Earl Washington (short version)

In June of 1982, Rebecca Lynn Williams, 19 and white, was raped and murdered in Culpeper. Eleven months later, a 23-year-old black mentally retarded man from Bealeton, Va., Earl Washington Jr., was arrested for the crime. He was tried for capital murder in Culpeper Circuit Court, found guilty by a jury Jan. 20, 1984, and sentenced to death.

More than a decade later, after numerous appeals in the case were denied, Gov. Douglas Wilder, on his last day in office, commuted the sentence from death to life in prison. Washington has now spent 17 years in prison, and Gov. Gilmore is considering a request made in January, 2000, by a team of lawyers working without pay to help Washington.

This team maintains that Washington’s innocence has already been demonstrated by DNA tests done in 1993 and 1994, evidence which was available to Wilder but not to the jury at the original trial or to appeals courts that reviewed the case.

Washington, who was originally arrested for assault and breaking and entering in Fauquier County, Va., confessed to several other crimes at the same time he confessed to the Williams killing. He pleaded guilty to the assault and breaking and entering charges after his Culpeper trial but was cleared of the other crimes to which he confessed after eye-witness testimony and other evidence showed he could not have committed them.

Washington’s initial responses to police questioning about the Culpeper crime were incorrect on the matter of the victim’s race, height and weight, whether anyone else was in the apartment when the crime was committed, whether he took his clothes off, and how he entered the victim’s apartment. Washington said he kicked the door in, but there was no sign of that. He said he stabbed the victim two or three times. The autopsy found 38 stab wounds. Washington said he cut himself, but his blood was never found at the scene. With repeated questioning, Washington improved his responses to better fit the facts of the case.

Washington’s lawyers say, perhaps with diplomatic generosity, that there is no reason to assume any of the officers questioning their client knew he was retarded and easily led along. But led along he clearly was, they maintain, assenting to police descriptions of the crime and altering his answers when they did not seem to satisfy the police. One of the experts who has ranked Washington’s IQ at 69, Dr. Ruth Luckasson, wrote in a report for Washington’s clemency petition, “All the circumstances surrounding the ‘confession’ indicate that its contents came (intentionally or not) from the police and were simply parroted back by Earl.”

Key pieces of evidence in this case are semen samples from a blanket and from the victim’s vagina. Tests of the blanket stain were found to exclude Washington prior to his trial, but the evidence was not presented in court. DNA tests done in 1994 agree with the early conclusion regarding the blanket.

DNA tests of the vaginal sample performed in 1993 also exclude Washington according to a defense expert. The Virginia Attorney General’s Office maintains that those tests allow for the possibility that Washington raped Williams, as long as there were two rapists or the victim had consensual sex early that morning with someone other than her husband.

But Williams told her husband and the police before she died that there was only one attacker, a black man. There was no mention of a second rapist in the prosecution’s case or in Washington’s confession. And the possibility of consensual sex that morning is problematic as well. Williams had two of her three small children with her at the apartment that morning while her husband was away at work.

At trial, a Culpeper Police officer who responded to the call, Kenneth H. Buraker (he is now Chief Deputy for the Sheriff’s Office), testified, “I asked her if she knew who her attacker was. She replied, no. I asked her then if the attacker was black or white and she replied, black. I then asked her if there was more than one and she replied, no.” Williams’ husband, Clifford Williams, testified, “I asked her, you know, who did it, and the only thing she replied to me was, a black man, and that was about it.”

According to documents provided to Washington’s lawyers, a lot of fingerprints that were never identified were found at the crime scene, but none of them were Washington’s. Hairs in the pocket of a shirt allegedly belonging to the murderer have not been tested and compared with Washington’s. A shoe impression in the floor mat was thought to possibly be the murderer’s, but it was not Washington’s. A composite sketch based on the recollections of witnesses who had seen a black man leaving the building did not match Washington.

At least 11 suspects were considered during the year following the crime. Their names appear on lab reports at the time from the Virginia Bureau of Forensic Science.

Nearly a year after Williams’ murder, on May 21, 1983, Washington, a farm worker with no criminal record, was picked up by Fauquier County deputies. He was accused of breaking into the home of an elderly woman there named Helen Weeks and robbing and raping her on the same day as his arrest.

