Among the 87 prisoners freed from America's death rows since 1972, four Virginians stand out: Joseph Giarratano, Earl Washington Jr., Herbert Bassette and Joseph Payne. Beginning with Giarratano in 1991 and ending with Payne in 1996, each won release because a Virginia governor examined the evidence for innocence and ruled that reasonable doubts about guilt were compelling.
When the four men left death row, they didn't go far. They were shackled and dispatched to other state prisons where they are caged today. What holds them is Rule 1.1 of the Supreme Court of Virginia - the 21-day rule. Airtight, it decrees that if a capitally convicted prisoner has post-conviction evidence of innocence, bring it to court within 21 days of the sentencing. After that, don't bother. Proof could exist that the accused was in Antarctica playing with penguins on the day of the crime in Virginia. After 21 days, it wouldn't matter. Nor would old evidence discredited by new DNA testing or other improved forensic methods. For Giarratano, Washington, Bassette and Payne, Rule 1.1 means that they will likely die in prison-effectively a death sentence outside death row.
Driven either by conscience or edginess about what this rule says about Virginia justice, some state politicians have been stirring themselves to corrective action. In late February, the House of Delegates voted 73-25 on a bill that would lethally inject the 21-day rule. The 41 Democrats and 32 Republicans supporting the change believed that, finally, Virginia would no longer be the only one of the nation's 38 death penalty states denying appellate relief for possibly innocent people. The effort came to nothing. In mid-March, the state Senate refused to consider the bill, which would have given three years, not three weeks, to offer new evidence for innocence.
While Virginia stagnates, shiftings are seen elsewhere. Preacher-politician Pat Robertson is the latest pro-death penalty conservative to call for a moratorium. He followed Illinois Gov. George Ryan, who could no longer ignore that 13 men have been freed from his state's death row since 1977, one more than the number of men executed. Six other states have called for a timeout, now that the mathematics are in: with 87 men freed and some 630 gassed, injected, electrocuted, hung or shot, it's one out of eight prisoners who escaped death row.
It could be asked about the freed men: Why aren't sentencing judges and prosecutors arrested for attempted homicide? With slim chance of that happening, another question is within range of reasonableness: Why are so few details about the incompetent lawyering and erratic judicial decisions from the bench disclosed to the public and to the people victimized by the wrongful convictions?
The case I'm most familiar with is Joseph Giarratano's. Since 1988, I have been in regular contact with him. I visited him four times on death row, including an interview the day before his scheduled execution in February 1991. Since then, I made a half-dozen more visits. On each, I brought students from my classes at Georgetown Law School, the University of Maryland and Bethesda Chevy Chase High School.
Giarratano, a one-time drug addict who turned his life around on death row by reading law, theology and hilosophy, was allowed by his progressive warden to give seminars on criminal justice to my students. On legal issues, he had credibility. He had written articles for the Yale Law Review and the Los Angeles Times. His legal research led to several successful suits on behalf of fellow prisoners. He was the only person on death row ever to write a brief argued before the Supreme Court - on behalf of Earl Washington Jr., his illiterate cellblock friend.
Giarratano, now 43, was convicted of killing two Norfolk, Va., women in February 1979 in a rooming-house apartment he shared with them. The case presented against him during a four-hour trial was so flimsy - five coerced dissimilar confessions; conflicting autopsy reports; bloody shoe prints in the apartment not matching Giarratano's boots; the stabbing and strangulation of the women were done by a right-handed person, while Giarratano is left-handed - that conservative pro-death penalty newspapers throughout Virginia began calling for a new trial. They were joined by Amnesty International and other groups that examined the case in detail. By February 1991, then Gov. L. Douglas Wilder freed Giarratano from death row.
The day before this life-sparing decision, I asked Giarratano the obvious question: If it's so certain that you have a claim for innocence, why haven't the courts, after 10 years of considering well-crafted appeals, agreed?
He answered: "It isn't that the courts weren't convinced one way or the other, but that they're bound by the procedural rules they created. It's a court rule that if the defense attorney didn't make proper objections during the trial, then the error cannot be raised on appeal. The second procedural rule states that any new evidence must be raised within 21 days of the trial's conclusion, otherwise the review is forever barred. Federal courts must defer to state procedural rules. Because of all this, no court has ever ruled on the merits of my case."
