August 13, 2003 News & Features » Cover Story


An Expendable Man 

The last days on death row of Earl Washington Jr.

Already, telephones were ringing from Virginia to New York to Georgia. In the late afternoon, after Gilmore cemented his decision, counsel Walter Felton made courtesy calls to several members of Washington’s team. In each conversation, one question was paramount. Ecstatic as the advocates were to finally have a pardon in hand, they had believed for weeks that the new DNA tests cleared their client. Now they wanted to know, was Gilmore going to set Washington free?

The answer was no. Washington was still serving time for the Hazel Weeks assault. It would be up to the state parole board to act in its normal course of business on a release.

Richmond lawyer Jerry Zerkin, part of the five-member team that had worked for years to free Washington, was out when Felton called. His wife, Julie McConnell, answered the telephone. Gilmore’s counsel knew McConnell from her work with the American Civil Liberties Union, and he could hear the letdown in her voice. For others as well, the disappointment was keen. Once again, an excruciating wait had ended with a tarnished victory. Washington was getting his pardon, but there was no apology from Gilmore. And because of the 30-year sentence in the Hazel Weeks case, the prisoner was not even being released. The way Washington’s lawyers figured, under prevailing parole practices, their client would have left prison as much as a decade earlier had it not been for the death sentence. No one, it seemed, could go the extra mile of admitting that a terrible injustice had been done.

Gilmore’s 10-paragraph pardon statement began with an account of Washington’s “brutally beating” Hazel Weeks and ended with an apology to the family of Rebecca Williams. “I am deeply sympathetic to the pain and anguish already suffered by the family and friends of Rebecca Williams, and I regret any reliving of that pain these events may cause,” Gilmore said. As for Washington, DNA tests on both the blue blanket seminal stains and a vaginal smear excluded him. “In my judgment, a jury afforded the benefit of the DNA evidence and analysis available to me today would have reached a different conclusion regarding the guilt of Earl Washington,” Gilmore said. Period. There was no message of concern or regret about the 17 years and four months that Washington had served under sentence of death or life in prison. If anything, the statement took pains to breathe life into any lingering doubts about Washington. “It is important for the public to understand that absence of DNA evidence does not necessarily mean an individual is absent from the crime scene — just that he has not left any DNA markers,” Gilmore said. There was no mention of how convoluted, unlikely, or far-fetched the scenarios would have to be for Washington still to be involved. The governor concluded by saying that he was directing the state police to reopen their investigation into Rebecca Williams’s murder.

Barry Weinstein, another member of Washington’s team, was at home in Georgia when Robert Hall, a third member, telephoned with the news: “Gilmore pardoned Earl.”

“How about Weeks?”

“Just as we thought. He passed it on to the parole board.”

Weinstein refused to let that setback temper his delight in conveying the long-awaited news to Washington. The attorney telephoned the watch commander at Keen Mountain, then waited for a reply. Some minutes later, the telephone rang. It was Washington.

“I’ve got good news. I’ve got bad news,” Weinstein told him. “The good news is that you were exonerated. Governor Gilmore granted you a pardon.”

From the silence at the other end of the line, Weinstein knew that Washington needed further explanation.

“It means that you didn’t do it,” he said.

There was another pause as Weinstein imagined Washington digesting the news and his face slowly expanding in a grin. The reply, when it came, was matter-of-fact. “That’s what I’ve been telling everybody all along,” he said.

Now came the more sobering part. Weinstein explained that Gilmore would not reconsider the Weeks sentence. The matter would go before the parole board, and Washington would remain in prison at least until their decision. The lawyer promised that the team would move as quickly as possible to get the matter resolved. He urged Washington to stay calm and be patient a while longer. “Hang on,” Weinstein said.

“How do you feel?” he added as he prepared to say goodbye.

“I feel great,” replied Washington.

For others, the victory remained bittersweet. Gilmore’s pardon of Washington was perhaps the most affirming event in all the exhausting days and sleepless nights that team-member Marie Deans had devoted to the death penalty abolitionist cause. But her primary responses were anger and fear. Watching the announcement on the 11 p.m. news in her Charlottesville townhouse, her agitation grew.

