© 2000 The Washington Post Company
A Rush on Va.'s Death Row
- By Brooke A. Masters
- Washington Post Staff Writer
- Friday , April 28, 2000
When a Danville judge sentenced Terry Williams to die in 1986, there were 32 other men on Virginia's death row.
Williams is the only one left.
Virginia has executed 71 people since Williams's sentencing, and he would be dead too, but the U.S. Supreme Court stepped in.
In fact, the Supreme Court has stopped four Virginia executions over the past 12 months. Last week, the justices ruled in favor of Williams and another inmate and heard arguments in a third capital case from Virginia. By contrast, the high court has not taken a death penalty case from Texas, which has 15 times as many inmates on death row, since 1994.
Each Virginia case has raised specific concerns about the way capital punishment is meted out in the Old Dominion. Many judges, lawyers and lawmakers--including some death penalty supporters--argue that this recent trend sends a message: Virginia is going too fast.
"The court is saying it isn't going to tolerate . . . an incorrect and unreasonable interpretation of the Constitution," said Elisabeth Semel, director of the American Bar Association's death penalty representation project, which finds lawyers for death row appeals. "It's a strong statement that Virginia has crossed the boundary."
The argument--asserted recently by some conservatives as well as longtime death penalty opponents--is this: More than any other state, the courts in Virginia have enforced deadlines and procedure so strictly that some inmates never get the chance to show they may be innocent, they don't deserve to die or their lawyers were incompetent.
Concern about unfair trials that put innocent people on death row is mounting nationwide. Illinois has halted executions, Maryland has ordered a study on racial imbalance and a half dozen states are considering a moratorium. As the national clamor increases, Virginia has become a rallying symbol.
This month, Virginia Beach-based Christian broadcaster Pat Robertson and the American Civil Liberties Union of Virginia independently called for a moratorium on capital punishment. And the Virginia House of Delegates for the first time passed a bill to make it easier for death row inmates to bring forward new evidence.
Virginia presided over 14 executions last year, second only to Texas, which had 35. And the average time between sentencing and death in Virginia has dropped 40 percent since 1995, to six years--more than four years faster than the national average.
Virginia officials are proud of that statistic. What some see as rushed, they--and some other death penalty proponents throughout the country--see as efficient justice.
"These cases used to drag on 10 or 15 years, and people forgot about the victims," said Mark A. Miner, spokesman for Gov. James S. Gilmore III (R). "Defendants are not losing any of their appeal rights."
Officials from New Jersey, which has not executed anyone since the death penalty was restored there in 1982, recently met with their Virginia counterparts for guidance. "Virginia is a state we wanted to learn from," said former congressman Dick Zimmer, who chaired Gov. Christine Todd Whitman's death penalty commission.
Virginia officials say the appeals process moves quickly because the commonwealth reserves the death penalty for those who truly deserve it. The Old Dominion sentences fewer people to death per homicide than most states.
"No person is subject to the death penalty in Virginia until all levels of judicial review have been exhausted," state Attorney General Mark L. Earley (R) said in a statement. "The governor has the power to grant or deny clemency after all the appellant reviews, if the circumstances so warrant."
Still, last week's cases and one pending before the 4th U.S. Circuit Court of Appeals highlight some of the key questions that have been raised about the death penalty in Virginia and in the national moratorium debate:
* When underpaid, overworked or incompetent lawyers make mistakes, Virginia's courts- unlike some elsewhere--have refused to give defendants another chance.
* Strictly enforced procedural rules and short deadlines mean many Virginia death row inmates have not gotten hearings about prejudiced jurors or previously hidden evidence that might clear them or change their sentences. Other state and federal appeals courts have been more lenient.
* The Virginia Supreme Court overturns a smaller percentage of death sentences than any other state court, studies show. And the 4th Circuit, considered the most conservative in the country, has been misinterpreting a 1996 federal law in allowing the state's decisions to stand, the high court said last week.
* Virginia has one of the shortest deadlines in the nation for reopening a case, and once it has passed, the state has refused to look at new evidence--or run new forensic tests on old evidence.