Giarratano currently lives in the Red Onion State Prison in Pound, Va., caged 23 hours a day in an 11-by-8-foot cell in the isolation wing. Red Onion, in rural Southwest Virginia, a seven hour drive from Washington, is a supermax facility where inhumane treatment of prisoners is routine. The Washington Post reported in April 1999 that "in Red Onion's first nine months, shots have been fired (at inmates) 63 times." The paper quoted Ronald Angelone, the state's director of prisons and a champion of supermax pens, on his views about Red Onion: "It's not a nice place. And I designed it not to be a nice place."
The prison has no law library, no meaningful job training program and no significant education classes. Mail is severely restricted. A directive states: "Copies or sections of publications, brochures, newsletters, materials printed off the Internet or other printed materials will no longer be allowed or enclosed in incoming correspondence."
Giarratano is allowed to exercise in a concrete area the size of a dog pen. In a recent letter, he wrote: "I am strip searched each time I leave the cell for recreation. ... I am first handcuffed behind the back, legs shackled, placed on a og leash, escorted by two guards - one holding the leash, the other pressing a laser gun to my ribs - and all under the close watch of a guard pointing a shotgun at me from the gun port."
That should be considered soft treatment. Earlier this year, Giarratano was confined to his cell 24 hours a day, except for three showers a week. His offense? He retained a mustache, a major violation of the department of correction's hair grooming regs.
In a letter May 7, Giarratano described his feelings about life in the supermax prison:
"Generally, I am holding up well under the rigors of supermax segregated confinement, probably better than many. Nevertheless, I know that anyone subjected to this type of ordeal - especially for long durations - does not escape unscathed. I know, in my own experiences here and from past experiences with long-term isolated-segregated lockdowns, i.e., my years on the row, the tremendous amount of mental concentration it requires just to keep one's head above water. There are times, even now, when I'm not so sure of my own grip on reality. The social isolation, greatly restricted environmental and intellectual stimulation, forced idleness, constantly confined to small space day after day, being subjected to a constant denial of one's innate humanity and dignity - constantly being treated like an object and not as a human being - the total lack of personal privacy, the constant light bulb (24 hours a day) and living under the constant threat of officially sanctioned violence will, I suppose, take its toll on anyone. More and more, I find myself having to turn inward just to maintain my balance in this madness; and even then, I must remain on guard for hallucinations, feelings of suffocation, paranoia, fear, and even rage."
In the same letter, Giarratano included an excerpt from a Supreme Court decision involving the sensory-deprivation isolation of inmates in locked-down cells: "A considerable number of prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community."
Giarratano has told me that one of the forces that keeps him from despair, or suicide, is the correspondence he has with supporters who have not forgotten him.
In the spring of 1999, many of them were among the more than 200 friends who gathered at a dinner in Charlottesville, Va., to honor Giarratano's heroic resistance against Virginia's courts and the correction department's efforts to crush his spirit.
The dinner, at a Doubletree Hotel banquet room, was on May l, the same day that the mayor of Charlottesville, Va., in a move that no one could recall ever happening anywhere else involving a prisoner, declared May 1 "Joseph Giarratano Day." The proclamation was meant to honor a man many Virginians - on both sides of the death penalty issue - believe is innocent.
Among those speaking at the diner was retired federal Judge Robert Merhige. He had followed the Giarratano case closely while sitting on the Fourth U.S. Circuit Court of Appeals. In a 15-minute speech, he aligned himself with all those in the audience who continued to work to win Giarratano's freedom. Merhige also condemned the 21-day rule.
I sent the printed program of the dinner to Giarratano. It came back in return mail, undelivered because of the no-printed-material rule. Later, Giarratano wrote to say that the dinner for him, along with the mayor's proclamation, was "a humbling experience for me. I'm told the honor came down to a choice between me and U.S. Supreme Court Justice! That had to be Rehnquist or Scalia-only way they could have decided on me!"
Colman McCarthy is the director of the Center for Teaching Peace in Washington, D.C., and a former Washington Post columnist.