Fauquier deputies D.A. Zeets, and Terry Schrum, without any known reason to suspect that Washington had tried to rape Weeks, asked him if he had, and he said yes. Weeks testified in a preliminary hearing on June 23, 1983, that Washington had not tried to rape her, and the charge was dropped.

Washington’s lawyers’ petition for executive pardon states, “While in police custody, Mr. Washington ‘confessed’ to five different crimes. In four of the cases, the ‘confession’ proved to be so inconsistent with the crime it purported to describe that it was simply rejected by the Commonwealth as the unreliable product of Mr. Washington’s acquiescence to the officers. In the fifth case – which resulted in the present capital murder conviction and sentence – the statement had to be reshaped through four rehearsal sessions before reaching a form the authorities considered usable.” Police reports documenting this were included with the petition.

After Washington had confessed to four crimes, the Fauquier Sheriff’s Office thought to ask about the crime in Culpeper. On the first go-round Washington denied doing it. He was sent back to his jail cell. Later, he reportedly asked to speak to the deputies again, and they asked him again about the Williams murder. “Earl, did you kill that girl in Culpeper?”

According to the police notes, he sat silently for five seconds, then said yes and shook his head and started crying. Shortly after this, the police notes say, the questioning stopped, “because of the lack of information concerning the Williams murder.” The police did not know Williams had been raped, and Washington did not produce that information.

Eric Freedman, a defense lawyer now working on Washington’s case, said he thought the police acted in good faith. “They had no reason to know he was mentally retarded. Earl is a very kind, nice, gentle guy. He says ‘Yes, Sir,’ to everybody. You can have a long conversation with him in which he seems to understand everything.”

Freedman said that, according to the notes taken by the police, Washington said yes to everything asked him, including a description of raping Weeks. “They asked him ‘Didn’t you do this? Didn’t you do that?’ Eventually Weeks would say that no such thing ever happened. But they didn’t know that yet. So, they started asking him about all the unsolved sexual crimes on their books.”

A leading expert on mental retardation, Ruth Luckasson, professor of special education at the University of New Mexico, has maintained that saying yes is a normal coping mechanism, a way to please and to appear smarter than you are. “When you are less intelligent, Freedman said, “usually the other guy is right and you’re wrong. So you tend to agree with him.”

On May 22, 1983, State Police Special Agent C. Reese Wilmore and Culpeper Police Lt. Lee Hart (now Culpeper County sheriff) went to Fauquier to question Washington about the Williams rape and murder. They would later report that Washington had confessed to them, identified a shirt from the crime scene as his, and identified the location of Williams’ apartment when they drove him through Culpeper. (More on this below.)

Motion hearings were held in November 1983 to try Washington for capital murder in Culpeper. Dr. Arthur Centor of Central State Hospital in Petersburg testified for the commonwealth on a motion to suppress confession on Nov. 2, 1983. Centor reported that Washington had an IQ of 69 and said, “This is at the very upper limits of mild mental retardation. His essential difficulties were in the verbal area, abilities in vocabulary, in information, and in comprehension.”

Trial counsel John Scott Jr., who was hired by Washington’s sister, Alfreda Pendleton, is now a judge. Scott never requested nor retained assistance by a mental health expert to assist him in assessing Washington’s mental disabilty and how it interplays in waiver of Miranda rights, confession and competency. According to Barry Weinstein, one of the lawyers currently working on Washington’s case, this “would have made a world of difference.”

Washington’s current lawyers object to Centor’s analysis. Two experts who examined Washington’s intelligence for the defense during the appeals process, and Luckasson view him as decidedly retarded.

Newspapers and radio stations had been reporting on Washington’s alleged confessions to the Culpeper crime and the apparently similar crime in Fauquier. His lawyers requested the murder trial not be held in Culpeper on the grounds that jurors would be biased against Washington. Nine affidavits from local citizens and a statement from the head of the Culpeper NAACP to the effect that Washington could not get a fair trial in Culpeper were presented in court. Judge Berry denied the request for change of venue. Eleven of the 12 jurors said they had already read about the charges against Washington in Culpeper or Fauquier in the newspapers or heard about them on the radio.