“I was so angry I couldn’t sleep,” she said. “Gilmore never said, ‘The man is innocent,’ or ‘Geez, we’re sorry.’ Nothing. I was very, very concerned that they were going to find some way to keep him in prison. I felt it very strongly, Barry too.”

Hofstra law professor Eric Freedman, the final team member, echoed the sentiment. “They were so grudging and negative about the whole thing that nobody could breathe easy until he walks out the door. Who knew what setups, problems there could be in prison?”

In the aftermath of the announcement, two matters needed sorting out. One was Washington’s parole status. How long would it be before he was eligible for release? The team immediately set about getting clarification. The second was the reopened police investigation into who raped and murdered Rebecca Williams. In the flurry of excitement about the pardon, scant attention was paid to the details of the DNA test results. But from a crime detective’s perspective, they were fascinating. The critical fact for Earl Washington was that two DNA samples were extracted — one from the blanket, one from a vaginal swab — and neither was his. But the results threw the crime itself into a puzzling new realm. The surprising fact was that the DNA samples came from not one individual, as had long been supposed, but two. Equally startling, one of the two samples, the DNA on the blue blanket, matched the genetic makeup of a man serving time in a Virginia prison for rape. Citing the renewed police investigation, Gilmore refused to identify the man publicly. The DNA on the vaginal swab did not produce a match when it was compared with the samples of 125,000 felons in the state’s DNA data bank.

Logically, semen found on the body of a victim following a rape would be assumed to belong to the rapist; but logically also, if the DNA of a known rapist was found at the scene of a rape, it could be assumed to be the perpetrator’s. Which was correct? Were two people, neither of them Washington, involved after all? And how did the new information fit with Rebecca Williams’ dying statement that she was attacked by a single man? One of the reasons Gilmore delayed so long in announcing the results was that he was trying to get answers from the state police.

The uncertainty, coupled with Gilmore’s equivocation in the pardon announcement, allowed Culpeper officials to intimate that they had the right man all along. By their new theory, there were two guilty parties, one of them Washington, one of them the unidentified blue-blanket rapist. The semen found on Williams’s body was taken to be the result of consensual sex. It was of no matter that not a single piece of evidence or testimony in the public realm supported the revised scenario.

Nonetheless, Culpeper Commonwealth’s Attorney Gary Close was keeping Washington clearly in his focus. “It may be that the case was already solved,” he told the Washington Post two days after the pardon. “There’s a huge difference between innocent and pardoned.”

There also was a major difference between pardoned and free.

Contacted at Keen Mountain the day after Gilmore’s announcement, Earl Washington had little but praise for the man who pardoned him. “I feel great,” he told a Richmond Times-Dispatch reporter. “I look forward to living in Virginia Beach. … I’d like to see my family and my niece. Then, I gotta get me a job.” As for Gilmore, “the only thing I’d like to say to Mr. Gilmore is I thank him for doing the tests. He did a good job. The test proves I was innocent.”

His attorneys were less grateful. Speaking to the Washington Post, Robert Hall called Gilmore’s decision “gutless” and argued that Washington’s prison sentence in the Weeks case should have been reduced to time served. Eric Freedman was equally incensed. “It’s an act of political cowardice and bureaucratic buck passing that compounds the original injustice,” the New Yorker said. “No one doubts that Mr. Washington would have been released six or seven years ago on the non-capital charge, which is the governor’s excuse for continuing to hold him.”

Meanwhile, the family of Rebecca Williams greeted the news of Washington’s pardon with confusion. “Now we’ve got this hell to go through all over again,” lamented Helen Richards, Rebecca Williams’ mother.

On Oct. 3, the day after Washington was pardoned, corrections department officials promised to recalculate the prisoner’s parole eligibility as if he had earned good-time points during his years on death row and at full, rather than half credit, while under a life sentence. That was only fair, everyone agreed. A recalculation might mean that Washington was already eligible for mandatory parole, which occurs in Virginia when a prisoner has served all but six months of a sentence, minus good time.