"The way we apply the death penalty in Virginia is arbitrary and capricious," said Richmond lawyer William G. Broaddus, a former acting state attorney general who came to oppose capital punishment after representing a death row inmate. "The system doesn't pay any attention to the merits of a [death row prisoner's] claim. It's designed not to."
Testing Attorney Competence
Terry Williams, a shy man with a crooked smile and a sixth-grade education, says he "had an instinct something was wrong" with the lawyers who were appointed to defend him on charges that he killed his neighbor with a gardening mattock and took $3.
Terry Williams Family Picture
Williams had confessed, so the key part of the proceeding turned on whether he should die for the crime. But lead attorney E.L. Motley never returned the phone calls of a respected accountant who had volunteered to serve as a character witness, relying instead on Williams's mother and two neighbors, court records show. Then Motley told the Danville jury in his closing argument that he didn't have "any great, earth-shattering, moving reason" to spare his client's life. The crime, he said, "defies logic."
On appeal, his new attorneys turned up a wealth of new information including juvenile records that detailed horrific abuse and neglect. Two judges found that Williams, who is mildly retarded, deserved a new sentencing hearing.
But the Virginia Supreme Court said his sentence was not "fundamentally unfair," and the 4th Circuit said the 1996 Antiterrorism and Effective Death Penalty Act prevented the federal courts from stepping in.
The U.S. Supreme Court last week ruled that both lower courts were wrong.
That's because the Virginia high court, which never has overturned a death sentence because of bad lawyering, used the wrong standard and set the bar too high, Justice John Paul Stevens wrote for the majority in the 6 to 3 decision. The justices sent Williams's case back for a new sentencing hearing--the first time the high court has ever overturned a death sentence based on incompetent counsel.
"It feels good to be alive," Williams, 44, said.
Motley declined to comment.
The decision gives new hope to inmates in Virginia, where the performance of court-appointed lawyers in capital cases has come under fire from judges, legal groups and academics.
Unlike many states, Virginia has no statewide public defender to represent indigent defendants. For years, the state relied exclusively on court-appointed lawyers and capped fees at the nation's lowest rates. Pay has improved recently, and some counties and cities now have public defenders, but many lawyers remain reluctant to take capital cases because they are so time consuming and complex.
"Out in the hinterlands where there is a low concentration of lawyers, they simply can't find qualified defense attorneys to take these cases," said Richmond lawyer Robert Wagner, who represents a death row inmate whose first attorneys acknowledge they didn't start planning a trial strategy until three days beforehand.
An ACLU study released this month found that lawyers whose clients ended up on Virginia's death row were six times as likely as other lawyers to be disciplined in their careers. One of every 10 defendants sentenced to death in Virginia, including Terry Williams, was represented by a lawyer who would lose his license, the study found.
Motley checked himself into a mental institution shortly after finishing Williams's first appeal, according to court records. In 1989, the Virginia State Bar reprimanded him twice and then indefinitely suspended his law license.
Short Appeals Process, Few New Trials
Terry Williams is not the only inmate at Sussex I State Prison alive today because the high court intervened. In fact, he's not even the only Williams.
Scheduled to die last year for a 1993 rape, robbery and murder, Michael Williams, 32, will get a new hearing based on evidence an investigator uncovered during his federal appeal.
The forewoman of his Cumberland County jury had been married for 17 years to a deputy sheriff who testified against him. The witness and the forewoman had four children together, but neither the juror nor the prosecutor--who drew up the divorce papers--mentioned the relationship.
A federal judge found the allegation so disturbing that he ordered hearings. But the 4th Circuit overruled him, saying Williams had missed his chance under the 1996 law because he failed to raise the issues during his state appeals.
That interpretation put Williams in an impossible position, the U.S. Supreme Court ruled unanimously last week. He didn't raise the juror problem in state court because he didn't know about it. Williams's attorney had asked the Virginia Supreme Court for an investigator but was turned down. Only when lawyers paid for an investigator out of their own pockets did the information surface.