Washington’s trial took place Jan. 18-20, 1984. Scott was appointed to appeal Washington’s conviction. On Nov. 30, 1984, the Virginia Supreme Court affirmed the capital-murder conviction and sentence. On Jan. 18, 1985, that court denied rehearing the case. That same year the U.S. Supreme Court denied review of the case. Washington’s execution was set for Sept. 5, 1985, and he was transferred to the “Death House” at the Virginia State Penitentiary in Richmond (since demolished) awaiting execution.

Marie Deans, of The Virginia Coalition on Jails and Prisons, convinced a New York law firm to take up Washington’s case, working without fee. Freedman was with that firm. Robert Hall was brought in as local counsel. Two lawyers who joined the effort and are still with it are Gerald Zerkin and Weinstein.

Washington’s new lawyers filed a state habeas corpus petition on Aug. 27, 1985, which included a great deal of the original press coverage, along with an expert’s affidavit about how this would influence the jury. On Dec. 23, 1986, the petition was denied without an evidentiary hearing. The lawyers filed a petition for appeal on March 20, 1987, and this was denied Feb. 26, 1988. That same year, the U.S. Supreme Court denied review for the second time.

On July 28, 1988, Washington’s lawyers filed a federal habeas petition, which was denied without an evidentiary hearing on Oct. 25, 1989. The lawyers appealed to the U.S. 4th Circuit Court of Appeals, and argued the case there June 4, 1990. On Dec. 19, 1991, the case was remanded to the U.S. District Court for an evidentiary hearing, which was held April 6, 1992. On July 29, 1992, that court denied the petition.

The evidence in question was the original test which excluded Washington, because of his blood type, as a possible contributor to semen on the blanket. The semen from the vaginal area had not been tested because available technology allegedly could not separate it from blood, skin, etc. The 4th Circuit’s decision remanding the case for an evidentiary hearing stated that the district court could not without this hearing determine that the evidence could not have created a reasonable doubt in the minds of jurors. “The evidence consisted essentially of a confession obtained by interrogation almost a year after the crime, from a mildly retarded person upon whom suspicion had not earlier focussed during the crime’s investigation, and who was not indeed suspected when the critical interrogation which elicited his inculpatory statement was commenced, apparently blindly, while he was in custody in connection with an unrelated crime. The circumstances under which the statements were elicited by police interrogation were such as to raise at least colorable questions of the voluntariness and intelligence with which they were given.

“The only physical evidence corroborating Washington’s elicited statements was a shirt traced in testimony to the crime scene which, according to police, was identified by Washington as his when confronted with it during his interrogation a year later. Though facially damning, the circumstances under which this chain of evidence was put together were not without their own special difficulties for a factfinder. In the first place, Washington’s admission of ownership was an elicited one in the course of the interrogation whose general difficulties for the factfinder have been earlier noted. Furthermore, the testimony as to the circumstances under which the shirt originally came into the possession of the police presented further special problems. Despite an extensive investigative search of the crime scene soon after the crime’s commission, the shirt was not found or, if noticed, was not thought significant by any investigator who did see it. Instead it first came into police possession some six weeks after the crime when the victim’s mother-in-law turned it over to investigators….Negroid hairs were found in the pockets of the shirt….When, upon Washington’s later arrest, defense counsel requested comparison with Washington’s facial hair, the request was declined.”

The court decision found further evidence of poor performance by Scott, but not such as to – in its opinion – make the trial “a fundamentally unfair one. We agree that counsel’s failure to make several points critical to the defense might be thought to constitute professionally deficient performance. For example, counsel failed to bring out the factual inconsistencies between Washington’s inculpatory statements and the facts as proven, Washington’s alibi defense, his sister’s favorable testimony respecting ownership of the shirt, and the lack of any other physical evidence, including fingerprints, linking Washington to the crime scene despite an extensive police investigation soon after the crime.”

Washington’s lawyers’ later petition for executive pardon states, “At the hearing on remand, all the experts agreed that the semen stains on the bedclothes could not have come from Mr. Washington – and the Commonwealth’s scientist revealed for the first time that she had so advised the prosecutor prior to trial.”

When the case returned to the U.S. 4th Circuit Court, it affirmed, 2-1, the District Court’s denial of the petition, finding that the forensic evidence was inconclusive because the semen stains on a blanket, although they could not have been made by Washington and could not have been made by the victimn’s husband alone, could – according to an interpretation of the early testing – have been made by a combination of the husband’s semen and the victim’s skin cells or vaginal fluid.

