THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: SUNDAY, June 26, 1994 TAG: 9406270036
SECTION: FRONT PAGE: A15 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: 940626 LENGTH: Medium
Washington, 34, was granted conditional clemency Jan. 14. His first possible parole hearing is scheduled for Nov. 29, 2004.
{REST} Described in court papers as a farmhand with an IQ of 69, Washington confessed to the June 1982 rape and murder of 19-year-old Rebecca Williams. Police said she was stabbed 38 times in her Culpeper apartment while her two young children watched. A jury sentenced him to death in 1984.
Police first focused on another man, James Pendleton, but never built a case. Then, a year after the murder, Washington confessed after an unrelated arrest. His capital murder charge was based largely on the confession and his statement that a bloody shirt found at the scene belonged to him.
But there was other evidence the jury never heard:
Confessions. Before he confessed to Williams' murder, Washington also confessed to three other rapes, all of which he did not commit.
More importantly, there were questions about the murder confession itself. In a 1991 federal appeals court decision, a three-judge panel said the confession resulting from a two-day interrogation contained ``numerous factual errors,'' including the victim's race, her injury and the location of her apartment. The judges noted Washington was ``easily led'' by police.
The judges called the evidence filled with ``difficulties for any fair-minded jury,'' but they still denied the appeal.
Impeachment witnesses. Before Washington's arrest, newspaper reports showed two police composite drawings of a black man seen standing outside Williams' apartment the morning of the murder.
Yet prosecutors never subpoenaed the people who gave police the information for the composite drawings, ``which suggested that when the police showed them photos of Earl, they said, `That's not him,' or `I can't be sure,' '' said Robert T. Hall, Washington's appeals lawyer.
After the conviction, Hall asked for the witnesses' names and statements, but prosecutors didn't comply.
DNA evidence. This was the reason for Washington's clemency. After losing the 1991 appeal, Washington's lawyers were told by then-Attorney General Stephen Rosenthal that his office would insist on DNA tests as part of any clemency plea. The tests, conducted last year, showed that semen left on a blanket contained a genetic trait not found in Washington, Williams or her husband. The dying victim told police she had been attacked by a lone black man. So scientists concluded Washington could be eliminated as a suspect.
Wilder called the DNA tests compelling, but he said he believed a new jury still would give Washington's confession substantial weight.
Yet even before this, DNA evidence was available that could have exonerated Washington. In 1991, the federal judges noted Washington's blood type did not match that found on the blanket. Prosecutor John Bennett knew this and knew that Pendleton's blood type did match, Hall said.
But Washington confessed, Hall said. Bennett declined comment.
``Why was Earl charged?'' Hall asked. ``The case was 11 months old, and in comes Earl who gives four confessions. They use the fourth, the best.''
Later, state officials tried to claim that vaginal fluid tainted the earlier DNA results. But federal judges didn't buy it. ``Pendleton was the original suspect,'' they wrote. ``Why he was not prosecuted is not disclosed. . . . What is significant is that when Pendleton was the suspect there was no talk about vaginal fluid masking the semen analysis. Everything was clear.''
This could have exonerated Washington but for one complication: Before the trial, prosecutors handed the raw data, but no analysis of that data, over to Washington's lawyers. Unable to interpret the results, the lawyers missed the point entirely during the trial.
It was a legal point that still sparks debate. State and federal courts ruled prosecutors had no duty to interpret disclosed forensic data. And when new tests were conducted in 1993, these results could not be introduced since more than 21 days had elapsed.
Washington's last chance lay with Wilder, who gave him a one-sided offer: Take life in jail or reject the offer, hoping someday to get a new trial.
Washington chose the sure thing.
{KEYWORDS} DEATH ROW VIRGINIA
by CNB