Regardless of what the department set as Washington’s mandatory release date, however, there was strong evidence that he would have been freed years earlier except for the capital conviction. In the 1980s and early 1990s few first-time offenders with a clean prison record — like Washington — were reaching their mandatory parole dates in prison, much less completing their full sentences. With good-time points, some offenders were actually serving as little as one-sixth of their sentences.

Washington likely would have come up for his first parole hearing in 1988 or 1989 and probably would have been given parole a few years later, according to Richard Kern, the Virginia government’s leading authority on sentencing and parole practices. When those statutes underwent an extensive tightening in 1994, Kern directed the commission that oversaw the work.

The commission’s final report highlighted how unusual it was for Washington to have served 17 years and four months for the dual crimes of malicious wounding and breaking and entering. According to the report, first-degree murderers released in 1993, a typical pre-reform year, served an average of 10.3 years out of an average sentence of 35.2 years. Individuals convicted of murder in the second degree served an average of 5.7 years out of average sentences of 16.7 years. As for Washington’s two crimes, the average sentence for malicious wounding was 8.3 years and the average time served 2.8 years; the average sentence for breaking and entering was 6.8 years, with 2.2 served. In other words, the average time served for Washington’s crimes was five years. He was in prison longer than the average first-degree murderer.

Questioned the day after Gilmore’s pardon, Kern calculated that — even without discretionary parole — Washington probably would have reached his mandatory parole date in the Weeks case the previous year. By that assessment, the prisoner should already be free. When the corrections department released its calculation two days after the pardon, its judgment was tougher. According to the department, Washington had a mandatory parole date of Feb. 12, 2001, four months away. The parole board could grant discretionary parole earlier, if it chose.

The delay was a red flag to Washington’s advocates. They feared that some minor infraction, possibly a trumped-up one, would be found to keep Washington behind bars indefinitely. Throughout October and November, as the parole board prepared to evaluate Washington’s bid for discretionary parole, his attorneys approached each step with near paranoia. When the board wanted an examiner to interview the prisoner, a routine step in such cases, the team delayed out of fear that the review was a ploy to stall Washington’s release. Eventually, the team consented, but not without apprehension.

Shortly before Washington was pardoned, Walter Felton had telephoned the parole board chairman, James Jenkins, to advise him that a decision in the Hazel Weeks case was likely to be coming the parole board’s way soon. Aware that the Washington decision would be high-profile, the Richmond attorney studied the case file. He needed to be able to address press inquiries about the matter, and he wanted to know the details of the Weeks case.

Among the documents Jenkins saw was the pre-sentence report in which Deputy D.A. Zeets described the night of Washington’s arrest. Over the next several weeks, Jenkins, quoting from that report, would tell various reporters that Weeks had been found naked and bleeding. The scarcely veiled insinuation was that there had been an attempted rape. But Jenkins never saw the transcript of the preliminary hearing, held immediately after the break-in and 10 months prior to the pre-sentence report. At that hearing, in direct contradiction to his later statement, Zeets said that Weeks was already being tended to when he arrived at the house. He said nothing about her having been naked. Nor did anyone else. Jenkins did not read Weeks’ testimony that she never removed her gown.

Advised later of the discrepancy, Jenkins said it did not alter his view that Washington did not deserve early parole. He was concerned both that Washington hit Weeks forcefully enough to break a chair and that he later shot his brother in the foot. Both Earl and Robert Washington termed the shooting an accident, and the charges were dropped, but to Jenkins’ mind, Washington stole a gun to shoot his brother and shot him deliberately.

The team was incensed the following year when the Virginia parole board released two killers who had served only a few more years than Washington. One man served 22 years after hiring a hit man to kill two people; the other served 26 for murdering a Navy enlisted man. “If you hit someone with a chair, you can get almost 18 years,” fumed Hall. “If you kill two people, it nets you only four more.”