The 4th Circuit dismissed the district court’s assertion that Scott had made a strategic decision not to introduce the evidence at trial. “Trial counsel testified that he never offered evidence about the forensic analysis of the stains because he was unaware of their potential significance. In fact, he consulted with no experts about the report, and never realized that Washington’s blood type was inconsistent with the seminal fluid on the blanket until Washington’s habeas counsel told him well after the trial.”

Judge Butzner wrote a dissent to the 4th Circuit’s decision denying the habeas petition. “It is now settled,” he wrote, “that the district court erred in holding that Washington’s counsel was competent. I think the district court also erred in holding that counsel’s incompetence did not prejudice Washington because the results of the semen test were inconclusive….[W]hen Pendleton was the suspect there was no talk about vaginal fluid masking the semen analysis. Everything was clear. The type could be identified and it was. [James Pendleton was one of the 11 previous suspects.]

“In short, all went well until Washington turned up with blood type O, PGM 2-1….To mend its own report, the Commonwealth now advances the theory that vaginal fluid masked the stains. But this theory is not based upon scientific evidence.” Later DNA tests would, in fact, prove that the blanket stains were not from Washington, the victim’s husband, or – for that matter – Pendleton.

The defense team anticipated that Washington would be scheduled to be executed in early 1994. On Dec. 20, 1993, they filed their petition for pardon. On Jan 14, 1994, Gov. Wilder commuted Washington’s death sentence to life imprisonment, citing Washington’s confession as reason for not giving him a complete pardon. The reason for the partial pardon lies in DNA testing done in 1993 and 1994.

It was on the basis of Scott’s failure to introduce the lab evidence at the trial, as well as his failure to make use of police notes from the questioning of Washington, that Freedman and his colleagues appealed the case, claiming ineffectual counsel. Scott reportedly said at the time that he did not object to the accusation because “we’re talking about a man’s life, and he deserves every shot he can take.” The Circuit Court agreed Scott’s work was incompetent but said this failure was harmless because of Washington’s confession – this despite the fact that four similar confessions turned out to be bogus and resulted in dismissed charges or no charges at all.

Asked about criticism of his performance, Scott said, “Whatever remedy that was pursued and was offered by the court system should have been pursued and was pursued vigorously and should have been pursued vigorously.” When asked about specific parts of the original trial, Scott said, “It is my understanding that this may be considered again to be an active case. As a member of the judiciary, I can’t comment on an open case.”

By 1993 DNA testing was available, though the technology involved has been evolving rapidly since that time. Wilder knew of the results of two DNA tests when he commuted the sentence. These tests were performed in 1993 and 1994 by Jeffrey Ban at the state forensic laboratories in Richmond directed by Dr. Paul Ferrara. The results were sent from the lab to the governor’s office. The first test was of semen removed from the vaginal area of the victim.

Ban’s report is dated Oct. 25, 1993. The test was performed using the latest technology available, namely a DQ alpha test. It found three alleles: 1.1, 1.2, and 4. An allele is a genetic marker. We each have two of them, and the combination is referred to as a genotype.

Washington has no 1.1, but has 1.2 and 4. Williams and her husband also have no 1.1. They both have 4 and 4. The Attorney General’s Office responded to this with what has been called the unindicted co-ejaculator theory. Some of the semen, this theory contends, could have come from Washington as long as there were two attackers or the victim had consensual sex early that morning with someone other than her husband while her young children were asleep.

Dr. James C. Beyer, who did the autopsy, testified that the sperm was less than 12 hours old as of 2:05 p.m. Williams’ husband worked the night shift, and Williams was seen walking outside with her kids in the morning. The consensual-sex version of the theory would have to maintain that she brought someone into her apartment between about 2 a.m. and when her kids woke up. Freedman agreed, saying, “There is not a scintilla of evidence for it. It is just a desperate attempt by the state to dream up some way to justify having incarcerated and almost executed the wrong person.”

The petition for pardon puts it this way: “To give weight to a theory that would ignore those facts so as to evade the exculpatory force of the DNA evidence would be to undercut the validity of DNA testing in almost all cases, whether the results were favorable to the prosecution or the defense, since it could always be suggested that the adverse results were due to the activities of some mysterious stranger.”

