When a Prosecutor Tries to Knowingly Send an Innocent Man to His Death, It's Nice to Play a Small Role in Enforcing the Law

See quote from my old reporting below:

Former prosecutor said to lie about confession
BY FRANK GREEN, Media General News Service, Wednesday, December 13, 2006

Days after DNA testing first cast doubt on Earl Washington Jr.’s guilt, his lawyers say the man who prosecuted him lied to authorities to try to preserve Washington’s death sentence.

They claim that in 1993, former Culpeper Commonwealth’s Attorney John C. Bennett falsely said he witnessed Washington confess to the 1982 murder of Rebecca Lynn Williams in Culpeper.

Bennett, now in private practice, has denied under oath doing so. But there is contrary evidence from Virginia Deputy Attorney General John H. McLees Jr., who testified about Bennett in April in a federal suit filed by Washington for his wrongful prosecution.

In May, after Washington won a $2.25 million jury verdict in the case, his lawyers said they were considering taking action against Bennett.

They argued that Bennett’s alleged attempt to rescue a death sentence slipping away because of DNA testing was even more egregious than the fabrication of evidence by police that wrongly sent Washington to death row in the first place.

The official transcript of that trial, with the testimony of McLees and Bennett, was filed in federal court in Charlottesville Dec. 1.

Peter Neufeld, one of Washington’s lawyers, suggested to Bennett during the trial that his actions could cause him to lose his license or face other discipline from the Virginia State Bar. But Thursday, Neufeld would not comment when asked if a complaint had been filed against Bennett.

Officials with the Virginia State Bar, which disciplines lawyers, said that if there is a complaint against Bennett, it has not or did not reach a stage where it could be made public. Complaints are to be kept confidential even by those who file them, they said.

Neufeld’s April cross-examination of Bennett referred to an Oct. 26, 1993, phone call between Bennett and McLees. Washington had lost a key appeal a month earlier and a new execution date was soon expected to be set.

But media across the state that day were reporting that Virginia Attorney General Stephen D. Rosenthal had announced DNA testing results that the state’s laboratory said cast substantial doubt on Washington’s guilt.

Washington’s fate would soon be decided by Gov. L. Douglas Wilder, and a critical issue to be resolved was how a man that DNA suggested was innocent could have known details of the crime that only the police and the killer knew.

Washington’s lawyers had long contended that police fed or suggested to Washington the crime details in his confession.

But Bennett’s alleged Oct. 26 claim to McLees that he witnessed the confession contradicted Washington’s claims against the police.

Had Bennett actually witnessed Washington’s confession, he might not have been able to prosecute Washington, he conceded in testimony in April. This was because he could have been called as a witness in Washington’s capital-murder trial.

Washington’s confession was later found to be false. In May, the federal jury that awarded him $2.25 million ruled that a police investigator, to buttress Washington’s confession, fed him details of the June 4, 1982, rape and murder of Williams.

At the end of Washington’s 1984 capital-murder trial, in which Bennett was the prosecutor, Bennett argued to the jury that Washington’s confession included facts about the crime that only the killer could have known. Washington was convicted and sentenced to death.

Two days after Bennett called McLees in 1993, McLees wrote a memorandum about it. He noted that after fully briefing Bennett on the DNA testing, “his most interesting comment was that there was no doubt whatsoever in his mind about Washington’s guilt.”

According to McLees, Bennett said that, “although he never told anyone for fear of becoming a witness in the case, he was present . . . when Washington confessed.”

“Bennett said it was as clear as could be from Washington’s demeanor, body language, tone of voice, etc., that he was getting an enormous load off his mind by confessing,” McLees wrote.

In April, McLees testified at the trial of Washington’s lawsuit that while he had no independent recollection of the conversation, “I’m confident [Bennett] said exactly what was in this memorandum.”

Bennett did not respond to a letter from The Times-Dispatch requesting comment for this article.

He said through a woman answering his office phone last week that “he’s not in a position to discuss the case.” He has not responded to requests for comment about the Washington case in years past. Bennett, who has a private practice in Culpeper, was commonwealth’s attorney through 1991.

However, when Bennett testified in April, he said he had not witnessed the confession and that he never told McLees that he had.

Bennett could not recall a conversation with McLees but said he told someone at the attorney general’s office that a jailer told him that Washington looked nervous and agitated before he confessed and that afterward he looked relaxed.

“I don’t mean to criticize anyone, but . . . [McLees] has got the details jumbled up,” Bennett testified.

Bennett said he probably saw Washington in the interrogation room with investigators, “but when they actually started to ask him questions, I walked away . . . and made sure I wasn’t seeing or hearing because I didn’t want to be a witness in the case.”

Bennett also testified that he did not tell a reporter that he witnessed the confession.

A June 2000 article in the Culpeper News, written by reporter David Swanson, quoted Bennett as saying he was sure of Washington’s guilt: “based on everything I’ve learned in this case, including watching Earl Washington confess.”

While Bennett was on the witness stand in April, Neufeld asked, “Would you have a sense that if an attorney lied to a deputy attorney general while a delicate decision is being made about whether someone should live or someone should be executed . . . that it would be the kind of offense that the bar would suspend somebody for?”

Bennett responded that he was not sure, but added, “Let me just say emphatically that, personally, no, an attorney should not do anything like that.”

Nevertheless, in an opinion in August, U.S. District Judge Norman K. Moon, noted that Bennett’s credibility on other issues may have been undermined had the jury believed “evidence that he had previously lied about having witnessed Washington’s confession.”

Frank Green is a staff writer at the Richmond Times-Dispatch.

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