Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 3, 1991 TAG: 9103040281
SECTION: EDITORIAL PAGE: D-2 EDITION: METRO
SOURCE: Geoff Seamans/ Associate Editor
DATELINE: LENGTH: Long
Maybe the correct answer, no less ambiguous than the nature of Terry's office, is both.
Giarratano, of course, is the convicted rapist-murderer who, having exhausted all court appeals, was to have died Feb. 22 in Virginia's electric chair. He escaped that fate when on Feb. 19 he was offered conditional clemency by Gov. Wilder.
For many death-penalty opponents, it was a victory in an era when victories are rare.
I'm not so sure.
Were I a legislator, I'd vote to repeal capital punishment. Were I the governor, I'd commute the sentence of every man or woman given the death penalty under my watch.
But my opposition to capital punishment does not stem from any belief that it's wrong on the face of it for the state to take the lives of those who take lives.
Rather, my opposition stems from a strong suspicion that capital punishment not only fails to deter horrible crimes (a point on which most experts seem to agree), but that it also actively encourages their commission.
In the final analysis, it seems to me, capital punishment is just one more contributor - not the biggest contributor, but a contributor - to the background noise of random violence that pervades American society. The persistence of that noise has enured America to mayhem, and has eroded standards of behavior to far below what an allegedly civilized nation should tolerate.
The arbitrariness of its imposition ought to be argument enough against the death penalty. Giarratano lives; Wilbert Lee Evans, executed last year despite his role in saving the lives of guards during the 1984 breakout from death row at Mecklenburg prison, was not so lucky.
Though the Giarratano-Evans contrast is more dramatic than most, it is but one example among many of the capital-punishment roulette that is played routinely throughout America. The outcomes depend on which pleas are bargained, or juries empaneled, or judges assigned, or appeals made.
Giarratano himself was offered a bargain before his non-jury trial in 1979: If he'd plead guilty, he'd get two life sentences plus 50. In a suicidal depression (his supporters say), he turned it down. He confessed (falsely, he now says) to the crimes, but entered a plea of not guilty by reason of insanity.
Never in doubt was the heinousness of those crimes. A Tidewater woman and her 15-year-old daughter were brutally slain, and the daughter raped.
Nor has Giarratano during his imprisonment committed any redemptive deed, unless you count acquisition of self-taught knowledge of the law, of the sort that failed to spare Evans.
But Giarratano's cause has drawn a number of death-penalty supporters as well as opponents on the grounds that he may not have done it. His plea to Wilder was based on his claim to remember nothing about the night of the murders and his assertion of the existence of evidence inconsistent with his guilt. The plea was conditioned - shrewdly? - on his willingness to waive the constitutional guarantee against double jeopardy and submit to a retrial.
Reasonable doubt about Giarratano's guilt, therefore, was the underpinning of Wilder's offer of conditional clemency. Giarratano won't be executed, but he'll stay in prison unless a new trial finds him not guilty.
Citing the constitutional separation of powers, however, the governor left it for the attorney general and the courts to decide whether Giarratano in fact could get a new trial.
That Wilder and Terry are at political odds is no secret. The likelihood that Wilder shed tears about putting Terry on the spot is about as slim as the chance, despite her formal role as the governor's attorney, that Terry shed tears about telling Wilder to go stuff it.
Still, when the issue is life or death for a specific individual - rather than, say, coeducation at Virginia Military Institute - I'm willing to concede the possibility that even jaded politicians might act on principle rather than expediency.
Wilder's study of the case might well have led him genuinely to conclude that enough evidence was either poorly presented or not entered at all during Giarratano's trial to warrant a new one.
Terry's obligation as attorney general to uphold Virginia's criminal-justice system might well have led her genuinely to conclude that the system, having done its job, should not be forced to have another go at it.
If so, her steadfastness in the face of the bipartisan stampede for a new trial merits a measure of praise. Micromanaging criminal trials and the appeals process from afar (in time as well as geography) tends to make the system more, not less, arbitrary.
With that steadfastness, however, comes the folly of ignoring the context created by the governor's decision.
The conditional pardon, combined with Terry's refusal to seek a new trial, has put the commonwealth in an untenable position. The commonwealth is saying that (1) it won't put Giarratano to death because there's too much uncertainty about his guilt, but (2) there's enough certainty to keep him in prison for at least another 13 years.
That's absurd. Even when you understand that (1) is the result of an act of the governor and (2) of a position of the separately elected attorney general, it's absurd.
Perhaps in Terry's view the original verdict should have stood. But in practical fact it hasn't. Giarratano can't be both guilty and not guilty of a terrible crime.
There's only one way I know of to find out, and that's to retry him.
by CNB