The state had agreed to allow the defense to do its own testing at a lab in Massachusetts, but the sample supplied them was too small to be tested with technologies available (though today such tests can be done on smaller samples).

So, instead, the defense asked Dr. Henry Ehrlich, one of the designers of the DQ Alpha test technology, to interpret the results of the state’s test. Ehrlich’s interpretation was that the 1.1 and 1.2 alleles were paired, and that the 4 was from skin cells of the victim.

The defense team maintains that the second test Wilder knew about was not shared with them. It was a DNA test of semen on the blanket found at the crime scene, and the results were consistent with the original test on the blanket stain. The new test found a 1.1,1.2 genotype, exactly what Ehrlich found in the vaginal-swab test.

Ban’s report to Walter McFarlane, counsel to the governor, was signed Jan. 14, 1994. It states: “Washington is eliminated as the donor of the HLA DQ alpha types obtained from the blue blanket, stains A, B, and C….It is my opinion that the contributor to the sperm fraction of stain D of the blue blanket is an individual possessing a 1.1,1.2 genotype. Based on that opinion, both Earl Washington Jr. and James Pendleton are eliminated as possible suspects.”

Knowing that the DNA test on the blanket had been done, but not knowing its results, the defense team accepted Wilder’s offer of life imprisonment, and in doing so passed up alternatives for appealing the case further through the courts. This decision had to be made in two hours, and the alternative was for Wilder to do nothing to stop Washington’s execution.

“None of us saw the blanket DNA test,” Weinstein said. “I was in Richmond at the time….All five of us were in on the decision….It was Earl’s decision. He was able to understand life and death. Could he understand spending the rest of his life in prison? That’s questionable.”

The defense team continued requesting the test results following Wilder’s commutation, as documented by letters sent by Hall to Walter McFarlane, counsel to Gov. Wilder, and by phone records. They finally learned of the blanket test results after Ferrara gave them to Frontline. Weinstein said he was very surprised and outraged at not having been shown these results earlier, since the defense team “had a very good working relationship with McFarlane.”

Wilder and Ferrara have not returned repeated phone calls. Jeffrey Ban declined to comment on the grounds that the Attorney General’s Office is working on the case. “I did the original DNA tests in 1994,” Ban said. Asked whether other tests have been done more recently, Ban said no and that he could not talk further. The Attorney General’s Office and the Governor’s Office both declined to comment.

“We think Wilder granted clemency instead of a pardon,” Hall said, “because of a fear that Washington might commit some crime while Wilder was running for the U.S. Senate – which he was planning to do.” Hall also said Washington would be free were it not for Virginia’s 21-day Rule, which prohibits the introduction of new evidence more than 21 days after a conviction, the strictest limit in any state.

Freedman said Wilder’s concern was “probably less a fear that Earl would commit a new crime – for which there is no history – than a more general sense that freeing a black convicted of a rape and murder would be bad politics.”

Chief Dep. Buraker said that re-opening Washington’s case is up to the attorney general’s office. “I’m confident law enforcement did its job and he was given due process.”

Lt. Jenkins of the Culpeper Police Department said that any decision to reopen a case has to be made by the commonwealth’s attorney. Commonwealth’s Attorney Gary Close said that there is very little likelihood the case will be reopened, but that such a decision would have to be made by the police department. “I’m convinced the correct person was convicted,” Close said.

When Washington was tried, then-commonwealth’s attorney John Bennett prosecuted the case. Bennett currently practices law in Culpeper. Bennett said, “I don’t think it is appropriate for me to comment on the specifics of this case since I am now in private law practice and the case is being handled by the state attorney general’s office and the commonwealth. I would like to make some general observations.

“I appeared before Gov. Wilder’s chief of staff to oppose any executive clemency….I was told Gov. Wilder took the action out of humanitarian concerns for Washington’s limited intelligence, that it had nothing to do with the question of guilt in the case.”

(However, Wilder’s statement providing a partial pardon does not state that its motivation is that humanitarian concern. Rather, it states, “I am of the opinion that the newly discovered evidence interjects an important element into the case which neither the jury that tried the case nor the courts which have reviewed it since the trial have had the opportunity to consider. Had that opportunity arose [sic], I am of the opinion that their opinions as to the appropriate conclusion may have been different.”)