The justices sent the case back so Williams could have the opportunity to show bias.
Williams's case marked the third time in 10 months that the Supreme Court ruled that Virginia death row inmates did not get proper review from lower courts. Over the past four terms, the justices have issued written opinions in 20 death penalty cases--nine from Virginia, and 11 from everywhere else.
The Supreme Court has now granted relief to more Virginia death row inmates in the past year than the 4th Circuit has in two decades.
As that record suggests, the 4th Circuit--which handles federal appeals from Virginia, Maryland and three other states--and the Virginia Supreme Court are more skeptical of death row claims than their counterparts around the country. The state Supreme Court reversed fewer death sentences than any other state court--8 percent, compared with a national average of about 40 percent--according to a soon-to-be-published Columbia University study of 17 years of cases. In Florida about half of all death sentences are reversed by the state courts, and more than one-third of Illinois death row inmates have been given new trials.
The inmates have not fared better in the federal courts. The conservative 4th Circuit has reversed just 6 percent of Virginia cases, compared with a 40 percent reversal rate for all federal appeals courts, the Columbia study found.
"Review is a hollow process. . . . You don't get the feeling that anyone is really agonizing over these cases," said Stephen Bright, of the Southern Center for Human Rights. "Virginia runs so fast because it's slapdash."
Kevin Cardwell contended his death sentence was unfair because his jury should have heard mental health evidence. The state Supreme Court rejected his claim as "mere speculation" because no psychiatrist had ever evaluated him. So then Cardwell's lawyer asked for the money for a psychiatric evaluation. The court turned him down, the 4th Circuit agreed and Cardwell was executed in 1998.
State officials and some academics defend Virginia. They say the U.S. Supreme Court takes Virginia cases to help clarify newer death penalty laws--not because the majority does not like what the commonwealth has done. Officials also point out that almost all Virginia death sentences are upheld, and both Terry and Michael Williams could still face execution.
Virginia defenders also argue that prosecutors choose their cases carefully. State law limits the death penalty to defendants who intended to kill and personally caused death, while some other states have broader statutes. A Cornell University study of 26 states with the death penalty found Virginia imposed fewer death sentences per homicide than all but two others.
"In four years of handling these cases, I never once came across a case where I felt an innocent person had been convicted," said Mark Christie, who reviewed clemency requests for then-Gov. George Allen (R). "What death penalty opponents don't want to admit is that the guy was guilty of a heinous crime."
Rules and Deadlines
In 1994, the U.S. Supreme Court ruled in a South Carolina case that when a prosecutor argues that a defendant should die because he is a danger to society, the defendant has the right to tell the jury if he is ineligible for parole and will never leave prison.
After that ruling, the high court sent several cases back to lower courts and most defendants got new sentencing hearings. Not Bobby Lee Ramdass, who robbed two pizza stores and killed a Fairfax County 7-Eleven clerk during a five-day rampage in 1992.
His lawyers argue that Ramdass, 28, should have been allowed to tell his jury that the two robberies and the one killing added up to no parole under Virginia's three strikes law.
"It's fundamental fairness. If you're going to put me to death because I'm a danger to society, I ought to be able to tell you I won't ever be in society," said Ramdass's lawyer, F. Nash Bilisoly.
But the Virginia Supreme Court said no. Juries had already found Ramdass guilty of the two robberies by the time he was tried for murder. But one of the convictions didn't count because the judge in that case had not yet entered it into the official record, the court said.
"You cannot go back and say the Virginia Supreme Court was wrong," Assistant State Attorney General Katherine P. Baldwin argued to the U.S. Supreme Court last week. "The entry of a judgment is not a trivial matter."
For his part, Bilisoly said he has been so appalled by the way Virginia has handled Ramdass's case that he now opposes the death penalty. "To be so technical on these things? To be second in the nation in executions? That's not the Virginia I know," he said.
Other death row inmates have also found the Virginia courts are sticklers for deadlines, procedure and technical rules.
