THE VIRGINIAN-PILOT
                 Copyright (c) 1994, Landmark Communications, Inc.

DATE: MONDAY, June 27, 1994                    TAG: 9406270082 
DATELINE: 940627                                 LENGTH: Medium 


{LEAD} On the day of his execution in October 1990, Wilbert Lee Evans stuffed into his pocket a copy of a U.S. Supreme Court justice's plea to spare his life, said goodbye to his lawyers and walked to the death chamber.

The execution became known as one of Virginia's worst. When the first 55-second jolt of electricity hit Evans, blood flowed from under the leather death mask, streamed down his chin and soaked his shirt. Bloody froth bubbled on his lower lip. Officials said the chair worked fine - Evans just had a nosebleed when he lunged against the mask.

{REST} Perhaps the opinion by Justice Thurgood Marshall gave Evans some solace. Calling the impending execution ``dead wrong,'' Marshall said the case showed the fallacy of the Supreme Court's premise ``that given sufficient procedural safeguards, the death penalty may be administered fairly and reliably.''

On his copy, Evans wrote: ``Please bury this with me.''

Jonathan Shapiro, Evans' appeals lawyer, still has problems talking about the case. ``How could our justice system allow this to happen? I wondered, for a while, whether I would leave the law.''

There was no doubt that Evans killed an Alexandria sheriff's deputy during a 1981 escape attempt. Evans called it an accident. The jury called it murder.

Yet the jury didn't know that the prosecution took an illegal turn. During sentencing, Alexandria Commonwealth's Attorney John Kloch argued for death, saying Evans posed a menace to society. To prove it, he used records showing that Evans had seven prior convictions, including assault on a police officer.

Based on this, the jury recommended death. But most of those convictions never happened. Documents showed Kloch knew all along.

In 1982, Shapiro learned that three of the ``convictions'' were actually one, because of computer error. The charge of attacking a police officer had been dropped on appeal. Another charge was not admissible because Evans had not been represented by a lawyer.

Thus, only two of the seven ``convictions'' were real. ``Wilbert's criminal record looked two times as bad as it really was,'' said William H. Wright Jr., former staff attorney for the Virginia Capital Representation Resource Center. ``No wonder the jury thought he was a menace.''

Then, Shapiro found a memo from Kloch's assistant - dated two months before trial - explaining the flaws. ``It was the smoking gun,'' Shapiro said.

Shapiro told the attorney general's office and awaited the state's admission of error. He thought Evans' sentence would be dropped to life.

It was not until March 28, 1983 - 10 months after Shapiro first called the records bogus - that the state admitted error. That same day, then-Gov. Charles Robb signed emergency legislation allowing the state to resentence prisoners.

Shapiro challenged the state's right to resentence Evans. Now, in addition to the prosecutor's use of false records, Shapiro accused the state of stalling its admission of error until the new sentencing law took effect.

But in September 1983, a judge ruled that there was no willful misconduct by prosecutors or the attorney general's office.

In February 1984, a new jury resentenced Evans. This time, Kloch introduced evidence not used in the first trial, including charges - never tried - that Evans killed a man in 1978 during an argument over a card game. Once again, the jury sentenced Evans to death.

On May 31, 1984 - fewer than three months later - Evans protected 12 guards and two nurses from a half-dozen knife-wielding inmates during the breakout at Mecklenburg Correctional Center, the largest death row escape in U.S. history.

Several Mecklenburg guards later said they owed their lives to Evans. But the attorney general refused to side with Evans' lawyers, who argued that this showed Evans no longer was a menace to society. His clemency plea went to then-Gov. L. Douglas Wilder.

For Evans, the timing was as bad as it could get. Wilder, who once opposed the death penalty, had campaigned the previous year as a supporter. Also, a national campaign for a retrial for Joe Giarratano, whose execution was scheduled soon after Evans', made it difficult politically for Wilder to consider clemency for Evans, too. Giarratano's defenders included Amnesty International and columnist James J. Kilpatrick. Evans just had his lawyers and family.

In the end, Giarratano got the nod; Evans, the chair.


by CNB