“Second,” said Bennett, “based on everything I’ve learned in this case, including watching Earl Washington confess, and notwithstanding the questionable conclusions and outright distortions by advocates on behalf of Mr. Washington, Earl Washington committed the crime for which he was properly convicted in Culpeper County.” Asked what the questionable conclusions and outright distortions were, Bennett declined to comment.

“The jury felt,” Bennett continued, “the vileness of his crime, raping and then repeatedly stabbing a young mother in her home while one of her children was at home was itself sufficient to impose the death penalty. I feel certain if the law permitted the jury to hear about Mr. Washington severely beating an elderly lady in her own home in Fauquier County and other criminal involvement, it would have done nothing but reinforce the jury’s decision to recommend the death penalty.” Asked what the other criminal involvement was, Bennett declined to comment.

There are copies of the transcript from this case on file in the Culpeper courthouse. Bennett’s opening statement takes up 10 pages, Scott’s 3. Bennett’s case takes up 162 pages, of which relatively little is cross-examination by Scott. Scott’s case is 27 pages, of which a good portion is cross-examination by Bennett. Another six pages record additional witness-questioning by Bennett. Bennett’s closing argument is nine pages, Scott’s two, after which there are four more from Bennett.

The jury found Washington guilty in less than an hour – although one juror, Debra Holmes, told Frontline that she always knew it was a mistake. The jury stayed out for an hour and a half deciding what sentence to give Washington. Part way through this time, the jurors came back out to ask the judge exactly what “life imprisonment” meant. The judge refused to offer them any help, and Scott had already agreed without argument that he needn’t do so. The jury retired and came back with a death sentence.

Schrum was the first police officer that Bennett put on the stand during the trial. He said “Earl,” as he referred to Washington, volunteered (from his jail cell) to talk to him at 12:40 p.m. on May 21, 1983, and confessed to the crime in Culpeper which occurred a year earlier.

Next on the stand was Hart, followed by Wilmore. Wilmore said Hart and Special Agent Hugh Elwood went to Wilmore’s house to discuss the case on the evening of May 21. The next morning, Wilmore and Hart went to Fauquier and conferred with Schrum and Dep. Dennis Zeets. Wilmore described questioning Washington.

Washington, Wilmore said, admitted to stabbing the woman in Culpeper. But when asked if she was black or white, he said black. Asked again, he switched it to white. Wilmore testified to this in the trial. In 1993 the BBC asked Washington: “Why did you tell them she was black?” “I didn’t – I didn’t see a picture of her in the newspaper when she got killed or nothing. I just figured she was black.” “You figured she was black?” “Yes, sir.” “Without knowing what color she was?” “Yes, sir.”

Washington also said Williams was “kind of short,” but she was 5’8″. He said she was “not fat, just a little heavy,” but she was 180 lbs. He said there was no one else in the apartment, but the victim’s children were there when she was discovered. He said he didn’t take his clothes off, just lowered his trousers. But when asked to identify a shirt, he said it was his and he’d taken it off because it was bloody. He said he kept his jacket on. He said he stabbed the victim two or three times, but the autopsy showed 38 wounds.

Wilmore said in court that Washington described seeing a woman walk along the sidewalk. Wilmore said that Washington then recounted entering her apartment through an unlocked door. But in another version Washington had said he kicked the door in and didn’t know who lived there. No damage was found on the door. Washington also said he cut himself, but his blood was never found in the apartment.

Wilmore said Washington looked at a shirt that Hart held up in front of him and said it was his. Asked what was unique about it, Washington pointed to a spot where a patch had been ripped off it. Scott did not ask Wilmore why he didn’t have Washington describe the shirt before seeing it.

“[The police] asked him ‘This is your shirt, isn’t it?'” said Freedman. “Not, ‘What were you wearing that day?’ This is just incompetence in police training….They try to confirm a theory….Even if the shirt has anything to do with the murder, there’s zilch link to Earl.” Many police interrogation manuals, in fact, warn against the risk of obtaining a false confession, particularly if leading questions are used with a mentally retarded witness.

