Wilder issued a six-page conditional pardon for Giarratano that constitutional scholars said was unprecedented and could spare his life without risk of setting him free on technicalities.
Giarratano, 33, the only prisoner being held at the state Penitentiary in Richmond, was scheduled to die at 11 p.m. Friday. His case has become a rallying point for a diverse group of supporters spanning some of the nation's most staunch conservatives and liberals.
His supporters said Tuesday afternoon that Giarratano was not making any comments on the governor's offer and was declining interviews while he and his lawyers considered the options. The Associated Press reported that Giarratano said he "let out one hell of a cheer" when he heard the news.
The governor's action was not welcomed by relatives of the victims in the case. Giarratano was convicted in the deaths of Barbara "Toni" Kline, 44, who had been stabbed repeatedly in the bathroom of her apartment, and her daughter, Michelle Kline, 15, who had been strangled and appeared to have been raped.
"It's the most unjust thing I've ever seen in my life," said Earl F. Jones, uncle and brother-in-law of the slain women.
Giarratano had come within hours of execution once before, in 1983. At that time, he was convinced that he had committed the murders and wanted to die. He was persuaded to continue fighting for his life and began what he has described as a rebirth.
He taught himself law in the death row library at Mecklenburg Correctional Center and brought actions against the state that resulted in better living conditions at the prison. Giarratano also came within one vote in the U.S. Supreme Court of winning court-appointed legal representation for Virginia's condemned beyond the initial round of appeals.
Over the past few years, his supporters began doubting Giarratano's guilt and convinced him that he might not be responsible for the murders.
The governor had no comment on his pardon. His chief counsel on such matters, Walter McFarlane, said if Giarratano accepts pardon, he would first be eligible for parole in 2004.
Wilder gave Giarratano the option of signing away his constitutional protection against re-prosecution for the crime and asking the attorney general to petition the courts for a new murder trial.
"Giarratano may decide that the stakes are too high to go through the process," McFarlane said, adding that if Giarratano does waive his double-jeopardy rights, "the attorney general has our blessings to ask the court for a retrial."
The governor stopped short of demanding such action, however, choosing not to get into a battle between the powers of elected officials.
A spokesman for Attorney General Mary Sue Terry said she would not comment on the case until Giarratano decides which choice to take.
Giarratano had asked the governor to issue a conditional pardon and had offered to waive all constitutional rights to get a chance to clear himself in court. But it was unclear Tuesday evening whether he would take the chance of once again being convicted and condemned.
Giarratano will have to decide whether questions raised since his trial are strong enough to ensure he will not be found guilty again in a retrial. In an interview last week, he said he believed he would be cleared in a new trial.
Giarratano's supporters in recent years hired investigators and began turning up inconsistencies in the evidence that had sent him to death row.
They questioned whether there had been a rape, which made it a death-penalty case, and whether Giarratano's many contradictory confessions were supported by physical evidence raised in the half-day, non-jury trial.
Before his trial, Giarratano had tried to commit suicide, sought to dismiss his lawyer, turned down a life-sentence plea bargain and pursued an insanity defense against his attorney's advice.
No one at the time questioned whether Giarratano had committed the murders, only whether he should be held responsible. His psychologists lately have concluded that Giarratano was trying to use the legal system to complete his suicide efforts.
All these issues were raised in both state and federal appeals, but the courts refused to re-examine the conviction.
Detective R.J. Mears investigated the case 12 years ago and witnessed the confession that ultimately convicted Giarratano. Mears has retired from the Norfolk police force, but has kept up with the case.
"To me, it's a bunch of crap," Mears said of the pardon. "He should have fried a long time ago, no question about it."
by CNB