This petition for a pardon seeks gubernatorial relief for an innocent man facing execution.

Earl Washington, Jr. is a 33-year-old, black man with mental retardation. His IQ score of 69 ranks him in the bottom 2% of the population. He functions at about the level of a ten-year-old child. He is cooperative, indeed gentle, deferential to those in authority, and eager to please any interlocutor. In a prosecution that relied exclusively on his own statements to the police -- and in which the jury was not informed of then-existing forensic evidence, known to the prosecution, that was facially inconsistent with his guilt -- Mr. Washington was convicted and sentenced to death for the rape and murder of a white woman. Unrepresented by counsel, he came within days of execution.

The justice of that conviction has been in doubt for years: the "confession" upon which it was based was the product of days of police rehearsal and re-shaping, and it emerged from the same series of interrogations that produced four other confessions that the Commonwealth has explicitly or implicitly acknowledged to be false.[1]

Recently, however, Virginia's state crime laboratory has put Mr. Washington's innocence beyond question. The crime laboratory performed DNA testing on semen left inside the body of Rebecca Williams and had its work subjected to verification by the same outside expert whose report was relied upon to pardon Walter Snyder, Jr. The test results, read in light of the prosecution's own undisputed testimony describing Rebecca Williams dying declaration, show that Mr. Washington did not commit the crime.

Yet the judicial system now offers to Mr. Washington only one remaining step, presentation of a certiorari petition to the United States Supreme Court -- and that Court will not consider the new evidence. Mr. Washington must seek relief from the Governor...

IV. The DNA Evidence

While the case was pending on appeal to the Fourth Circuit for the second time, the parties began discussions for the purpose of arranging for DNA testing of biological samples that had been taken from the body of the victim. They eventually agreed that testing would be carried out both by the central laboratory of the Virginia Division of Forensic Science and by an expert chosen by Mr. Washington's attorney. (The latter was Dr. David Bing of Boston, whose results the Governor relied upon earlier this year in pardoning Mr. Snyder on rape charges.)

The Commonwealth reported its results first. . . These were as follows: Mr. Washington has DNA type 1.2, 4; Rebecca and Clifford Williams both are of DNA type 4,4; the DNA type of the sperm found in Rebecca Williams body was 1.1, 1.2, 4. Thus, as the crime laboratory reported, the sperm contains a genetic characteristic (a 1.1 allele) that could not belong to any of these individuals. Put another way, sperm with a 1.1 allele is inconsistent with both Mr. Washington and Mr. Williams. Thus, the sperm must have been contributed by another person. Doubtless, this person was the real perpetrator of the crime. But in any event, it was not Mr. Washington.

To be sure, as the crime laboratory states, if some hitherto-unmentioned person (one with a 1.1 allele) had joined with Mr. Washington in raping Rebecca Williams, then this might provide an explanation for the test results. That hypothesis, however, is entirely inconsistent with the known facts. Not only did the Commonwealth's case at trial rest on Mr. Washington's "confession," which made no mention of any such third person, but, as recounted above, Rebecca Williams stated specifically to two people (her husband, and a police officer) that she had been raped by only one man.

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 Governor has already demonstrated his appreciation of the force of this consideration. The situation here is precisely that which existed in Mr. Snyder's case . . There, as reported by the Commonwealth Attorney for Alexandria, "It is clear that the only source for the relevant [sperm evidence] would be the assailant in the case, or someone else with whom the victim had recent sexual contact. All experts agree that a possible explanation of the results could arise from evidence of a third party donor of the tested material. However, they also all agree that this is very unlikely given that the victim stated at trial that she had vnot had sexual contact with anyone else for ten days prior to the rape." Thus, notwithstanding that the victim in that case had identified Mr. Snyder and that he "was found to be among possible contributors [of the sperm] based on blood type and secretion analysis" -- both inculpatory factors that are absent here -- the Commonwealth Attorney affirmatively supported the pardon request, and the Governor granted it. In this case, too, the Governor should grant a pardon, lest an innocent man be fantasized into the electric chair.

[1]

Professor Ruth Luckasson of the University of New Mexico, a nationally-known expert on mental retardation and the death penalty whose report is included herewith, has reviewed all five of these confessions, and describes them as "archetypes of what can happen to people with mental retardation during intense questioning. "