As part of the record of Wilmore’s testimony in court, a transcript of his questioning of Washington is included. Washington’s says that two guys he doesn’t know drove him to Culpeper for no particular reason, and that they parked the car and he got out at the victim’s apartment. That’s the last the two guys are heard of in the story. Washington says, in this version, nothing about seeing a woman walking on the sidewalk. He says, rather, that he kicked the apartment door in and that he didn’t know whose apartment it was. Upon urging, he says that the door was unlocked. He does not explain why he kicked it in or how he knows it was unlocked. Then he says that he stabbed the woman once or twice, although the autopsy report showed 38 stab wounds. Scott never raised these questions during the trial.

The record shows that Hart then asked Washington “Was the radio in the apartment on or off?” – not “Was there a radio in the apartment?” Washington replies “On, but it wasn’t very loud.”

Wilmore asks, “Was there anyone else in the apartment?”

Washington replies, “I didn’t see anyone.”

This recorded interview is clearly not Washington’s first with Wilmore and Hart, because it refers to their having already shown him the shirt. In fact, according to Hall, it is confession no. 4. So, Washington had some idea what answers to give before he said the words recorded by Wilmore. Yet, he was still unable to make much sense. Wilmore asks Washington if he’d been in “the apartment” before. Washington, as always, appears to try for an answer as close to indecisive as possible. He says he’d been there once before with a friend he doesn’t remember. How this fits with his not having known whose apartment it was is not clear. Hart, apparently looking for a different answer, switches the term “apartment” to “house,” asking Washington if he went in “the house.” Washington says “No, I stayed on the outside.”

Washington’s confession consists largely of numerous responses of “Yes, sir,” to questions asked by Wilmore and Hart. Washington was not himself able to produce information about the crime to which he was confessing. “They taught him the whole story,” said Eric Freedman.

In Hall’s files is a record of a June 8, 1992, interview by Mollie Cupp of John Lynn, who was defense attorney for Washington’s Fauquier charges and is now commonwealth’s attorney in that county. Cupp worked with Marie Deans at the Va. Coalition for Jails and Prisons in the mid 90’s. “Lynn described Earl as being like putty. He says you have to ask him leading questions to get him to answer anything. He said, ‘I could go in and say “Did you have a good day, Earl” “Yes” “Did you get shot five times today?” “Yes”.'”

After questioning Washington in Fauquier, Hart and Wilmore drove him to Culpeper so that he could point out the apartment where the crime occurred. In a preliminary hearing, Hart said Washington volunteered that he wanted to show them the crime scene.

Hart drove, with Washington in the front seat and Wilmore sitting behind Washington. Hart said they took Washington to several apartment complexes, and that he said they were the wrong place. When they came to Village Apartments, Hart said Washington first said it was not the right place, and then said “wait.” This reportedly occurred twice. Then Wilmore pointed to the right apartment and asked Washington if that was the one. He agreed that it was.

In Wilmore’s testimony during the trial, he said Washington at first directed them to the wrong place. They then took him to others, which he told them were wrong. When they came to Village Apartments, it took three tries and parking there to get Washington to point out an apartment, which was the wrong one (a detail Hart hadn’t mentioned). Then Wilmore pointed to the right one, and Washington agreed, claiming he’d known it all along. Scott did not question the inconsistencies in these stories. Although Hart was put on the stand three times during the trial, Scott declined to cross-examine him all three times.

After the crime, Washington said, he hitchhiked a ride with a white man, and threw the knife out the window of the car. This man was never identified, and the story of Washington’s ride with him never developed in detail. For example, we do not know whether the man saw Washington throwing the knife out of the car window. The knife was searched for but not found.

Scott brought up the fact that Washington has a very low IQ, but did not use this fact to explain that he confessed – as it appears likely he did – in order to please the men questioning him. In fact, Scott hardly questioned the investigators’ techniques at all. Instead, he put Washington on the stand to deny that he had made the confession.

“Presumably, that wasn’t the plan,” said Freedman. “Presumably the plan was to have Earl say ‘I didn’t do any of those things,’ not to deny signing the confession. When he denied signing the confession, the prosecutor had a field day….It was an absolutely incompetent defense. This case was the same pattern as three that were dismissed.”

Asked about the case recently, Hart said he did not recall whether the confession presented into evidence was the fourth one. He said, “The court ruled on that case. It’s an old case. The jury decided.”

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