A typical prisoner coming before the parole board as it was constituted in 2000 could not expect leniency, however, particularly if the offense was a violent one.

The parole board did not think it was part of its mission to make amends to Washington for the years he had erroneously spent on death row. In the board’s view, that responsibility — if there was any—belonged to the governor and the Legislature. They decided to assess the Weeks conviction in isolation from any other events in Washington’s life. And by that standard, the board decreed three days before Christmas 2000, Washington ought to be held until his mandatory release date on Feb. 12. The decision, Jenkins acknowledged, would have been more difficult if the release date had not been just six weeks away.

Once again, Washington’s attorneys could do nothing more than fume about injustice. Given his status as a first-time offender with a clean prison record, Washington might well be in a category of one as a Virginia prisoner who had served so long for a malicious wounding in which there was no permanent physical injury. Surely, at some level, he deserved dispensation for coming within nine days of execution and erroneously spending nine-and-a-half years on death row. But no one official was willing to put all the pieces together and address them as a whole. Eric Freedman expressed his frustration: “The real culprit here is Governor Gilmore who tried to take the politically convenient way out by relegating Mr. Washington to the bureaucratic labyrinth rather than standing up to the plate and granting him his long overdue release.”

By now, there was an almost rote quality to the defense team’s outrage. Compared with more than 900 weeks behind bars, what were six more? The state’s position was established. It would free Washington, but with no apology, compensation, self-reproach, or a nod toward his humanity. Through his assault of Hazel Weeks, Washington had determined his own fate. Those were the unspoken terms of his release. Given the fact that nothing had compelled Gilmore to order the DNA tests or to honor their results, in the state’s view the prisoner should be grateful.

He was. On a calendar attached to his cell wall at the Greensville Correctional Center in Jarratt, Va., where he had been moved to await the release, Washington charted the days to freedom. “I mark off every night before I go to bed,” he said. “Next morning, I go back and recount.” With 19 days remaining, Washington said he was just beginning to contemplate life outside prison. “I just ain’t ready to think about it. I’ll think about it the last five days,” Washington said. His goal for the remaining time was to steer clear of trouble. “I can sleep for them 19 days,” he said, before pausing to recalculate. “Sleep for 18 days. The 19th day, I’ll be gone.”

As Washington’s release approached, Virginia officials made clear that he was not to become a national poster-child for the death penalty abolitionist movement, at least not on their time. When permission was requested for Washington to attend a press conference in Washington, D.C., with Virginia Rep. Bobby Scott and other supporters of the Innocence Protection Act on the day of the release, the corrections department nixed the idea. Washington might have a pardon in the rape-murder of Rebecca Williams, but in the matter of Hazel Weeks, he was just another prisoner going out on supervised parole. The state would set the terms of his comings and goings as long as he was under its control, and for now, the only place he was going to was Virginia Beach. Supervised parole would last three years.

In other ways, Washington was not to be treated as a typical prisoner, however. The usual routine was for a paroled offender to walk out of prison into the arms of waiting relatives or to be escorted to the nearest bus station. No such emotional reunion would take place outside the Greensville Correctional Center on the morning of Feb.12. Corrections officials knew that a contingent of reporters and television cameras would be waiting, along with the defense team and various antideath penalty activists, to record the moment of Washington’s prison exit. The media circus, as far as prison officials were concerned, would have to find another backdrop.

At about 6:45 a.m. on that Monday morning, with a light sleet falling and only a hint of gray lightening the night sky, a corrections department vehicle bearing Washington sped out of a back prison gate and headed for Virginia Beach. Freedman and a handful of reporters stationed at the front gate were unaware of the departure. By the time it became clear an hour or so later that Washington was gone, Freedman could do little more than lament the subterfuge and head for an early-afternoon press conference scheduled in Virginia Beach. “All I’ve ever wanted in this case is to see him come out of the prison gates,” complained Freedman, who would have to wait a few more hours for his first face-to-face meeting with the man whose freedom he had pursued for 15 years.