In 1992, Roger Keith Coleman was strapped into the electric chair, still protesting his innocence. Although the evidence was contradictory, Coleman claimed he had an alibi and that a post-trial DNA test suggested a second person was involved. But the Virginia Supreme Court refused to hear his appeal because his lawyer filed it one day late.
The U.S. Supreme Court upheld that decision, 6 to 3, and five other death row inmates have had their state habeas claims rejected for missing filing deadlines.
Other states have been more lenient. The Alabama Supreme Court, for example, has generally given death row inmates the benefit of the doubt when deadlines are missed. "They always fell on the side of due process, to make sure appeals are heard," said Tony McLain, general counsel to the Alabama State Bar.
The Virginia attorney general's office encourages the courts to rule quickly against inmates on procedural grounds. "They are appropriately aggressive at using the law to the benefit of the commonwealth," said Donald Zelenka, who supervises capital appeals for South Carolina.
But others say Virginia is too single-minded in its pursuit of death. "In other states they have rules, but in Virginia they enforce them ruthlessly," said George Kendall, of the NAACP Legal Defense and Education Fund, "In Virginia, if you're too late, [the courts say:] 'Too bad. Show it to God.' "
Derek Barnabei, on death row for the 1993 rape and murder of his girlfriend, fears no court will hear evidence he claims will clear him.
Barnabei argues that a new DNA test could prove he did not kill Sarah Wisnosky, who was beaten to death and thrown into the Lafayette River. But he has already missed Virginia's 21-day deadline for introducing new evidence, one of the shortest in the country.
Under the "21-day rule," anyone convicted of a crime has three weeks after the judgment to bring forward new evidence. After that, the courts won't look at it unless the defendant can prove that a legal problem prevented him from raising the issue earlier.
Some states, such as North Carolina, have no deadline for new evidence, and other states enforce their rules less strictly. In South Carolina, the deadline is one year after the evidence could or should have been discovered. Last year, the state Supreme Court threw out Sterling Spann's capital conviction after a new profiling expert said the 1981 murder was one in a string of serial killings--including one that occurred while Spann was in jail.
"That never would have happened in Virginia," said David Bruck, a Columbia, S.C., attorney who handles death row appeals.
Barnabei, 33, contends he and Wisnosky had consensual sex, he left, and someone else attacked and killed her. He argues that a bloody fingernail from her body, which was preserved but not tested, will prove it.
Wisnosky, he says, probably scratched her real attacker and another man's DNA will be found beneath her fingernails.
"I'm not an angel, but I am not a murderer," Barnabei said recently. "I left Sarah alive and well."
The attorney general has resisted more testing. "There have been numerous DNA, forensic and evidentiary tests in the Barnabei case," including one that found his semen in Wisnosky's body, said David Botkins, Earley's spokesman. "All prove his guilt."
And Barnabei has not been able to force the state's hand.
Instead, his lawyers spent April 6 arguing to the 4th Circuit that he should get a new trial because his first lawyer failed to introduce medical evidence that suggested Wisnosky may have had consensual sex. Without the rape, Barnabei would not be legally eligible for the death penalty.
The legal rules that put Barnabei's lawyers in a bind have given some judges and a growing number of lawmakers nightmares.
"It worries me terribly that maybe you get evidence a year after you're convicted that you're innocent but under the law it's irrelevant," said retired U.S. District Judge Robert R. Merhige Jr.
Federal lawmakers, too, are growing concerned. Congress is considering bills to require states to preserve biological evidence, make post-conviction DNA testing available and set national standards for lawyers in capital cases.
"There seems to be more desire to protect a conviction than to make sure the right person was convicted," said sponsor Sen. Patrick Leahy (D-Vt.).
Death penalty opponents say they feel the tide may finally be shifting their way after years of complacency. "There's a real sense of momentum," said ACLU Executive Director Kent Willis. "So many people have been working for so long to explain the facts about the death penalty to legislators, judges and the public. Maybe it's finally taking hold."
