Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, February 10, 1992 TAG: 9202100181
SECTION: EDITORIAL PAGE: A-10 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
QUESTIONS OF REASONABLE DOUBT
GOV. WILDER is no longer a presidential candidate. He cannot succeed himself as governor. True, sometime in the future, he again may be a candidate for public office - for the U.S. Senate, or the presidency or vice presidency.But, for once, let's look at a decision he has made regarding the death penalty without cynically assigning political motives - as has been done ever since Wilder, once a staunch foe of capital punishment, first ran for statewide office as a death-penalty supporter. And for once, let's not argue the morality of the death penalty. (We think it's wrong.)
Instead, let's focus on a legal standard - of guilt beyond a reasonable doubt - that sometimes remains an issue after trial and conviction.
Twice now, in the nationally prominent, high-visibility case of Joseph Giarratano last year and in the less-publicized case of Herbert Bassette last month, Wilder halted a scheduled execution because he was persuaded there was reasonable doubt of guilt.
In the Giarratano case, the governor offered conditional clemency. The inmate was not to be executed but he was to stay in prison unless found not guilty in a new trial. Citing constitutional separation of powers, however, Wilder left it to Attorney General Mary Sue Terry to decide if Giarratano would get a new trial - and Terry said no.
In the Bassette case, Wilder commuted the death sentence to life in prison, without chance of parole. The governor's decision was based on new evidence which, because of Virginia's rules of appeal, could not be heard in court. The rules are designed to give finality to court decisions that otherwise might be subject to endless appeals. Already, death-row cases can be dragged out for a decade or more.
But Bassette's conviction, for the murder of a 16-year-old gas-station attendant in 1979, turned on what appeared to be shaky grounds. There were no fingerprints, no innocent eyewitnesses or other unchallenged evidence tying him to the crime. Later, testimony was recanted, and his lawyers discovered evidence that they said pointed to the guilt of another man.
The problem is that a Supreme Court ruling effectively prohibits the introduction of new evidence in a case once 21 days have passed from the judgment. Bassette's lawyers were unable to get a court to consider the new evidence; U. S. District Judge Robert R. Merhige Jr. said his hands were tied by state law. Thus, it fell to Wilder to decide.
After reviewing the evidence old and new, the governor said "I cannot in good conscience erase the presence of a reasonable doubt and fail to . . . intervene."
Wilder's action in the Bassette case, as in Giarratano's, has brought cries of anguish from friends and loved ones of the victims, which is understandable. Also understandable are concerns that the governor circumvented the will of the jury that found Bassette guilty. Indeed, questions remain as to the credibility of the "new" evidence.
The more important question, though, is whether Virginia's governor should be put in a position where he has to make that call. In other states, newly discovered evidence can be introduced and considered by the courts in cases that have reached the appeal stage. Gerald Zerkin, one of Bassette's lawyers, says he knows of no other state where a rule totally bars such evidence from being heard by a court.
It is frightening to think that innocent people might be put to death in Virginia because courts are prohibited from hearing new evidence that might suggest innocence. The General Assembly needs to address this matter, to ensure that won't happen.
"Reasonable doubt" prompted Wilder to spare the lives of Bassette and Giarratano at the last minute. His was the correct decision in both cases (although, strangely, doubt about their guilt wasn't enough to warrant new trials). Not to have spared life, in the face of reasonable doubt, would have been horrible.
Still, it must be remembered that in five previous death-penalty cases, the governor refused to intervene. The different outcomes underscore that capital punishment is an insane roulette game. The 11th-hour appeals process, in particular, is a crapshoot in which some win, some lose, some live, some die. Who can say, without doubt, that this is reasonable?