Other members of the team were assembling for the event as well. Robert Hall, who awakened at 4 a.m. for a radio talk show interview, was heading down from Northern Virginia with his wife, Sally. Barry Scheck and Peter Neufeld had flown in from New York. Gerald Zerkin, like Freedman, went first to Jarratt and then rerouted to Virginia Beach. Barry Weinstein had been up from Georgia, overseeing arrangements, for a couple of days. Marie Deans, now employed as a mitigation specialist exploring the backgrounds of prisoners accused of capital crimes, left her home in Charlottesville early in the morning with Henry Heller, founder of Virginians for Alternatives to the Death Penalty. Rep. Bobby Scott, blocked in his plans to bring Washington to the Capitol, was on his way to Virginia Beach as well.

Shortly after 9 a.m., Washington and his escorts walked into Kay Mirick’s office at Support Services Inc. There were hugs and shouts of glee as Deans and Weinstein for the first time in their long association saw Washington outside prison walls and with his hands unchained. What Mirick remembered most from that freezing-cold morning, when others were wearing parkas and sweaters, was Washington’s attire. He was dressed in a short-sleeved cotton shirt and work pants. He had a $25 check from the Department of Corrections in his pocket, but he had no hat, no coat, no gloves. “He looked startled, like a deer caught in the headlights, like he was walking through a cloud,” she said.

A few hours later, the group pulled up in front of the building where reporters and cameras were waiting to record Washington’s reaction to his first hours of freedom. Sitting in the car’s front seat, now dressed in polo shirt and a secondhand parka, Washington saw the sea of faces and he turned to Deans and Weinstein in panic. Already, Henry Heller was holding the door for him to get out of the car, but Washington seemed frozen. Taking in the scene, Marie put her head close to his and spoke softly. “You know how I am about press conferences,” she said. “They make me really nervous. You can’t make me go in there by myself.” Drawing in a deep breath, Washington took hold of her hand, and together they faced the crowd.

For Earl Washington, the days that followed were a waking dream of delights and freedoms unimagined in almost two decades behind bars. In some ways, the comforts of this new life, with its furnished apartment, regular meals and clothes donated by well-wishers exceeded any he had known. He ventured onto the beach. He discovered Chinese and Mexican food. He awoke at 4 a.m. and went outside to smoke a cigarette in the rain. He welcomed two sisters, two nieces, a brother and assorted other relatives who rented a van and drove to Virginia Beach for a reunion. He began attending a church in Norfolk with a woman whose name he could not remember, but who picked him up every Sunday without fail. “I’m the only black person in the whole church,” he confided, marveling at the warmth of his welcome. “People there are real nice,” he said. “That’s something I’ve got to deal with, people being nice.” He made friends at Support Services Inc., including Mark Carpenter, a staff member who became his work partner. Together, they painted and did plumbing and electrical work on the various houses and apartments owned by the facility. He formed a bond with Carpenter’s young son, and he earned his colleague’s praise. “He’s one of the most pleasant people I’ve ever worked with, and efficient,” said Carpenter. “Earl would be welcome to come live in my house any time if he needed to, and I know he’d do the same for me.” He allowed himself to contemplate the future that had seemed so hazy a few months earlier from a cell at the Greensville Correctional Center. “I’d like to marry, settle down, have a family before I get too old,” he said. Slowly, some of the wariness and watchfulness ebbed, both for Washington and for those who had worked so long to bring him to that point.

All the Support Services Inc. apartments had a name, and Washington’s was called “Hope.” It was what had kept him going for 18 years. Now, it was the emotion enveloping him and many others as he embarked on the perilous walk of freedom. S

Excerpted and adapted from “An Expendable Man: The Near-Execution of Earl Washington,” by Margaret Edds, published July 2003 by New York University Press. Edds will be signing her book at Book People in Richmond on Sept. 7 from 3 p.m. to 5 p.m. and at the Library of Virginia at noon on Oct. 29.


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