This year, the Virginia House of Delegates passed a bill that would give death row prisoners three years to bring forth new evidence, rather than 21 days. "If we are going to be executing human beings, we had better damn sure know that we have closed off every door on a person being innocent," said Del. L. Preston Bryant Jr. (R-Lynchburg).
But prosecutors fought the proposal, and the Senate tabled the bill. "You'd never have finality," said Arlington Commonwealth's Attorney Richard E. Trodden. "In the justice system, you decide truth in a designated time and space. If you keep that time and space open . . . we will have successfully undermined our system."
The measure is set to come up in January's legislative session, and Bryant and other backers vow to press their fight.
The Death Penalty in Virginia
INMATES AND EXECUTIONS
California's death row population is 19 times the size of Virginia's. In Texas, it is 15 times larger. But Virginia's 14 executions last year were second only to Texas. The District does not have the death penalty.
Inmates on Death Row, 1994-present
Texas: 459
Virginia: 29
Florida: 368
California: 565
Maryland: 17
Executions, 1994-99
Texas: 35
Virginia: 14
TIME ON DEATH ROW
The time between sentencing and death is much shorter in Virginia than it is for other states. Within Virginia, the length of stay on death row has dropped dramatically since 1995.
Awaiting Execution
Avg. years under
death sentence*
California 8.1
Florida 8.6
Maryland 6.8
Texas 7.1
Virginia 4.0
National 7.4
Virginia Speeds Up Executions
Number executed: 14
Average years from sentence to execution: 6.1
TIMELINE
Here is what generally happens to a defendant convicted of a capital crime in Virginia, from sentencing to execution:
Jury recommends sentence.
Two to three months later, judge imposes sentence.
Inmate has 21 days to ask for a new trial and enter new evidence.
Automatic appeal to Virginia Supreme Court.
If the appeal and a request for a new hearing are denied, the defendant has 90 days to file a petition to the U.S. Supreme Court.
If the Supreme Court rejects it, the defendant has 60 days to go back to state court to file a state habeas corpus appeal.
Habeas corpus appeals begin the second round of appeals for an inmate. They focus on trial flaws, such as bad lawyers or hidden evidence.
If the Virginia Supreme Court rejects the state habeas claim and a request for another hearing, the defendant has a year to file a federal habeas petition. But in Virginia, the attorney general is required to go directly to court to ask for an execution date to be set within 60 days, forcing the defendant to immediately ask for a stay of execution. Once a stay is granted, the federal courts usually give defendants two to six months to file the habeas petition.
Unlike many states, where those appeals go to lower courts, Virginia sends them directly to the state Supreme Court, which can grant it, reject it or order an evidentiary hearing. The Virginia
Supreme Court has not ordered an evidentiary hearing since 1995.
The federal district court may order hearings or discovery on specific issues, and in several recent cases, has ordered a new trial or sentencing hearing. Either side then has 30 days to appeal to the U.S. Court of Appeals for the 4th Circuit.
The 4th Circuit has not approved a new trial or sentencing hearing in a Virginia death penalty case since 1988.
If the 4th Circuit rejects the appeal, the local court is required to set an execution date, usually within 60 days.
The defendant can appeal again to the U.S. Supreme Court and ask the governor for clemency.
The U.S. Supreme Court does not usually act until a few days before the scheduled execution. Traditionally, the governor does not act until after the U.S. Supreme Court, usually only hours before the execution time.
Since September 1998, the U.S. Supreme Court has stopped five Virginia executions at this stage, although two of those stays have since been lifted.
HIGH COURT DEATH PENALTY REVIEW
The U.S. Supreme Court has received hundreds of death penalty appeals but agrees to hear only those cases where at least four justices think a serious error has been made or the case raises issues of national significance.
In the past four terms, the high court has issued written opinions in 20 cases.
Of those, nearly half came from Virginia.
Other cases: 11
Virginia cases: 9
Of these 20 cases, the high court has ruled for the defendant in five cases, including three from Virginia.
One Virginia case is still pending.
SOURCES: Bureau of Justice Statistics, Death Penalty Information Center, Virginia Department of Corrections
© 2000 The Washington Post Company